Is obesity the next protected category?

by Michael Haberman on May 28, 2014 · 0 comments


Could this be the next protected category?

Could this be the next protected category?

Back in 2009 I wrote a series on ISMs. You know, racism, sexism, ageism, those discriminations that we end with an –ism. One of the ones I wrote about was what I called “Fatism.” It wasn’t a word then but I said it could become one in the not too distant future. A recent article by attorney David Katz of the firm of Mintz Levin has indicated that the courts are moving in the direction of making it a protected category.

The case

Katz discussed the case of Whittaker v. America’s Car-Mart, Inc., where ex-employee Joseph Whittaker sued saying he had been wrongfully fired from his job due to his obesity. According to Katz “Whittaker further contended that he was able to perform all of the essential functions of his job, with or without an accommodation. America’s Car-Mart moved to dismiss Whittaker’s disability discrimination claim on the grounds that severe obesity is not a “disability” under the ADA in the absence of an underlying physiological disorder.

Katz further said the judge in the case rejected the company’s case saying they had relied on outdated cases and information that had pre-dated the Amendments Act. The judge “pointed out that the EEOC takes the position that severe obesity is a disability under the ADA and does not require proof of an underlying physiological disorder.” So chock one up for the plaintiff.

New world

Katz points out that this decision was not that big of a shocker and follows in the footsteps of many post ADAAA decisions. The Americans with Disabilities Act Amendment Act has been a game changer. Katz said that there is little doubt that people who are described as being “morbidly” obese will be seen as being protected under the ADAAA. He raises the question of who may actually be covered. I raised a similar question in my post. One statistic I quoted was that in the U.S. 65% of the population is overweight or obese. Katz points out “What is less clear is whether courts will find that “moderate” obesity (which describes roughly one in every three Americans) without an underlying physiological condition is a “disability” under the ADA.”

According to Katz the American Medical Association has recognized obesity as a disease. He wonders, as do I, are we all that far away from courts and governments recognizing obesity as a disability? We may see action on the state legislature level before we see it on the Federal level, but it is coming.

In this country “Thin may be in” but being heavy will be protected.


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