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The guys close out the week by talking about businesses dealing with hiring and firing obese employees.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name’s Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And one of my favorite songs of Weird Al Yankovic is his parody of “I’m Bad” which is appropriately named “I’m Fat.” Do you agree? Yes or no?

MATT: I agree that is a parody. I don’t know. That song is pretty good. Yeah, I do remember it. He has a couple of good lines in there.

NASIR: Do you have a more favorite Weird Al Yankovic song? I’m not a big fan of his but, out of the songs that he has, I think that’s one of the best – at least the video is pretty good.

MATT: I mean, “Amish Paradise” is pretty good. It’s a classic.

NASIR: Ah, that’s true, and that’s a little bit later in our generation too.

MATT: “Eat It” – Michael Jackson’s “Beat It.”

NASIR: Oh, yeah, “Eat It” is good. I’ll go with a classic, “I’m Fat.”

MATT: So, why did you bring that up? Is it a disability to be overweight? I guess not even overweight. Obese is the classification we’re really looking at.

NASIR: I think everyone’s kind of settled that, okay, your weight, that’s not a disability. You could typically be discriminated against based upon your weight. But, obese, that kind of has a clinical association to it, right? Because that’s like a category of your BMI which we decided last week is worthless.

MATT: You said that, like, a second after I thought of it and I was going to bring that up, yeah. I think that is technically a way to calculate if someone is overweight. Like, it’s definitely overweight and I think obese is a category too. But you could be an NFL player and be classified as obese according to BMI. That’s why it’s dumb.

NASIR: To be fair, some of those guys are frankly obese. I mean, they are just huge.

MATT: The offensive linemen but not, like, J.J. Watt who’s a Houston guy for you. He’s not obese but I bet he probably qualifies as overweight or obese under that. Anyways, why is this an issue? Because let’s say you terminate someone as an employer and they come back and they say, “Oh, I have a disability under the ADA – obesity,” like, “Oh, well…” It’s that or you need to accommodate their disability at work too is another thing that comes. This all kind of falls under the same umbrella. Obesity isn’t a disability under the ABA and I think – let’s see – the EEOC is now saying it is, right?

NASIR: Yeah, I personally have always said that obesity can be considered a disability but depending on this or that, and this was maybe I think the last time I really looked into this issue is a couple of years ago but I think, more recently now, it’s trending to go the other way. It’s very hard to prove that obesity is a disability and one of the particular cases that I saw was the employee had a difficult time from a medical expert’s perspective to establish that obesity was somehow caused by some physiological disorder and that it didn’t have to do with any habits. And then, in the particular case that I saw, if you were obese when you came into the workplace and then fired right afterwards, then you can’t really say that you were terminated because of obesity or from some disability because you were already obese in the first place.

MATT: Yeah, and I think the difference with this disability or with obesity as a disability versus other items that would fall under disability is you can be born with a disability in terms of… let’s say, you know, you can’t walk. Like, that’s a disability you were born with or if you got into a car accident or something like that. Oftentimes, if you’re overweight or obese, I mean, you can have some sort of genetic issues as well but it kind of just falls on the individual and I think that’s why – this is kind of what you were alluding to – there needs to be some sort of symptom there and I think that’s kind of the key point with all this.

NASIR: And it kind of goes to that thought that, you know, I think there’s some people that say, you know, obesity could be a sign of some other disease and so forth. That’s why, even though the EEOC is kind of leaning that way, I can still easily see a case that has the right facts – that this person has a certain disorder that causes them to be overweight. In this case, the obesity didn’t have any kind of substantial impairment of major life activities which is a part of the definition of a disability under the ADA. And so, obesity at a certain extent, when it gets that far, does have that kind of impact, I’m sure, once you get to a certain weight. So, even though I’m saying, like, okay, EEOC may be leaning back towards obesity not being a disability and, if you look at the news articles everywhere, that’s what people are saying. But I would not bank on that personally because, well, let’s talk about the impact of the ADA on employers. We’re not talking about accommodating customers and so forth. We’re talking about employers. When is it okay to discriminate those that have a disability? Discrimination could come in the form of your hiring practices or if they become temporarily disabled in the accommodation process. Basically, if you have fifteen employees or more – and, in some states like California, a different set of laws apply for disabilities like FEHA and that’s five employees and more – the point being is that once a person has a disability and ADA applies to you, then all of a sudden you have to go through the accommodation process to ensure that they can perform their job duties so long as you’re able to make an accommodation to them that doesn’t cause the employer some undue hardship. Failing to do that causes tremendous liability from the employer.

