Employers can expect to be more frequently accused of engaging in disability discrimination against obese employees and job applicants in litigation filed by the federal Equal Employment Opportunity Commission and private plaintiffs, experts say.

The lawsuits may not necessarily be about the obesity itself, but relate to conditions associated with being overweight, including diabetes and high blood pressure, which are considered disabilities under the Americans with Disabilities Amendments Act of 2008.

Obesity is generally recognized as a growing problem. According to the Centers for Disease Control, 35.7% of adults, or more than 72 million people, are considered obese, based on having a body mass index — which is determined by weight and height — of at least 30. A total of 6.3% of the population is morbidly obese, based on a BMI of at least 40.

“Certainly, anybody with morbid obesity would be considered a person with a disability under the more liberalized definitions of the ADA Amendments Act,” said Robin E. Shea, a partner with law firm Constangy, Brooks & Smith L.L.P. in Winston-Salem, N.C. “Also, anybody who is obese because of an underlying medical condition, whether or not their obesity itself is protected,” might be considered disabled as well.

The issue has been the subject of increased scrutiny by the EEOC and the courts, experts say (see related story). The EEOC has filed more lawsuits against employers and “there's been more activity on the individual plaintiff side as well,” said Nathan Pangrace, an associate with Roetzel & Andress L.L.C. in Cleveland.

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Martha J. Zackin, of counsel at law firm Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C. in Boston, said she expects more litigation on this issue. “Our population's getting larger, and the (EEOC's) definition of disability is getting broader,” she said.

“The law relating to this issue continues to evolve,” said Laura Sack, a shareholder at law firm Vedder Price P.C. in New York. The enactment of the ADA Amendments Act “may make some of these claims a little bit easier to bring, or more common.”

Mr. Pangrace said the act's intent “was really to get employers to focus more on accommodating the disabilities, rather than questioning that the employee was disabled to start with. It's really shifting a burden from the employee to prove that he or she is disabled to the employer to accommodate those disabilities.”

Some legal observers think the courts are moving toward defining obesity as a disability. Eric E. Kinder, a member of law firm Spilman, Thomas & Battle P.L.L.C. in Charleston, W.Va., said, “At this point, I don't think they are a truly protected class unless you are looking at individuals who are severely or morbidly obese, but I can see a trend in the direction that they are becoming more of a protected class. It's largely the EEOC's interpretation of the ADA Amendments Act, and their enforcement of it, more than any litigation that I've seen.”

“I think we are moving towards obesity itself being defined as a disability,” said Margaret J. Grover, an attorney with Kronick, Moskovitz, Tiedemann & Girard in Walnut Creek, Calif. “I'm seeing things chip away at the edge of it,” she said. “We've seen a lot of press on obesity being an epidemic,” and that it shortens life expectancy, “so I think the courts will catch up with the medical information.”

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Ms. Shea said, “I definitely think a court would be more likely nowadays to find that at least a person who qualifies as obese, as opposed to needing to lose 25 pounds, would be protected” under the law, “either because of the obesity itself, or because of one of the associated medical conditions.”

“It's kind of a gray area right now,” Mr. Pangrace said. Under the ADAA, “essentially a disability now is any serious health condition that can substantially affect a major life activity,” which can include walking, dressing yourself or going to the bathroom, he said.

“Since the act has been amended, we've seen some courts being increasingly lenient with the definition of a disability, and expanding that to cases of people who are obese. Now, it can't simply be somebody who's overweight typically.” The cases involve “people who are extremely overweight to the extent that it really affects their performing these daily tasks,” Mr. Pangrace said.

Kristine E. Kwong, a partner with law firm Musick, Peeler & Garrett L.L.P. in Los Angeles, said, “Medical conditions in general is a growing protected category, and there are more and more claims that are filed over disabilities, and because of that you're going to see more and more of these issues arise.”

Ms. Zackin said, though, “It's hard to quantify exactly at what point” obesity is considered a disability “because it's a matter of case law and a matter of how the ADA amendments are interpreted, and how the definition of disability is intercepted.” But under the ADA Amendments Act, the definition of disability “has significantly broadened, and the EEOC certainly takes the position” that obesity is a protected disability.

“It's starting to be litigated, and I think that over the course of time, there'll be lines drawn as to where does the overweight and not disabled come in, and where does obesity become a disability. A part of it is not the weight per se, it's the impact of that on the individual, whether somebody has diabetes, or has trouble walking a distance,” Ms. Zackin said.

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Ms. Zackin said in one case she was involved in an employee needed a seatbelt extender for a forklift, so it became a safety issue. The issue also has arisen in hospitals, where an obese nurse could affect a patient's safety. In that case, an accommodation would be to have somebody else do any job-related lifting.

“Right now, I would highly advise people to get their lawyer involved until we get a clearer picture and more courts have weighed in on this,” said Robert E. Gregg, a partner with law firm Boardman & Clark L.L.P. in Madison, Wis., adding he presumes more courts will rule that obesity, absent any other factor, is a disability.

“We're going to have to get into the issue of what is obesity,” Mr. Gregg said. “It still requires an assessment, because does that mean 30 pounds overweight, 50, 100? We're still going to have a lot of issues of getting a handle on this.”