OBESE EMPLOYEES ARE PROTECTED UNDER THE FEHA & ADA
OBESITY AS A DISABILITY The Fair Employment and Housing Act (the “FEHA”) protects employees from discrimination and harassment on the basis of a physical disability. The term “physical disability” is broadly defined under the FEHA and includes both physiological conditions as well as an employer’s perception that an employee is disabled. See Govt. Code § 12926(m). Under this standard, an employee’s obesity will be protected so long as an employee can produce medical evidence that her obesity results from a physiological condition, or alternatively that her employer perceived her as disabled because of her obesity. Notably, it wasn’t always so easy to protect obesity as a disability. It wasn’t until 2008 that Congress passed the ADA Amendments Act, which emphasized that the definition of “disability” is to “be construed in favor of broad coverage of individuals under [the ADA], to the maximum extent permitted by [its] terms.” Pub. L. No. 110-325 (Sept. 25, 2008). In response, the Equal Employment Opportunity Commission revised its regulations to remove language providing that “except in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. appen. § 1630.2(j) (1992). In 2017, the California Court of Appeal acknowledged these changes, noting that “these developments suggest an easing of the burdens associated with satisfying the requirement under the ADA, and by extension the FEHA.” Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908, 929 (2017). OBESITY AS A MEDICAL CONDITION The FEHA also protects employees from discrimination and harassment on the basis of a medical condition. The term “medical condition” is narrower than “physical disability” and includes (1) “[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of having cancer,” or (2) “[g]enetic characteristics.” Govt. Code § 12926(d). Under this standard, an employee’s obesity will be protected so long as she can show that it arises from a genetic characteristic (something that will generally require medical evidence to prove). LOOKING FORWARD The Center for Disease Control and Prevention estimates that obesity affects almost 40% of U.S. adults in this country. The foregoing developments are important victories for employees to enjoy workplaces free of discrimination and harassment.