Adam Childers was a 6-foot, 340-pound cook in a Schererville, Ind., pizza restaurant when he was accidentally hit in the back by a freezer door in March 2007. Medication and physical therapy failed to alleviate the pain he suffered in his back and legs. In fact, the pain worsened, extending to his neck. Spinal decompression treatments also proved ineffective. The pain nearly immobilized him, and by September his weight had soared to 380 pounds.
Childers wanted back surgery to alleviate the pain, but his doctor said the surgery was "doomed to failure unless he loses some weight." In November 2007, the doctor, noting that Childers had been unable to lose weight on his own, referred him for lap band surgery "so he will lose some substantial weight and potentially improve his back symptoms and possibly even avoid surgery." Childers amended his workers comp claim to include the lap band procedure.
In August 2009, the Indiana Court of Appeals, ruling in PS2 LLC, D/B/A Boston's Gourmet Pizza v. Childers, upheld a workers compensation board finding that the pizza chain must pay for Childers' weight reduction surgery. The court agreed that Childers' weight "combines with the accident at work to create a single injury for which [Childers] is entitled treatment." That same month, the Oregon Supreme Court reached a similar decision in SAIF Corp. v. Sprague, in which the court granted an employee workers comp coverage for gastric bypass surgery on the grounds that the surgery was necessary to treat a decades-old on-the-job knee injury.
The cases could signal a new trend in workers comp claims. According to the Centers for Disease Control and Prevention (CDC), more than one-third of U.S. adults are obese, meaning they have a body mass index of 30 or higher (for a 5-foot-9-inch adult, that would mean a weight of more than 202 pounds). The level of obesity among adults doubled between 1980 and 2004, the CDC says, and at a high cost to employers. Obesity costs U.S. companies $45 billion a year in increased medical coverage and absenteeism, according to a 2008 Conference Board report.
"For people who do manual labor, work-related injuries are common," says Sara Begley, a partner at Reed Smith. "This opens up a whole new world of treatment, and employers are left footing the bill."
Widespread publicity on the Indiana decision set off alarm bells among employment attorneys, even though the case is not unique--courts in other states have made similar rulings. Their concern is that the case will fuel discrimination against obese employees. Couple the potential for paying tens of thousands of dollars in weight reduction surgery with statistics showing obese workers are more likely than other workers to be injured on the job (see "Injury Prone"), and it's not hard to understand why weight could impact hiring decisions.
"To the extent employers become aware of these cases, it may further stigmatize obese employees," Begley says. "Employers don't want to be saddled with the bill for gastric bypass surgery."
Begley and other employment attorneys sound a warning: Even though obesity is not a protected category under federal law like age, race and sex, Michigan law specifically prohibits discrimination based on weight, as do a few municipalities including San Francisco. Washington, D.C., outlaws discrimination based on personal appearance. Of more widespread concern is the Americans with Disabilities Amendments Act (ADAA), which took effect in January 2009, with EEOC regulations still pending final approval. That act may expose all employers to increased liability if they discriminate against obese workers.
"Before the amendments, morbid obesity was not considered a disability [under the ADA]," says Mary Lou Hill, a shareholder in Ogletree Deakins. "After the amendments, it is pretty clear that morbid obesity will be considered a disability under the 'regarded as' [disabled] clause."
In previous case law, federal courts generally held that people claiming discrimination based on their weight are protected by the ADA only if they can show a physiological disorder that causes them to be overweight, or if they are regarded as having such a physiological disorder. In a 2006 6th Circuit case, the EEOC filed suit on behalf of a 405-pound truck driver who was terminated after an accident because a doctor concluded he could not safely perform his job, although he met the standards for truck drivers. The EEOC contended that the employee's morbid obesity was erroneously regarded as affecting the employee's ability to do the job. In ruling for the company in Equal Employment Opportunity Commission v. Watkins Motor Lines, the appeals court held that morbid obesity is an ADA-covered impairment only when there is evidence of a physiological cause.
The new ADA amendments and the EEOC's proposed regulations implementing them do not specifically address obesity. But employment attorneys think they will make it easier to bring such claims and survive summary judgment, in part by specifying bodily functions, such as the endocrine, digestive and lymphatic systems, in major life activities.
"The ADAA lowers the bar on what 'substantially limits [a major life activity'] means and makes it easier for people across the board to establish they have covered disabilities," says Teresa Jakubowski, a partner at Barnes & Thornburg. "And under the 'regarded as' prong, you no longer have to show you are regarded as having a substantially limiting condition."
She also notes that an employment decision based on a symptom of an underlying disability could be an ADA violation, even if the employer was not aware of the underlying condition. So someone who rejects an applicant based on weight could be liable if the person, unbeknownst to the employer, has an underlying condition such as diabetes.
"That makes it all the more precarious for employers to make decisions based on weight," Jakubowski says.
To protect themselves from lawsuits, Hill recommends that employers document any job-related requirements that could merit a weight limit, including safety factors, and review existing job descriptions to ensure that weight restrictions are requirements of the job.
She warns that it is important not to make assumptions about what jobs an employee can and cannot do based on his or her size. Negative comments about weight from supervisors can lead to "regarded as" claims, so she also advises a review of policies and complaint procedures, as well as training for supervisors on ADA and state and local laws.
In the hiring process, an employer can require a medical exam after a conditional offer of employment is made. But if the offer is rescinded for health reasons, the employer must be able to prove the health condition prevents the applicant from doing the job.
"Employers are always wary of hiring someone who looks like he might have health problems," Hill says. "But fears or concerns are not enough. There has to be a legitimate reason that he can't perform the essential functions of the job."