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Is Obesity a Disability?

Written by: Charla Bizios Stevens

EEOC is Busy at Work Enforcing Discrimination Laws and Broadening its Reach

(Published in the Portsmouth Herald, October 2010)

The economy continues to languish; unemployment remains relatively high, even in New Hampshire; and claims are up.  Employers are facing greater numbers of more significant workplace discrimination claims, and the agencies charged with responsibility for enforcement at hard at work.  

The Equal Employment Opportunity Commission (“EEOC”) recently filed suit on behalf of an employee alleging that she was fired because of obesity. The employee, Lisa Harrison, worked for a Pennsylvania-based non-profit organization.  There she counseled the children of mothers undergoing addiction treatment with the New Orleans office of Resources for Human Development.  Harrison passed away before the suit was filed, but her estate will be represented in the lawsuit against the employer.
 
The suit claims Harrison was able to perform all the essential functions of her job, but her employer perceived her as being limited in major life activities, such as walking. The suit claims a violation of the Americans with Disabilities Act (“ADA”).  Keith Hill, the field director of the EEOC’s New Orleans office, said the suit is “a classic case of disability bias, based on myths and stereotypes.”
 
Although lawsuits alleging discrimination based on weight are increasing, this is the first significant action taken by the EEOC under the ADA.  Most plaintiffs have instead relied on human rights ordinances that are in effect in a handful of jurisdictions throughout the United States.  Michigan, for example, has a state law that bars discrimination against the overweight. New Jersey has a broad Law Against Discrimination which has been cited as protecting a 400-pound woman who was overweight due to a genetic condition.
 
Washington, D.C., and the California cities of San Francisco and Santa Cruz also include body size in human rights ordinances. The two California ordinances bar discrimination in employment, housing, health care and other services. 
 
The EEOC has also increased enforcement efforts focusing on employers who use background checks, credit checks and criminal record histories in making hiring decisions.  Suit was filed in 2009 against Freeman Companies, a nationwide convention, exhibition and corporate events marketing company claiming that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black, Hispanic and male applicants.  The EEOC charged that Freeman rejected job applicants based on their credit histories or one or more various criminal charges or convictions.  Freeman Companies’ practices were seen to have a discriminatory impact based on race, national origin and gender and as not job-related and justified by business necessity.  Information which disqualified employees from hire included defaulting on credit cards, prior bankruptcies and foreclosures and conviction for shoplifting.  Also of concern was the fact that no consideration was given to the age of the conviction or negative event. 

The year 2009 was stunning in the increase in enforcement and collection efforts against employers, and 2010 is unlikely to be any different.  The EEOC reported that although discrimination charges were slightly down in 2009 over 2008, last year was still the second busiest in EEOC history with 93,277 charges filed.  Although race continues to hold the number one spot nationally, retaliation is fast catching up as the leading basis for charges with 33,613 filed in 2009.   Retaliation charges along with those based on disability, national origin and religion are all up.  Locally, the New Hampshire Commission for Human Rights (“HRC”) received 323 employment based charges of discrimination in fiscal year 2009.  The number one basis was sex, including harassment and pregnancy (118) followed by retaliation (71) disability (69) and then age (40).

It is often easy for employers to cut back on their training budgets in a soft economy.  Managers are juggling many responsibilities, and time and money are precious.  Nevertheless, it is critical that careful attention be paid to updating workplace policies and making sure managers are properly trained in how to avoid being the subject of a discrimination. Companies should also work closely with employment counsel to make sure that complaints are handled appropriately, and retaliation is avoided at all costs.
 
Charla Bizios Stevens is a Director and Shareholder in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A.  Charla can be reached at 603-628-1363 or [email protected]. The McLane Law Firm is the largest law firm in the State of New Hampshire, with offices in Concord, Manchester, Portsmouth and Woburn, Massachusetts.

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