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Obesity and the ADA

Ketryn Cornell is an obese woman who was fired from the Berkley Tennis Club (the “Club”) after working there for fifteen years.  In May 2012, when Rigoberto Headley became the Club’s general manager, Cornell was five feet, five inches tall and weighed over 350 pounds.  Headley told Cornell that he wanted to change the Club’s image, and that staff members would be required to wear uniforms.  Cornell mentioned to Headley that finding a uniform to fit her may be an issue because she normally shopped at specialty stores due to her size.  According to Cornell, Headley laughed and said in a mocking tone, “Oh yeah, that’s right.”  Cornell claimed that Headley later asked her “out of the blue” if she was thinking about having weight loss surgery.

Headley asked Cornell for her shirt size, and she responded that she wore a women’s size 5X to 7X.  When Cornell went to pick up the shirt Headley ordered, the largest size available was 2X.  The shirts did not fit, and Cornell was told they did not come in her size.  Headley later reported to the Club’s personnel committee that all staff except Cornell were wearing the new uniform shirts, but Cornell continued to resist the change and had been uncooperative.  In response, Cornell explained to Headley that the shirts were five sizes too small for her, and she would like help being accommodated if she was required to wear the uniform shirt.  Without Headley’s knowledge or assistance, Cornell ordered shirts at her own expense and had them embroidered with the Club logo.

With Headley as general manager, Cornell also claimed that her hours were reduced, less experienced employees were selected to cover for absent managers, she was paid less to work night shifts than a brand new employee (whom Cornell characterized as “a small, very petite and thin woman”),  and her overtures at advancement and taking on additional assignments were flatly rejected.  When the Club’s tennis director told Headley that Cornell was upset about these things, Headley allegedly responded, “Well, just look at her, she’s going to be jealous of anybody and she just isn’t a good fit and I’m going to have to look for someone else.”

Cornell filed a grievance with the Club’s personnel committee.   The Club’s Board met to discuss the grievance on May 21, 2013, in the Club’s ballroom.  Headley and Cornell had prepared the ballroom.  Shortly before the meeting began, Headley noticed some additional cleaning was needed.  He reached into the ballroom’s bar for cleaning supplies, and he found a hidden tape recorder that apparently had been set to record the Board meeting.  Headley placed the tape recorder in his work bag.

Headley’s discovery was discussed at the Board meeting.  One Board member offered to stay behind after the meeting to hide on the ballroom’s stage and see if anyone came to retrieve the recorder.  After the meeting Cornell was observed returning to the ballroom by herself.  She reached around the back of the bar without looking inside.  Then she left the ballroom.  When confronted, Cornell admitted she looked inside the bar, but she claimed she was looking for cleaning supplies and did not find what she needed.  The Club decided to terminate Cornell for attempting to surreptitiously record the Board meeting.

Cornell brought eight claims against the Club, including that she was terminated because of her disability, failure to accommodate a disability, and harassment based on disability. The claims were brought under the California Fair Employment and Housing Act (FEHA), but the applicable legal principles are virtually identical under the Americans with Disability Act (ADA).

Cornell asserted that her severe obesity is an actual physical disability. Federal courts are split on whether obesity by itself qualifies as a disability under the ADA or whether someone must show a physiological basis for the condition, and the U.S. Supreme Court declined to resolve this split last year.  Under the FEHA, however, Cornell was required to show that her obesity results from an underlying physiological condition.  Ultimately, Cornell was entitled to a trial on this issue because the Club did not present its own evidence that her weight was not caused by a physiological condition, and it could not establish that Cornell did not possess and could not reasonably obtain evidence of a physiological cause for her weight issues.

The court also found that Cornell presented sufficient evidence to create a triable issue of whether the Club’s reason for terminating her employment was pretext for disability discrimination.  Here, the parties agreed the issue was not whether Cornell actually planted the recorder in the bar, but whether the Club honestly believed that she did so.  Nonetheless, the court concluded there was a triable issue because it was known that Cornell had legitimate reasons for looking into the bar, because her job included cleaning, and cleaning supplies were kept in the bar.  Therefore, the court determined, a factfinder could conclude the Club did not actually believe Cornell planted the recorded in the bar.

The court concluded that the Club did not have a duty to accommodate Cornell’s obesity.  The Club conceded it was aware of Cornell’s obesity, but it was not aware there was an underlying physiological cause.

The court found that Cornell also was entitled to a jury trial  on her harassment claim.  There were four specific comments that Cornell claimed were harassment.  First, Headley laughingly and mockingly commented, “Oh yeah, that’s right,” when Cornell said she typically orders shirts from specialty stores.  Second, Headley asked Cornell if she had thought about weight-loss surgery.  Third, Cornell heard Headley tell kitchen staff not to give her extra food because “she doesn’t need it.”  Fourth, Headley once told Cornell that she did not “need to eat that.”

These comments by themselves were not sufficiently severe or pervasive to support a harassment claim based on disability, but the court said they must be viewed in light of the other alleged conduct, which included Headley ordering shirts that were significantly too small for Cornell and claiming that she was violating policy by refusing to wear appropriate shirts, paying her less than another less experienced employee, and denying her extra hours and internal job openings.  Although the court deemed it a close call, it held a jury would decide whether the harassment was sufficiently severe or pervasive based on Headley’s actions when combined with his weight-based comments.

Cornell v. Berkley Tennis Club, Cal. Ct. App., 1st Dist., No. A147516 (12/21/17)

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