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Thursday, December 29, 2016

Can I Be Fired for Being Anorexic, Bulimic or Obese, Underweight or Overweight?

If you are fired or discriminated against at work for being overweight or underweight, whether or not your employer is violating the law depends on whether the employer is applying standards that illegally discriminate against a class of employees that is protected by law, such as based on sex, disability, pregnancy, etc. Persons who are dangerously overweight, i.e., morbidly obese, and those underweight who have anorexia have a disability that gives them a protected status. If you are such a person and are being discriminated against, you should not sit on your rights. I am a compassionate attorney who is experienced in representing private and public employees with disabilities. I am familiar with persons suffering from anorexia nervosa and have successfully represented clients with eating disorders.

On Friday, October 9, 2015, I wrote about whether an employee can be fired for not maintaining the employer's physical appearance standards. In that article, I discussed that the State Appeals Court of New Jersey ruled that an Atlantic City casino has the right to regulate the weight of its cocktail servers reasoning that the employer's regulations were in keeping with industry standards and that they did not discriminate based on gender or sex by doing so. But even this ruling in favor of the employer carved out some exceptions.

Employees in New Jersey who are disabled are protected from discrimination under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination. The ADA’s Title I covers employment by private employers with fifteen  or more employees as well as state and local government employers. The New Jersey Law Against Discrimination (NJLAD) applies to all employers in New Jersey regardless of size.

Being simply “obese” or “very thin” does not qualify as a disability. However, if the employer perceives the person to be disabled, i.e. believes an employee has anorexia nervosa even if she does not, then there is a “perception” of disability which is also a protected class.

Anorexia nervosa is a disease that has a physical component and a mental or psychological component according to the American Medical Association. Either one or both of these components qualify anorexia as a disability under the NJLAD.  

The Definition of “Disability” Is Broader in Scope under the NJLAD than under the ADA.

The definition of “disability” is broader in scope under the NJLAD than the ADA. Under the NJLAD, a disability includes any physical or mental impairment without regard to whether it substantially limits a major life activity. It does not limit its definition to permanent or severe medical conditions.

The NJLAD defines a physical disability as to include physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment or requiring physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device.

The NJLAD defines a non-physical disability as suffering from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which either prevents the normal exercise of any bodily or mental functions or is demonstrable by accepted psychological/medical diagnosis, clinical or laboratory diagnostic testing.

The New Jersey Supreme Court Concluded That an Employee’s Morbid Obesity Can Be a Disability under the NJLAD.

In 2002, in Viscik v. Fowler Equipment Co., the New Jersey Supreme Court concluded that an employee’s morbid obesity can be a disability under the NJLAD. Obesity is considered “morbid”, at least under the NJLAD, if it prevents the person from engaging in normal activities. The Viscik Court found the employee who filed the lawsuit fit the definition of being disabled under the the NJLAD because her obesity caused her other medical conditions including obstructive lung disease, a heart condition, arthritis and knee problems resulting in a limited walking ability.

Under the ADA, a disability is a physical or mental impairment that substantially limits one or more major life activities. The ADA and the subsequent amendments, ADA Amendments Act in 2008 specifically excluded certain conditions in the statute but obesity is not specifically excluded. Regular obesity is not considered a disability under the ADA because it does not substantially limit one or more major life activity. However most federal courts agree with the EEOC that while regular obesity is not a disability, severe or morbid obesity sure is a disability because it substantially limits the person’s major life activities as defined under the ADA, such as the ability to walk and breathe which are all major life activities.

If the Employer Believes an Employee to be Disabled and that His Overweight or Underweight Substantially Limits One or More His Major Life Activities, the Employee Is Protected under the NJLAD, Even If the Employee Cannot Prove it Does Limit Such Activities.

This is not necessarily true under the ADA. The American Medical Association officially recognized obesity as a disease in 2013. When the ADA added 2008 amendments, it became more similar to the NJLAD in that the amendments added a “regarded as having a disability” element, thereby expanding the disability federal discrimination law. The NJLAD already had a “regarded as having a disability” element. Under the NJLAD, an employee was already protected from discrimination on the basis of the employer’s belief that the employee is disabled, regardless of whether the employee is actually disabled or not.

But the ADA still mandates that obesity is not a “physical impairment” unless it is a physiological disorder and affects a major body system. Throughout the US, federal courts are divided as to whether obesity is a protected disability. At least one federal appellate court has ruled that obesity is not a disability under federal law except when it is caused by an underlying medical impairment. According to the Eight Circuit Court of Appeals (which does not cover New Jersey) because the employee’s overweight was not caused by an underlying impairment, the employee could not prevail in an argument that the employer regarded him as having an ADA covered physical impairment.

Most employees who experience job discrimination due to anorexia nervosa are women because it is predominately women who suffer from anorexia nervosa. According to the Social Security SSI Resource Center, anorexia nervosa is a predominantly female condition. Approximately 90 percent of all persons suffering with anorexia are female, and 50 percent  persons suffering with anorexics are young women between the ages of fifteen and nineteen years old.

Anorexia nervosa is an eating disorder and a disability containing both a physical element of the disability and a mental/psychological element of the disability. The psychological element is characterized by body image dysphoria (a severely distorted body image) and an extreme fear of gaining weight. It is often accompanied by depression. The physical element includes a body weight that is dangerously below the recommended weight for someone of that person's age and height, and a body systems's responses that causes extreme G.I. malfunction disorders, kidney disorders, osteoporosis and numerous spontaneous stress fractures and broken bones, and eventually causes death. 

A person with anorexia nervosa has a disability that is protected from discrimination under the NJLAD, and a person who is perceived by the employer to have anorexia nervosa is also protected. Because the ADA does not contain a list of medical conditions that constitute disabilities but just a general definition of disability that each person must meet, some people with a certain type eating disorder will meet the threshold for a disability under the ADA and some will not, but the trend is that such diagnosis does qualify. If the employer believes the employee's low weight is a substantial limitation, even when the employee in unable to prove her weight substantially limits one or more her major life activities, such employee is also protected under the ADA.

Accommodating Employees with Anorexia Nervosa.

As with other disabilities, a person with anorexia nervosa or who is morbidly obese who has other disabilities attendant to the obesity, is in a protected class as an employee, and the employer has a duty to make reasonable accommodations to allow the employee to continue working.

For persons suffering from anorexia nervosa, some reasonable accommodations might be the re-assignment of non-essential tasks, such as heavy lifting to avoid fractures, allowing leave for counseling and medical appointments, permitting  modified break schedules. 

What You Can Do

If you believe you are being discriminated at work because of a disability or perceived disability, or your employer denies your returns to work or fails to provide a reasonable accommodation to allow you to remain employed, it is important for you to consult with an experienced employment law attorney. I am an aggressive and compassionate employment law attorney who is experienced in representing private and public employees with disabilities and have successfully represented clients with eating disorders. If you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.

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