Final post on the HR puzzler

[Guest guest]

It's time to end the HR obesity puzzler. This will be my last post on the

subject.

When I wrote the original scenario, I had no preconceived notions about what

the answers were. I tried to construct a realistic scenario and see what

would happen.

What happened was that lots of folks did lots of critical thinking and

research and came up with some really good information.

Thanks to all of you.

Now, here's my take on it.

First, does the plaintiff have a disability under ADA? Answer: It is not

clear whether or not he does.

As has been correctly stated here, ADA does not specifically include obesity

as a covered disability.

Originally, the courts were rather hostile to obesity claims under ADA;

however, more recently EEOC has begun to lean toward finding MORBID OBESITY to

be a

disability in some cases.

A person making a claim under the ADA must show that he has a disability,

that he is otherwise qualified to do the job, and that the [discharge] was

because of his disability.

ADA defines disability as " a physical or mental impairment that substantially

limits one or more of the major life activities of an individual. "

The first major case to address whether obesity is a disability involved not

the ADA but the Rehabilitation Act of 1973. In Cook v. State of Rhode

Island, Department of MHRH, the court found that an employer discriminated

against a

morbidly obese job applicant based on a " perceived " disability.

Cook was 52 inches tall and weighed over 320 pounds when she applied for a

job as an institutional attendant for mentally retarded patients, a job she had

previously done successfully.

During the routine pre-hiring physical, no limitations were found on Cook's

ability to do the job. But MHRH claimed that her obesity compromised her

ability to evacuate patients in emergencies and put her at greater risk of

developing serious ailments, and refused to hire her. Cook won her case. The

case

has implications not only for the Rehabilitation Act but for the ADA. The

Cook case was the turning point in the EEOC's approach to obesity as a

disability.

In a subsequent case, EEOC v. Texas Bus Lines, the plaintiff, a 5'7 " woman

weighing 345 pounds passed all pre-employment tests. But at a subsequent

medical exam, the company doctor decided that plaintiff would be unable to move

swiftly in the event of an accident and refused to issue the required Medical

Examiner's Certificate.

The court decided as a matter of law that Texas Bus Lines impermissibly

discriminated against plaintiff on the basis of a PERCEIVED DISABILITY.

Private employers are generally free to hire whom they please unless they

discriminate on the basis of race, national origin, alienage, age, sex, or

disability. The Cook case and the Texas Bus Lines case bring the specter of

" perceived disability " into play, and the principles can easily be applied to a

termination decision.

Many posters have mentioned preemployment screening programs, job

descriptions, and similar items.

While screening can avoid hiring problem employees, employers must be careful

about the screening process.

It was the preemployment screening process that got the Texas Bus Lines into

trouble.

It should be obvious that employers need to have carefully constructed job

descriptions and that any prescreening procedures follow the job requirements.

Another device that might be considered is a contract of employment that sets

forth in exact detail the job requirements, and states the steps that will be

taken by each party in the event an employee becomes unable to perform the

job requirements.

A contract cannot abrogate the provisions of the Rehabilitation Act or the

ADA, but it can clearly define the steps that each party must take in the event

of conflict. It may even provide for binding arbitration in cases of

unresolved disputes in states that allow it.

How will the scenario turn out? You be the judge.

There are many, many facts that would come to light in a real case that are

not stated in the scenario. Each of you who is interested in HR issues will

think about the varied factual situation that might arise and plan for them.

As Wes has correctly stated, all ADA claims must first be filed with the EEOC

if the claimant wishes to secure the help of the EEOC. In some situations,

however, the plaintiff may file a claim directly without waiting for the EEOC

to act. In that instance, the full burden of costs of the case will fall

upon the plaintiff. If the EEOC determines that a violation of the ADA has

occurred, it can bring a case or, in the alternative, issue an opinion letter

allowing the plaintiff to sue on his own. There are many technical nuances to

each of these routes, and I won't bore the list with them.

The plaintiff's claims based upon denial of a safe workplace, inducement of

depression, and so forth, are tort claims not based upon the ADA, so those

claims, however weak, can be presented without submission to the EEOC.

In your decision making process, consider these points:

1. Can the plaintiff prove that he has a disability under ADA? I suggest

that under the cases, he will have to establish that he is morbidly obese

through medical testimony, and that his morbid obesity renders him unable to

perform the job description without accommodation.

2. Has the employer offered accommodation? Can the employer reasonably

accommodate? Or is there no reasonable accommodation that would allow the

plaintiff to still function as a paramedic as required? Would patient care be

compromised by accommodations?

3. Were the employer's conditions for continued employment reasonable, or

did they violate the ADA?

4. If accommodation cannot be offered in the performance of the job

description, is it reasonable to offer plaintiff a similar position such as QI

analyst or dispatcher, at the same pay level. If no such positions are

available,

is the employer required to create one for this employee?

5. Can the employer show through medical testimony that the plaintiff's

obesity is the result of his own choices, rather than the items he alleges as

work place defects?

6. What are the potential damages if the plaintiff wins? Would the

employer be wise to limit liability by offering a settlement? Could the case

go to

arbitration?

I see the plaintiff's strong points as being (1) he gained weight on the job,

and testimony can probably be produced from an expert showing that the

pattern of work in a SSM system leads to weight gain. If no expert testimony

can

be produced, at least other medics can be found who will testify that they each

gained weight after going to work for a SSM service; (2) the working

conditions imposed by the system are unhealthy and violate community standards;

(3) he

was never told when he was hired that continued employment was contingent

upon maintaining a certain weight, there are no policies and procedures that

require that an employee maintain a certain weight; (4) there is no basis in law

or medicine for the employer's claims that his weight impairs his ability to

perform his job description; (5) that his morbid obesity is a disability under

the ADA.

I see the company's strong points as: (1) plaintiff is unable to perform

his job description because of his weight, as testified to by co-workers; (2)

medical testimony shows that he has no physiological

reasons for his weight gain; (3) he has the opportunity to bring food to work

and eat it in the cab of the ambulance at worst, and to exit the ambulance at

many times and places and eat between calls; (4) that he has the opportunity

to gain exercise by walking around the posting area when awaiting a call, that

he is furnished with a pager and a radio so that he's not required to sit in

the ambulance; (5) the plaintiff cannot prove his allegations concerning

impairment of circulation through medical testimony; (6) the plaintiff was

aware

of the risks associated with being an EMT when he accepted employment; (7) the

plaintiff is not suffering from a disability as defined in the ADA or the

Rehabilitation Act, and is not eligible for protection under these acts; (8)

notwithstanding any other arguments to the contrary, the plaintiff was offered

an

accommodation which, if he had accepted it, would have enabled him to remain

employed as either a QI analyst or dispatcher at the same pay level as before.

And so forth and so on.

Problems like this happen often in EMS services, and they are expensive to

deal with. My intent in presenting this scenario was to give those interested

in HR problems something to chew on. I hope that it has served that purpose.

I cannot tell you what the outcome of the suit would be because the courts

have not settled upon clear rules concerning obesity as either a disability or a

subject for discrimination. The best advice I can offer is for HR folks to

do as much research as possible on these subjects, read all the available and

pertinent cases, and formulate policies and procedures that are both legally

sustainable and fair.

Gene Gandy, JD, LP