Despite the prevalence of obesity in this country, surprisingly there is no federal law that prohibits employment discrimination based on a person’s weight and only one state, Michigan, specifically makes weight discrimination illegal. Still, employers in every state should consider taking steps to avoid the potential for a weight discrimination claim, because obese individuals who decide to sue their employer may find other avenues of protection under federal law.

To put things in perspective, the Centers for Disease Control and Prevention (CDC) states that more than one-third (34.9 percent or 78.6 million) of American adults are considered obese, which it defines as having a body mass index (BMI) of 30 or higher using a calculation involving a person’s height and weight.

The Michigan statute, the Elliott-Larsen Civil Rights Act, MCL §37.2101, et. seq., is at the heart of a recent discrimination suit that should act as a cautionary tale for employers everywhere. The suit was filed by Elizabeth DeLorean, a former store manager for the fashion company Coach in the Eastern District of Michigan. In her complaint, DeLorean alleges that she began working for Coach’s retail store in Troy, Michigan, in June 2002 as an assistant store director. In October 2007, she was promoted to the position of store manager for Coach’s Sterling Heights location in Macomb County, Michigan. DeLorean alleges her performance was at all times satisfactory or better and that up until 2010, she was healthy and petite.

DeLorean alleges, however, that in 2010 she began to gain weight, ultimately gaining more than 100 pounds by the time of her termination in June 2013. During this time, she alleges, Coach supervisors told her to join Weight Watchers, undergo bariatric surgery, and watch the television show “The Biggest Loser,” and they lectured her and other employees on diet and exercise. Ultimately, DeLorean was terminated for “poor performance.” In her complaint, DeLorean states that  her supervisor conceded that although her weight was not the official reason, it was a factor in the termination decision. DeLorean is suing for weight discrimination and intentional infliction of emotional distress. She is seeking compensatory and exemplary damages, lost wages, attorneys fees, and reinstatement. Coach, an out-of-state corporation, has yet to respond to the complaint.

Although Michigan is currently alone in its prohibition against weight discrimination, overweight individuals in any state may find protections from discrimination under the Americans with Disabilities Act (ADA). The ADA protects employees and applicants with disabilities from discrimination, and it requires employers to make reasonable accommodations for employees with disabilities. The ADA states that height and weight, within normal parameters, are not disabilities. However, some courts and the Equal Employment Opportunity Commission have found that obesity might qualify as a disability, at least in some circumstances.  If the employee can show that his or her obesity substantially limits a major life activity or major bodily function, obesity may be found to be a disability under the ADA. Also, if the employee can show that the employer incorrectly perceived the employee as having a disability based on the employee’s obesity, that employee may also be protected under the ADA.

The takeaway here for employers, particularly those operating in Michigan, is to be careful in addressing employment issues with overweight employees. Although there is no federal statute that specifically prohibits weight discrimination, individual states may begin to follow Michigan’s lead and the ADA is, in appropriate cases, a source of protection for these individuals. It is always best to consult with counsel because every situation is unique.

For more information on the potential impact on your business, please contact:

• Madeline S. Baio (267.519.6825; mbaio@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Employment and Labor Practice Group