Firing an employee because they are severely overweight violates the Americans With Disabilities Act Amendment Act of 2009 (“the ADAAA”), according to a decision by a federal district court in Louisiana on December 6, 2011, denying an employer’s motion for summary judgment. The EEOC brought the case on behalf of Lisa Harrison, an employee who weighed 400 lbs when she was hired and weighed 527 lbs when she was fired, allegedly because her employer thought her excessive weight limited her ability to perform her job.

This is one of only a few court cases to tackle this issue since the ADA was amended in 2009, expanding the definition of an impairment that constitutes a disability. Under the new regulations, the definition of impairment does not include weight that is within a “normal range” unless it is the result of a physiological disorder. The EEOC (which investigates employment discrimination claims), states in its compliance manual for employers that although “being overweight, in and of itself, is not generally an impairment, . . . severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” The EEOC has also noted that other recognized disabilities, such as diabetes, hypertension or thyroid disorders, often go hand-in-hand with obesity.

Recently, the EEOC filed another obesity case in federal court in Texas against BAE Systems, Inc., alleging that the company fired employee Ronald Kratz, II, from his job as a material handler because he was morbidly obese. No ruling has been entered yet in that case.

It seems clear, however, that we can expect a growing number of obesity discrimination cases to be filed under the ADAAA. Some cases will involve individuals who clearly fit the definition of severe obesity. Whether the law applies in other cases, where the employee is simply overweight, will hinge on whether or not the employee’s weight is a result of an underlying physiological disorder. And still others will involve “perceived disability” – the law also protects individuals who, although they are not actually disabled, are discriminated against by their employer because their employer regarded them as having a disability. Accordingly, if a supervisor assumes that an overweight person is substantially limited in the ability to perform their job and discriminates against the employee on that basis, your company could be liable under the ADAAA regardless of whether the employee’s weight problem actually was severe enough to qualify as a disability.

More than one-third (33.8%) of Americans are obese, according to a study released by the Center for Disease Control (“CDC”) this year. And the number has been increasing steadily over the past 20 years. See http://www.cdc.gov/obesity/data/trends.html. The CDC measures obesity using height and weight to calculate a person’s body mass index (“BMI”). An adult with a BMI over 25 is considered overweight. If their BMI is 30 or higher they are considered obese. For example, an individual who is 5’9” and weighs 169 lbs. is overweight, according to the CDC. And if they weight 203 lbs. or more, they are obese. See http://www.cdc.gov/obesity/defining.html.

What does this mean for your business? It means roughly one-third of your workforce (and one-third of your job applicants) fall into the definition of obese. Those individuals may or may not be actually considered disabled under the ADAAA. But remember – even if they are not severely obese, they still may be protected under one of two other ADAAA qualifiers: (1) if their excessive weight is a result of a physiological disorder (not something you’ll be inquiring about during a job interview); or (2) if you perceive them to have a weight-based disability.

The bottom line: although weight is not a “protected class” like race, sex, age, national origin and religion under Title VII, it is being increasingly recognized by the courts as a disability under the ADAAA, a law which prohibits discrimination against individuals based on their disability. And the EEOC has made it abundantly clear that it views obesity as the new frontier for enforcement.

The best practice is to make sure all hiring and supervisory personnel in your organization are instructed not to make any employment decisions based on an individual’s weight or any stereotypes about overweight workers. Of course, employees must be able to perform the actual physical requirements of the job, but you should steer clear of making assumptions about an individual’s ability based on obesity. And employee requests for reasonable accommodations based on weight should be taken seriously.