I recently attended an interesting presentation on the obesity epidemic, which used to be an American issue but is more and more becoming a global one. In Japan, for example, companies are required to measure their employees’ waistlines and companies face penalties if their workforce remains over the Japanese national guidelines (of 33.5 inches for men and 35.4 inches for women). This led me to wonder whether Japanese firms would try to fire (or decline to hire) people over those guidelines, which led me to wonder whether American workers who are overweight can be fired because they are heavy.
In the United States, several federal laws bar discrimination in employment on a number of grounds. In a recent post, I outlined those laws. The only one that seems to apply in this case would be the Americans with Disabilities Act (“ADA”). So does the ADA prohibit an employer from firing an employee because of his or her weight? I’m not aware of any cases that specifically address this issue, but I think the answer may well be “yes.”
The ADA defines someone with a disability as someone who falls into one of three categories:
- has a physical or mental impairment that substantially limits one or more major life activities;
- has a record of such an impairment;
- is regarded as having such an impairment.
42 U.S.C. § 12102. A “major life activity” includes “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. Thus, if a person is so overweight as to suffer a substantial limitation in tasks such as walking, standing, lifting, bending, or breathing, the person qualifies as disabled under the “actual disability” prong. Also, the impairment of a major bodily function counts as a major life activity, so if the person has an impairment of her circulatory system, for example, that would qualify as an actual disability.
Moreover, the employee could claim “regarded as” disability by showing that she was subjected to a prohibited action because of the perception that her weight substantially limited her in a major life activity, regardless of whether it actually limited her. In other words, “he fired me because he doesn’t think fat people are hard workers” could be sufficient grounds to form an ADA violation.
As with any employment situation, the employer should uniformly enforce its legitimate employment policies and should carefully document any violations of those policies in a progressive discipline manner. The employee who is the subject of adverse action should carefully consider whether the employer’s action might have been unlawful.
