The trend on overweight, obese and other weight-afflicted individuals claiming some category of employment discrimination (almost always disability-based) continues to increase. There have been mixed results so far with the EEOC, not surprisingly, doing its part to ensure that the overweight individuals of America are considered disabled by one means or another. Thankfully, some of the courts that have been presented with the chance to dig into this issue have cut the fat. Most recently, the Southern District of Alabama determined that the physical characteristic of being overweight, by itself, is not evidence of an impairment under the liberal Americans with Disabilities Amendments Act of 2008 (ADAAA) standards.
In Powell v. Gentiva Health Services, Inc., No. 1-13-cv-00007 (S.D. Ala. Feb. 12, 2014), Ms. Powell sued her former employer under the ADAAA, claiming she was fired for being too fat. At the time of her termination, Ms. Powell was 5’3″ and weighed nearly 230 pounds. She was, however, never diagnosed with morbid obesity. Ms. Powell further denied that her weight issues were because of a health condition or that her weight required she get help walking or performing other physical activity. This testimony undercut any claim of “actual disability” under the ADAAA.
Ms. Powell also failed on her “regarded as” disabled claim for multiple reasons. First, and procedurally, she only raised it as an issue in her Opposition to the employer’s motion for summary judgment, and did not include it as a basis for relief in her complaint. Second, the court found even if Ms. Powell had plead a regarded as claim, the sole comment that Ms. Powell offered as evidence of discrimination was not sufficient to prove her case. Ms. Powell’s area vice president had once remarked, in reference to Ms. Powell’s appearance, that customers did not want to purchase hospice services from an overweight salesperson. The court equated this statement to nothing more than a remark about a salesperson wearing a rebellious hairstyle being a turn off to customers.
Lastly, Ms. Powell was unable to refute her employer’s documented reasons for her termination — that she had numerous performance problems, including chronically low and declining sales. The court did not find the single stray remark by her supervisor as sufficient to establish pretext. There was no evidence that Gentiva perceived Ms. Powell as having an impairment. At worst, the comment suggested her supervisor considered her overweight, but not an individual with a physical impairment. The court aptly noted “plenty of people with an undesirable physical characteristic are not impaired in any sense of the word.” Whether a neon green mohawk or a person carrying extra weight, neither the hairstyle nor the weight is an impairment on its own.