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The Expanding Ranks of the Disabled

New guidelines from the American Medical Association consider obesity to be a disease, which means many more working Americans could now be classified as disabled. That may make HR departments responsible for obese employees in a whole new way.

Tuesday, September 10, 2013
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Obesity now affects approximately one in three Americans, according to recent data.

For this reason, says Dr. Patrice Harris, board member of the American Medical Association, the association adopted a policy in June that recognizes obesity as a disease, with the expectation that changes will be made in the way the medical community deals with obesity and obesity-related conditions like diabetes and heart disease.

While there currently is no federal law prohibiting discrimination against obese individuals, the AMA's recent announcement could bring about legislative changes that could affect the way employers deal with overweight employees. Some experts also fear that companies might face more disability-related lawsuits as a result.

Mark Zelek, an employment attorney and partner in the Miami office of Morgan, Lewis & Bockius, says state legislators in Michigan were "ahead of their time" when they enacted the Elliott-Larsen Civil Rights Act in 1976.

"Michigan makes it illegal to discriminate on the basis of weight and height. They're the only state that does this," he says, adding that judges throughout the country have long considered the issue of whether obesity may constitute a disability. However, attitudes toward obese employees have long been less-than-welcoming.

According to the Yale Rudd Center for Food Policy and Obesity, weight bias against overweight or obese individuals in the workplace is as prevalent in the United States as racial discrimination.

"The general public has for years thought of obesity as a choice that people make," says Ted Kyle, vice-chair of the Tampa, Fla.-based Obesity Action Coalition and advocacy chair for the Obesity Society.

"Choices can have a big impact on someone's health," he says, "but people don't choose to have a chronic disease. Employment [decisions] should instead be made [based] on a person's ability and qualifications to do the job. Research shows that the greatest penalty is suffered by women with obesity who see more limitations to their earning power and positions they can achieve."

Referencing the Michigan law, Kyle says, "In the 1970s, some predicted it would cause a flood of litigation, but that wasn't true; very few cases have been brought. It brought more awareness that there's a valid basis for employment decisions, and there has been a lower rate of discrimination against women in Michigan than is seen in the rest of the country. "

New York-based attorney Nita Beecher, compliance chair for Mercer's U.S. Diversity Networks, says the days of turning away overweight job applicants are over, especially since affirmative action for individuals with disabilities was announced Aug. 27 by the U.S. Department of Labor's Office of Federal Contract Compliance Programs.

According to the Department of Labor, changes made to the regulations implementing Section 503 of the Rehabilitation Act of 1973 were established to improve employment opportunities for individuals with disabilities. "This means that federal contractors must attempt to hire and promote individuals with disabilities," explains Beecher, noting that Section 503 now establishes a nationwide 7-percent utilization goal for qualified individuals with disabilities, including veterans.

http://www.hreonline.com/images/153576724expandingranksL.jpgImplementing a cultural change in the workplace will help an organization to be more accepting of individuals with disabilities. Beecher points to the example of a company she's working with that set up a scenario of online training. "They have the manager walk through a situation with a person who has diabetes and needs to eat at a certain time, but they're attending a meeting that runs through a meal.  The solution they came up with was to order food for everyone during the meeting, because you don't want to single that person out. Go beyond and find a way to make it easier for that person."

She stresses the importance of putting together a team of people who know the company to set up a reasonable accommodation process. "Training employers in an overall culturally aware way will make them better employers for everyone. Bring in people with disabilities to talk about what they're going through. It helps other employees to understand why accommodations are being made and how it's in the employer's best interest."

As a result of the AMA's new guidelines, Washington-based Equal Employment Opportunity Commission Public Affairs Specialist James Ryan says "the morbidly obese now have protections they never had before."

"The Americans with Disabilities Act prohibits discrimination against people with disabilities, defined as impairments that substantially limit a major life activity," he says. "Under this definition, it would prohibit discrimination against the morbidly obese, since morbid obesity, as defined clinically as opposed to colloquially, is a covered impairment that can affect the major life activities of endocrine function, as well as others.

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"Since 'morbid obesity' constitutes an ADA-covered impairment," says Ryan, "taking an action based on an employee's morbid obesity would violate the ADA. Also, as a result of the Americans with Disabilities Act Amendments Act, which broadened the definition of impairment, taking an adverse action based on an impairment would amount to regarding the individual as having a disability, which is also prohibited by the ADA," says Ryan.

He acknowledges that those people who may be overweight -- but not considered to be morbidly obese -- might not be directly covered by EEOC-enforced laws prohibiting discrimination because they would not have a covered disability. 

"However, if the overweight was caused by another impairĀ­ment, such as Cushing's Disease, medication for depression, thyroid condition, etc., any adverse employment action based on the individual's weight would be prohibited as disability discrimination," says Ryan. "We want to emphasize that, while EEOC-enforced laws may not cover people who are overweight but not morbidly obese, the entire thrust of our mission is to have people considered for employment based on their qualifications and experience -- not on factors irrelevant to job performance."

Michael Studenka, a partner at Newmeyer & Dillion in Newport Beach, Calif., says a clear job description stating any physically demanding duties is a good first defense for employers.

"Job descriptions need to be detailed and really list the essential functions of the job," he says. "I recommend whoever is drafting job descriptions contact supervisors and make sure the description is actually what occurs on the floor. And both the hiring supervisor and HR have to have input on proper job descriptions."

Studenka also stresses that communication is key. "There's an interactive dialogue that needs to occur between employers and employees. Once the employer is aware of the disability through discussion, the employee can express to the employer what the condition does to them, and the employer finds out how they can reasonably accommodate them."

"Disability is not well-defined," acknowledges labor-and-employment attorney Michael Newman of Barger & Wolen in Los Angeles. He advises HR leaders to consider obesity as if it is covered under the ADA, because the scope of this law -- unfortunately, like so many Americans' waistlines -- may only get bigger.

"There's always room to expand it, and it's always expanding, never contracting," he says. "Defining obesity as a disease has opened the door for people to start claiming that the rules imposed by the ADA apply to them, too. It comes down to a question of what we're in the habit of thinking as a society."

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