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A Heavy Burden: Court Determines Obesity Alone is Not A Disability Under LADFrancis A. Kenny

Obesity has become a serious health problem in the United States, with more than one-third of the population being obese. It has been labeled a national epidemic by the Centers for Disease Control and Prevention (“CDC”), and it is now considered a chronic disease by many reputable medical organizations, including the American Medical Association (“AMA”), the National Institutes of Health, and the American Association of Clinical Endocrinologists, to name a few. According to the CDC, “[o]besity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer that are some of the leading causes of preventable, premature death.” In the workplace, decreased productivity and increased absenteeism due to obesity is a huge economic burden on our society.

In 2013, the AMA, the largest association of physicians and medical students in the United States, voted to designate obesity as a disease. As a result of the AMA’s decision, many employment-law practitioners, employers, and employees alike started speculating as to whether employees who suffered adverse employment actions or harassment based on their obesity would be legally protected against discrimination in New Jersey.

The New Jersey Law Against Discrimination (“LAD”) has long prohibited employers from discriminating against employees based on the employees’ disabilities or perceived disabilities. In particular, the LAD defines disability to include any “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.” With these principles in mind, the following question is inevitably posed: should obesity, by itself, be considered a disability under the LAD?

Last month, in Dickson v. Community Bus Lines, Inc., the Appellate Division issued an opinion affirming the Law Division’s determination that “obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause.” In Dickson, the plaintiff weighed between 500 and 600 pounds during his tenure as a bus driver for Community Bus Lines, Inc. (“Community”). During his employment with Community, the other drivers and his supervisors regularly made rude comments to him about his weight. However, the plaintiff also made jokes with, and teased, the other employees, and he commonly referred to himself as “fat boy.”

In order to maintain his employment as a bus driver, the Department of Transportation (“DOT”) required that the plaintiff pass a medical examination every two years and obtain a medical certification verifying that he was fit to drive. In 2015, two different doctors determined that additional testing was required before the plaintiff could be certified to drive a bus. As a result, Community notified him that he had been placed “out of service” until he was able to receive a medical certification card.

Shortly thereafter, the plaintiff filed a Complaint in the Law Division alleging that Community discriminated against him based on his weight; failed to provide him with accommodations; retaliated against him; constructively discharged him from his job; and subjected him to hostile work environment under the LAD. The Law Division granted summary judgment to Community on all claims, and the plaintiff appealed, challenging only the Law Division’s dismissal of his hostile work environment claims.

On appeal, the Appellate Division explained that, in order to prove a prima facie hostile work environment claim under the LAD on the basis of disability, the plaintiff was first required to show that he had a disability or a perceived disability under the LAD. The Appellate Division rejected the plaintiff’s contention that obesity alone is a disability under the LAD, explaining (as the Supreme Court held in Viscik v. Fowler Equipment Co., 173 N.J. 1 (2002)), that a plaintiff’s obesity will constitute a disability under the LAD only if the plaintiff demonstrates that his condition is “caused by bodily injury, birth defect, or illness.” Essentially, the plaintiff in Dickson failed to show that his obesity was caused by an underlying medical condition.

Despite this mostly unambiguous ruling, the Appellate Division did not provide any examples of underlying medical conditions that would satisfy the disability requirement under the LAD. Certainly, excessive weight gain can be caused by hypothyroidism, Cushing’s syndrome, depression, and other medical causes. Perhaps these are the underlying medical conditions that would suffice, or perhaps not. Nonetheless, practitioners are left with the burden of deciding whether to proceed with similar cases in the future or, alternatively, how to defend such matters.