Disability perception is vital to avoid ADA lawsuit

As you probably know, two-thirds of Americans are overweight. But did you know researchers found people display more negative attitudes toward overweight employees than toward ex-felons or ex-mental patients?

Not only does the “Battle of the Bulge” wreak havoc on employers’ health-care budgets, it’s also at the heart of many a discrimination lawsuit. While low-carb diets, wellness programs and personal trainers aim to take inches off waistlines, HR can do its part. By exercising smart policies you can help your employer avoid ADA lawsuits by employees who are either harassed by supervisors and peers or who face adverse actions because of managers’ stereotypes about obesity.

The skinny on ADA Compliance

Doctors classify people with more than 30% body fat as obese. Those with more than 39% body fat or who are at least 100 pounds above their ideal body weight are considered morbidly obese.
According to the EEOC, obesity in and of itself isn’t a disability. Therefore, discrimination based on obesity doesn’t violate the Americans with Disabilities Act. But that won’t necessarily get an employer off the hook. The EEOC and numerous courts have recognized morbid obesity as covered by the American Disabilities Act.

What’s more, an employer may be non ADA compliant if it disciplines, fires or refuses to hire an overweight – but not morbidly obese – individual because of the perception that obesity will interfere with job performance. In such a case, the person need not be morbidly obese because the claim is based on the employer’s perception. And that’s discrimination.

Experts recommend employers think long and hard before refusing to accommodate overweight employees who are not morbidly obese.

For example, if an overweight individual on an assembly line has difficulty standing for long periods of time and requests a stool, the request should be considered carefully, even if you believe the worker’s extra poundage doesn’t qualify him as disabled.

Think long and hard about disability rights

An employee who isn’t morbidly obese may be protected by the Americans with Disabilities Act if a related condition such as hypertension, diabetes or heart disease limits a major life activity like walking or performing manual tasks.

Employers should take a practical approach to managing overweight workers. Here are guidelines to help your organization avoid an ADA lawsuit.

· Maintain accurate job descriptions. This helps ensure weight requirements are aligned with the essential requirements of the job instead of a manager’s prejudice. Example, if a machine operator beyond a certain size can’t fit in the operator’s seat; spell it out in the job description.

· Create sound policies. Write and enforce ADA compliant policies promoting courtesy and tolerance. And back up those policies with training about acceptable (and unacceptable) workplace behavior. Insensitive treatment of an overweight individual may easily precipitate a discrimination lawsuit.

· Train managers. Under ADA law, perception counts. Managers must understand if they refuse an accommodation because they “perceive” an overweight worker as disabled, it could trigger an ADA lawsuit.
Source: “Potential ADA Claims Grow with Workers’ Waistlines,” by A. Kevin Troutman, Fisher & Phillips, LLP, 2004.
HR 2.22

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