Earlier this year, the American Medical Association announced it would be classifying obesity as a disease, citing an "overabundance of clinical evidence." In approving its Resolution 420, the AMA compared obesity to lung cancer -- suggesting that obesity is a "chosen lifestyle" characterized by overeating or inactivity is like suggesting lung cancer is not a disease because it can be brought about by smoking cigarettes.
While not carrying the weight of law, the AMA resolution about obesity could have consequences for employers, making it easier for overweight employees to claim protected status under the Americans with Disabilities Act.
"People are slowly starting to come forward," said Claudia Center, senior staff attorney with the San Francisco-based Legal Aid Society-Employment Law Center. "The trend is people are starting to see this as a civil rights issue," which advocates have been arguing for decades, she added.
Beth Slagle, attorney at Meyer Unkovic and Scott, Downtown, said under the original 1990 Americans with Disabilities Act, without a body-mass index (BMI) over 40, or an underlying medical condition causing the obesity, it was hard to claim it as a disability. But the 2009 amendments to the act broadened the definition of a disability, prohibiting discrimination against job applicants or employees based on even the perception of a disability.
"When there is discrimination because of the employer's perception that the person can't do the job, you're not allowed to do that," she said. "You can't discriminate against someone based on the color of their skin, and you can't discriminate against them for their size."
The Centers for Disease Control currently defines obesity as a body mass index is over 30. An adult who is 5 foot 9 and weighs more than 203 pounds is considered obese by this standard.
Since the passage of the ADA amendments, the Equal Employment Opportunity Commission has filed suit against several companies for obesity-related discrimination, an area where it used to be much more "wishy-washy," Ms. Center said.
Among the EEOC cases was a 2010 suit filed on behalf of an intervention specialist at a Louisiana chemical treatment facility, fired because the employer viewed her obesity as an "impairment" that prevented her from doing her job; and a 2011 case of a forklift operator, fired after requesting a seat belt extender for the forklift, citing his weight.
In both cases, the employees won.
The Louisiana case was particularly important, Ms. Center said, because it was a definitive statement by the EEOC that discrimination against the obese was not tolerable. "Neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment," the court wrote when it announced a $125,000 settlement for the plaintiff.
Most discrimination in the workplace happens in two situations, Ms. Center said: either an employee develops a disability and an employer refuses to accommodate it, or, a new supervisor enters an existing situation and tries to make changes. "Any time there is a change, that's where the vulnerability happens," she said.
It's difficult enough for an employee to show discrimination based on a disability, but it's even harder to show discrimination when it occurs in the hiring process, said Susan Mizner, disability counsel with the American Civil Liberties Union.
It's especially tough in a difficult labor market. An applicant has to be able to say "I was clearly the most qualified" and that discrimination occurred due to obesity or another perceived disability, Ms. Mizner said, and with so many applicants vying for a single position, it's much more difficult to prove.
The social stigma attached to obesity factors in to many of the cases.
"Size is viewed as a moral matter, people think 'If you had self-control, you would not be overweight,'" Ms. Center said, despite medical evidence to the contrary. That kind of attitude is equivalent to "blaming people for their body type," she said.
Indeed, the unfair negative image of overweight people is persistent, Ms. Slagle noted, citing the 2010 case of a probationary math teacher in New York who weighed 350 pounds. The teacher received good recommendations from his supervisors, and principal, but when he applied for a permanent position, the superintendent denied his application, and remarked the man was "too big and sloppy."
Ms. Center said as obesity discrimination becomes more frequently identified as a civil rights violation, employers will have to respond. "They may be used to the old regime, where most of these kinds of cases were thrown out," she said. "But they're going to have to get up to speed."