Obesity Bias Is A Growing Trend In Recent Employment Litigation byLindy Korn, Esq.

Obese employees are sometimes “regarded as disabled,” whether they suffer from a physiological impairment, and may have claims under the Americans with Disabilities Act.

Consider the case being litigated in federal court in Connecticut. The plaintiff, Warner, began working for the Asplundph Tree Expert Co. in 1985. A year later, he was promoted to foreman, and received positive performance evaluations. But the good times ended for Warner in November 2001, when he was laid off. The plaintiff claims a general foreman told him that he was being laid off because of a decline in business, and that he would be rehired a few months later.

However, a former co-worker allegedly told Warner he was let go because he was “overweight” and was “going to die on his job site.” Warner, who is 6 ft., 1in. tall and claims in his complaint that he weighs approximately 300 to 350 pounds, primarily directed tree removal services by other employees. H alleges that, although he continued to contact Asplundph Tree about coming back to work, his follow-up calls were not returned. Warner was never rehired by the company, although he alleges the company hired several new workers over the same time period.

The plaintiff filed suit July 23, 2003, asserting violations of the ADA and the Connecticut Fair Employment Practices Act. The suit was prompted by the plaintiff’s unreturned phone calls and the comment from his co-worker, which made him feel “angry, hurt and shocked.”

Weight-related litigation in the employment arena is on the rise and may be attributed to class action suits against fast food chains and lawsuits against school districts that welcome students to use their vending machines. Litigations over weight issues has been called the “condition du jour” by some employment lawyers representing management.

The risk management lesson here is that unreturned phone calls from recently laid off employees and comments connecting being laid off to being overweight may provide “pretext” for an obesity-base claim of discrimination.