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New bias threat seen from obesity

EEOC suit, law change spark concerns

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NEW ORLEANS—An Equal Employment Opportunity Commission lawsuit that charges a nonprofit organization with obesity discrimination could signal future lawsuits by the agency and plaintiff attorneys on the issue, many experts warn.

A further worry for employers is that recently enacted Americans with Disabilities Act amendments, although not applicable to this case, make employers even more vulnerable to disability bias charges, including lawsuits where obesity is an issue, these experts say.

The safest way to avoid problems, according to experts, is to rigorously avoid making any assumptions about the capabilities of anyone who either has a disability, or can be perceived as having one.

The lawsuit filed Sept. 30 by the EEOC in federal district court in New Orleans charges Philadelphia-based Resources for Human Development Inc., a nonprofit human resources organization, with firing Lisa Harrison in September 2007 because of her severe obesity. Ms. Harrison began working with RHD in 1999 as a prevention/intervention specialist. She worked with young children of mothers undergoing treatment for addiction at an RHD facility that operated under the name Family House of Louisiana, in Terrytown, La.

Ms. Harrison, who died in November 2009, was about 5 feet 2 inches tall and weighed more than 400 pounds, said EEOC senior trial attorney Gregory T. Juge, who would not disclose the causes of her death. Her estate is pursuing the lawsuit.

The EEOC charges that because of her obesity, RDH perceived Ms. Harrison as being substantially limited in several major life activities, including walking, although she was able to perform all the essential functions of her position with or without accommodation. The lawsuit seeks compensation for losses resulting from her termination, among other things.

RHD issued a statement saying in part it “emphatically and categorically denies that it discriminated against Lisa Harrison on the basis of her obesity. RHD looks forward to being fully exonerated of any such claims and will defend itself against these baseless charges, should the EEOC continue to pursue them.” The company added that it was “extremely disappointed that the EEOC filed this action without first conducting an investigation or allowing RHD to demonstrate the wrongness of the EEOC's position.”

While the EEOC charges that Ms. Robinson's employer perceived her as disabled, employees also can successfully file discrimination charges against their firms if they are, in fact, disabled, or have a history of disability and are treated unfavorably. The law requires employers to provide a reasonable accommodation unless doing so causes significant difficulty or expense.

Mr. Juge said the case does not present a new drive on the part of the agency. The EEOC looks at this issue “with close scrutiny all the time,” he said.

Allan H. Weitzman, Boca Raton, Fla.-based partner with law firm Proskauer Rose L.L.P. and co-head of the firm's employment law counseling and training group, said obesity discrimination claims “have been around for a long time and I would not look at this case as newsworthy or the setting of any trend.”

But others disagree, and believe this case could signal more litigation.

The case “sounds a cautionary note for employers that they should be aware that the EEOC is taking an interest in claims of discrimination by obese individuals,” said Laura Sack, a shareholder with law firm Vedder Price P.C. in New York.

Margaret J. Grover, an attorney with Kronick, Moskovitz, Tiedemann & and Girard in Walnut Creek, Calif., said, “I think this is a case that we have to watch very carefully.” Ms. Grover said while there have been court rulings saying that those who are obese are not in a protected class, “I know the EEOC is trying to change that outlook and that it's going, I think, to be relying heavily on a lot of the literature that's come out talking about an epidemic of obesity which seems to make it a medical classification.”

“Sometimes, these obesity cases in the past haven't really gone anywhere, but the fact that the EEOC is taking this on may end up having plaintiffs attorneys take a second look at these kinds of issues,” said Sally Griffith Cimini, a shareholder with law firm Babst, Calland, Clements & Zomnir, P.C. in Pittsburgh.

In a society, “where people are starting to pay attention to obesity and its long-term effects, I think that it doesn't surprise me that we're actually running into this kind of claim,” she said.

Experts say the ADA Amendments Act, which is not applicable in Ms. Robinson's case because it was enacted in January 2009, after her termination, will make it more difficult for employers to win summary judgments in discrimination cases, including those where obesity is involved.

Among other changes, the act expands who is covered under the “regarded as” disabled category, which experts say could be applicable to obese individuals (BI, Aug. 2).

Jonathan T. Hyman, a partner with law firm Kohrman Jackson & Krantz P.L.L. in Cleveland, said with the Amendments Act, for employees to successfully file discrimination charges, “it's enough that the employer perceives them as having some kind of impairment that substantially limits them and it's a totally subjective test.”

William R. Pokorny, a partner with law firm France Radelet P.C. in Chicago, said, “The courts obviously have not done a lot of interpretation under the new law, so we don't know exactly how this is going to come out,” but “it's clear it's going to be a much broader standard” for establishing coverage under the ADA.

Ms. Cimini said employers should not make assumptions based on a worker's characteristics. “You really have to look at somebody's actual ability to do a job, and you have to look at the actual performance factors.”

Ms. Sack said “employers should always take care to make every employment decision based on legitimate business needs, and not on personal characteristics that have nothing to do with someone's ability to perform the job at issue.”

They should also consult with their counsel if they “are contemplating taking employment action against someone whom they believe may have a medical condition that may constitute a disability,” she said.

Mr. Hyman said an employer needs “to be doubly, or triply, vigilant in how it handles personnel issues” with individuals who have medical conditions “in making sure that all work rules are followed, that all performance problems are documented, that they are treated no worse, if not better, than other similarly situated employees without medical conditions.”