Obesity alone without other limitations currently is not automatically considered a civil right protected class of “disability” under the New Jersey Law Against Discrimination. However, if obesity has caused an employee to have other medical conditions, such as cardiovascular disease, Type II diabetes, lack of physical coordination, the employee will be considered disabled.
American Medical Association (AMA) has designated obesity as a disease. Its rational was that obesity is a disease that leads to other limiting medical conditions that are recognized disabilities, such as cardiovascular disease. Although the New Jersey Courts, and the NJLAD have not included obesity when standing alone as a disability, NJ employees who are harassed, fired, demoted, or otherwise treated worse at their jobs because they are overweight may be protected when they have other limiting conditions. Every case is fact specific. Female employees who are obese may be held to a different standard and treated disparately from their male counterparts who are obese. If so, they may have an additional claim of sex discrimination. Bergen County, New Jersey Sex Discrimination Lawyer.
Don’t sit on your rights. New Jersey Disability Discrimination Lawyer. If you are experiencing harassment or discrimination in the workplace, you should contact this office immediately for a free consultation.
In Viscik v. Fowler Equip. Co., 173 N.J. 1 (2002), a case dealing with the issue of obesity under NJ law, the NJ Supreme Court had to decide 3 issues, and ordered a new trial:
1. Whether an employee claiming "handicapped" status due to obesity is required to satisfy all of the statutory criteria set forth in the New Jersey Law Against Discrimination (LAD) N.J.S.A. 10:5-5(q), and if so, whether plaintiff satisfied those requirements;
2. Whether the trial court had erred in charging the jury on reasonable accommodation for the disability; and
3. Whether the trial court's use of a reasonable or objective employer standard in its charge was reversible error, requiring a new trial.
In Viscik', due to a genetic condition, the employee was morbidly obese, and she suffered from related physical problems as a result of the obesity. The employer alleged she had a poor work ethic and terminated her because of her alleged poor work ethic after only four days of work at the employer's business. The NJ Supreme Court agreed with both lower courts that the employee had proved with medical expert evidence that she was indeed a handicapped person within the meaning of New Jersey Law Against Discrimination (LAD). It held however, that the lower court's jury instructions were erroneous, particularly its articulation of the employer's duty of reasonable accommodation for disability and thus required a new trial.
When an employer comes up with a bogus excuse for a termination to deny the illegal discrimination, the bogus excuse is considered a pretext for discrimination, a “pretextual reason” for the firing or other adverse action against the employee.
The Court held that reasonable accommodation should not have been an issue at all in an action alleging pretextual reasons for firing. It was also an error to instruct the jurors that they should apply an objective test in evaluating the employer's reasons for firing.
At the original trial, the Plaintiff’s treating physician since 1991, testified that her medical condition had been diagnosed as "morbid obesity," and that it was genetic in cause. Her doctor testified that "morbid obesity," refers to a disease or diseases that occur as a result of obesity and prevent normal activity, such as the Plaintiff’s arthritis, restrictive lung disease, and depression. Her doctor further testified that her obesity constituted a handicap.
Plaintiff testified about the limits that her morbid obesity imposed in relation to her knee. She verified her inability to move around quickly and need for a cane. She also explained the effects of her asthma and shortness of breath.
The Court opinion stated that term "handicapped" in LAD is not restricted to "severe" or "immutable" disabilities and has been interpreted as significantly broader then the analogous provision of the Americans with Disabilities Act (ADA). The Plaintiff ‘s testimony, medical history, and her medical expert's opinion fully support the finding that she was physically handicapped within the meaning of LAD. She suffered from disease or pathology as a result of her obesity, resulting in limited mobility as well as other infirmities.
The NJ Supreme court found that there had been an incorrect jury charge which did not correctly state the applicable law, which resulted in reversible error, deserving of a new trial. A jury charge must correctly state the applicable law. An incorrect jury charge constitutes reversible error only if the jury could have come to a different result had it been correctly instructed. In this case, the reasonable accommodation charge was prejudicial to the Plaintiff. The jury charge mixed two theories, a pretext for illegal discrimination, and an employer’s duty to provide a reasonable accommodation. These are two completely and purposefully distinct legal theories in disability discrimination cases.
The Court held that this was a pretext for discrimination case, not a failure to provide a reasonable accommodation case, and the law clearly distinguishes between these two theories. The Plaintiff had not pled “reasonable accommodation” in her complaint nor requested any such accommodation from the employer. Additionally, the employer never argued that a reasonable accommodation was impossible. Rather, the employer only argued that it terminated her because her work ethic was poor. If that contention was true, the employer had no duty to reasonably accommodate her.
The Court held that this was a pretext for discrimination case, i.e., an illegal termination, under the New Jersey Law Against Discrimination, not a failure to provide a reasonable accommodation case, and ordered a new trial.
Age and Disability
New Jersey Age Discrimination Lawyer. When an older worker has a disability, it could be a double bias of age discrimination and disability discrimination. See NJ Employment Discrimination Attorney, Older Employee with Disability Terminated, Two-Fold Discrimination of Ageism-Ableism. An employee who is disabled should not be harassed because of the disability and should be given a reasonable accommodation to allow the disabled person to remain employed. See NJ Employment Attorney, Employee Managers Requiring Disability Accommodation Pressured into Resigning.
To read further about reasonable accommodations that are legally required for disabled employees, see NJ Employment Law Attorney, Disabled Employee Denied Request for Reasonable Accommodation under ADA or NJ Law.
What You Can Do
If you are being subjected to unlawful workplace age discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation. I have represented numerous employees who were discriminated against, and I was successful in recovering financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit.
In many instances of discrimination and retaliation, if you resign, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you. I accept cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients. Call now for a free consultation.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.