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December 2011
Is Obesity a Disability?
By Gary Smith

Is Obesity a Disability?

     The Equal Employment Opportunity Commission (EEOC) has recently asserted that morbid obesity can qualify as a disability under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The EEOC contends, with regard to one employee in particular, that this obesity substantially limited the employee in one or more major life activities.

     The employer terminated the employee because, according to the employer, he could no longer perform his job. The employer is alleged to have not allowed the employee to transfer to a different job and to have not engaged in any process to determine if reasonable accommodations could be made to allow him to perform his job. Because of this, the EEOC alleges the employer violated the ADAAA.

     The EEOC alleges that the employee could perform his essential job functions and that he was replaced by a person who was not morbidly obese.

     In 2006, the Sixth Circuit Court of Appeals held that obesity must have a physiological cause. However, that was before the ADAAA. One court has held that, under the ADAAA, obesity does not need to be linked to a disorder. Further, under the ADAAA, an employer’s “perception of disability” may create protections for employees even when a true disability is not present.

     It is also important to remember that major bodily functions are included as part of major life activities so that, if any of them are substantially impaired, a disability may exist. The bodily functions include digestive, bladder, reproductive and other functions.

     While there is no clear cut answer to the current case about whether morbid obesity is a disability, it appears that the scales may be tilting in favor of it being a disability, either because it qualifies as substantially limiting a major life activity or because the employer believes it does.

     A general note about important differences in the Family and Medical Leave Act (FMLA) and ADAAA: While an employee may not have a condition that qualifies for leave under the Family and Medical Leave Act (FMLA), that condition may require the employer to provide leave as a reasonable accommodation for the disability. The ADAAA applies to employers with 15 or more employees, while the FMLA does not apply until the employer has 50 employees. Further, the ADAAA applies the first day of employment, while the FMLA does not apply until after 12 months.




Your Employee Handbook May Be an Employment Contract

     Your employee handbook says all the right things. It tells employees that their employment is “at will.” You document your employee files with written performance reviews and written notices of misconduct. You just terminated an employee as a result of misconduct. You should not have to worry about claims by the former employee. Unfortunately, you still do.

     Rite Aid recently had just such an issue with its employee handbook. The employee handbook stated that employees are “at-will.” The employee in question was terminated as an employee for documented misconduct. The employee even admitted the misconduct.

     However, South Carolina law requires a disclaimer of “at will” employment in underlined capital letters on the first page of the employee handbook, and the disclaimer must be signed by the employee. While it appeared that the employee did not sign the disclaimer, the court did not find that that was the problem.

     The problem came from another policy outside the employee handbook. This policy contained a mandatory discipline procedure for dealing with specific misconduct that was listed as one of the reasons the employee was fired. This policy did not have the disclaimer regarding the employee’s “at will” status.

     Rite Aid argued that the employee’s employment was not terminated based solely on misconduct covered by the separate policy. However, because the termination was in part based on the misconduct covered by the policy, the employee gets to argue his case to the jury.



Political Support for Business

Ø   A recent survey in Inc. magazine asked business owners what they believe to be true about federal government currently:

2% were highly satisfied with its effectiveness, and

67% were highly unsatisfied.

Ø   The two big issues on business owners’ minds were unemployment/job creation and the budget deficit.

Ø   When asked which political parties best support small business:

35 percent answered that no party supports small business,

23% believe Republicans best support small



Content contributed by Wishart, Norris, Henninger & Pittman, P.A., which partners with owners of closely-held businesses to provide comprehensive legal services in all areas of business, tax, estate planning, succession planning, purchases and sales of businesses, real estate, family law, and litigation. For more information, contact Gary Smith at 704-364-0010, follow on Twitter @glawnews, or visit


Gary Smith is an attorney at Wishart, Norris, Henninger, P.A.
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