MATT: You stole my thunder again – with the BMI and now this. I was going to pose that question to you. I’ll just make it an open discussion now of, you know, as an employer, how do you handle issues like this? Obviously, it’s case by case situation. There’s a big difference between sitting behind a desk all day and a job where you have to be on the move – like a FedEx driver.

NASIR: Gosh. I don’t know if you ever listen to Howard Stern. Every once in a while, I do and there was this one guy affiliated with the show and he was very overweight and he was applying for a waiter job at the restaurant near the radio station and it was in New York City, Manhattan, and so I guess it’s a high-end restaurant and they’re friends with the show and so forth. They took his application but they just had this interesting discussion like who’s going to hire this guy that is overweight? He’s not going to be able to get through the tables to be able to efficiently wait or even if he’s a bus boy and so forth. Of course, I’m thinking, “What kind of discriminatory issues do they have there?” and they were talking about some of those issues but, when it comes down to it, I’ve never seen a case just based upon looks that an employee was able to recover based upon any kind of disability perspective. But I still think that could easily happen under the right circumstances. I wouldn’t be surprised but we’ll see.

MATT: Oh, yeah. I mean, it definitely could happen but you’re right. It’s not the straightforward case that you might see with other disability issues. I think it would have to be more towards the desk job that I was describing of someone not hiring them based on that – something that their weight wouldn’t affect their job but they were still not hired because of their weight.

NASIR: By the way, I think we need to make a correction because it looks like, you know, I’m going back into time here, back in 2014, the EEOC is claiming that obesity is a disability under the ADA. But I think there’s been a string of cases that it’s been hard for them to prove that because of the reasons discussed before that even if obesity could be termed as a disability, you still have to show that physiological cause that caused the obesity. You still have to show that there’s an impairment for a life activity and so forth. Or you still have to show that not only is it regarded as a disability but the discriminatory act or adverse action was because of that disability or they didn’t accommodate that disability. But it looks like we do have to make a correction. I’m trying to figure out what the EEOC’s position is but it seems like they’re still leaning towards that it is a disability. Reading more into their basis – which, again, is what I was saying prior – is that, with obesity, there must be some kind of underlying condition. But because they’re saying that, in 2008, the ADA was amended a little bit and basically expanded the threshold for what constitutes obesity, that even without any underlying condition, obesity itself sufficiently impacts life activities when it comes to bending, walking, digestion, whatever, and to qualify itself as a disability. There you go. EEOC is going to take that conservative stand so I would go back to what I was saying that, even if you’ve seen cases that have gone the other way in the employer’s favor, I wouldn’t be surprised when you have employees of that size, you’re still taking a risk.

MATT: I was reading a little bit more on this and they’re saying, “Where do we draw the line?” It could open up this door to all these other different things that people can claim are disability and we’re not going to get into this but one of the things it brings up is – and I only bring this up because it’s in the news this week very heavily and last week – gender identity disorders.

NASIR: Yeah.

MATT: I think that’s probably the next big hot topic that I think is going to come through now that we have a face on that sort of topic. It’s going to become very popular and I think there’s going to be a lot of opinions and we’re going to see – I’m sure there’s already been cases, I haven’t looked into it but I think it’s going to be even more so.

NASIR: Yeah, and I think we may have discussed – or at least touched on – in the past that a lot of states don’t have any protections for sexual orientation and definitely those states don’t have any protections for transgender or transsexual kind of classes of people. When it comes to the ADA, understand that disabilities can be both physical or mental so, if there’s some kind of gender identity issue that’s considered to be some kind of mental impairment, then that could be construed as a disability under the ADA. But whether a major life activity is somehow limited somehow by that, I’m not sure. But the point being is that – you’re right – this is something that we’re going into new territory as to how the ADA may apply to other situations, especially obesity. Obviously, it’s only become more recent because of the obesity problem in the United States.

MATT: Yeah, I don’t know what the numbers are but it’s a lot more than it was even a decade ago. We talked about this last week too. I mean, on the podcast with the wellness programs and this kind of ties into that and it’s all kind of goes into one big topic. It’s just another one of those things that employers need to take into consideration when deciding to not hire someone or fire someone or treat someone a certain way. I know this is all very vague what I’m saying but it’s just another thing for employers to worry about.

NASIR: Yeah. All right, guys. Well, thanks for joining us.

MATT: So abrupt. Keep it sound and keep it smart.

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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