In most jurisdictions there is no legal protection for employees discriminated against based on obesity except where the employee successfully demonstrates that the obesity constitutes a disability. Michigan is the only state that has made it unlawful to discriminate based on height or weight. But some cities including San Francisco, Santa Cruz and Washington DC passed laws making it illegal to discriminate based on obesity.
Few employees claiming discrimination based on obesity have prevailed in lawsuits regardless of whether they allege that the obesity is a disability. But alleging that the obesity is a disability increases the likelihood of prevailing. And the more morbid the obesity, the more likely the judge or jury will find it to constitute a disability. The ADA regulations at 29 C.F.R. 1630 make clear the hurdle obesity-based claimants must clear to prevail:
Temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints [and] concussions... Similarly, except in rare circumstances, obesity is not considered a disabling impairment.
An important federal case deciding whether obesity constituted an impermissible basis of discrimination was Cook v. Rhode Island Department of Mental Health, Retardation and Hospitals, 10 F.3d 17 (1st Cir. 1993). The court in Cook found that the discrimination was impermissible because the employee's obesity constituted a disability. In Cook the employee was five feet two inches tall and weighed 320 pounds. She demonstrated that her morbid obesity substantially lwith a major life activities.
Being overweight, in and of itself, generally is not an impairment. On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.
Courts have repeatedly noted that the ADA regulations discourage obesity-based claims in all but the most egregious cases, “... the regulations ... point unrelentingly to the conclusion that a claim based on obesity is not likely to succeed under the ADA.” Smaw v. Commonwealth of Virginia, 862 F. Supp. 1469, 1475 (E.D. Va. 1994).