In his first three years as a 7th-grade math teacher in the Lawrence Union Free School District in Nassau County, N.Y., Michael Frank had a perfect attendance record, consistently received excellent performance reviews and was often praised by his supervisors for his well-planned lessons and rapport with students.

But when Frank came up for tenure at the end of the 2002-2003 school year, something changed. Although Frank's supervisor restated her previous belief that he was doing well as a teacher, she was critical of his looks, allegedly saying, “You are so big and sloppy” and expressing concern that due to his obesity, Frank's appearance was “not conducive to learning.”

After the school district denied him tenure in 2003 and terminated him in 2004, Frank decided to fight back. He filed suit May 11, alleging 10 causes of action for unlawful discrimination and retaliation under the Americans with Disabilities Act (ADA), the Rehabilitation Act and the New York State Human Rights Law. Among other relief, he seeks back pay, reinstatement and damages.

“Mr. Frank's uniform record of outstanding performance as a teacher was disregarded,” says Scott Gilly, the partner at Thompson, Wigdor and Gilly who represents Frank. “The assistant superintendent made it her mission to prevent him from receiving a tenured position solely because of his obesity.”

Although no federal law explicitly prohibits discrimination on the basis of weight, claims such as Frank's are becoming more common as overweight Americans seek redress for unfair workplace treatment. And as the population of overweight and obese individuals continues to balloon–it reached 32 percent of American adults in 2005 according to the CDC–plaintiffs' attorneys are becoming more creative in finding legal avenues to seek remedies against employers that discriminate based on weight.

Fighting Misperceptions

Until recently the ADA was rarely a successful avenue for obesity discrimination claims because of a 1991 advisory opinion from the EEOC. That opinion said being overweight or obese does not amount to a covered disability except in cases of morbid obesity that substantially limits a major life activity.

Since then, plaintiffs' attorneys have found several ways for overweight individuals to sue under the ADA. The most common is a “regarded as disabled” case–where an overweight person becomes covered under the ADA because his or her employer presumed the employee was unable to adequately perform job functions due to his or her weight.

Michael Frank is pursuing that theory, and the EEOC has recently recognized and supported several such claims. For instance in EEOC v. Watkins Motor Lines Inc., currently on appeal before the 6th Circuit, an obese truck driver who was injured on the job was not allowed to return to work because the company's doctor thought he could not do the job safely. The EEOC sued on his behalf, writing that although obesity alone is not a disability, “employees are covered under the ADA if the limitations the employer regards the employee as having would, if actually present, substantially limit the employee's ability to perform a class of jobs.”

Therefore, employers can find themselves in court if their decisions about an employee's performance are not based on sound, documented evidence.

“The biggest problem is when employers make unwarranted assumptions that obesity will limit an individual's ability to perform a job,” says Christopher Kuczynski, assistant legal counsel for the ADA policy division at the EEOC in Washington, D.C.

Also on the rise are ADA claims arising from disabling conditions caused by obesity, or of which obesity is a symptom, such as diabetes or mobility impairments. In those cases, an employer who takes action against an overweight employee may be liable under the ADA despite the fact that the employee's weight alone would not place him in a protected class.

“Employers need to be aware that sometimes being overweight is a symptom of an underlying condition that is covered under the ADA,” says Katherine Dedrick, a partner at Levenfeld Pearlstein. “They need to be prepared to consider requests for accommodations for those employees.”

Legislation Landscape

In addition to a rising tide of ADA claims, state and local laws are giving overweight individuals a variety of other avenues to redress workplace wrongs–often creating causes of action that are much easier to prove than federal ADA claims.

Michigan and several California cities have passed statutes that prohibit employment discrimination on the basis of weight. And Washington, D.C., has a law that prohibits discrimination on the basis of an individual's personal appearance broadly.

“State laws give plaintiffs more latitude,” says Frank Alvarez, a partner at Jackson Lewis. “Discrimination based on size or appearance is a lot easier to prove than trying to show that your employer regarded you as disabled due to your weight.”

Adding to the complexity of the state laws that specifically address weight discrimination, 30 states have passed laws that prohibit employers from discriminating against employees based on their lawful, after-work lifestyle choices, such as smoking. Courts also may extend these laws to protect employees that don't have a disabling condition that causes weight gain, but simply have a lifestyle that contributes to obesity.

“State lifestyle discrimination laws protect employees from being fired for their off-duty use of legal consumable products,” Alvarez says. “There are definitely issues under those laws with what people eat and do.”

Insurance Considerations

Finally, as many employers move to a more aggressive model for managing their employee benefits expenses, they may get sued if those decisions have a disproportionate impact on employees who are overweight.

“There will be an uptick in claims as employers start offering incentives for employees to reduce their health risks,” Alvarez says. “Employers need to be very careful that any policy is grounded in a legitimate business interest in reducing overall exposure to increased health care costs and doesn't target overweight people only.”

Furthermore, employers need to be wary of state insurance laws. Georgia, Indiana, Maryland and Virginia, for example, all have laws that require employer benefit plans to include coverage for gastric bypass surgery–a procedure that can help significantly overweight individuals lose weight.

When crafting any benefits or employment policy, the best advice for employers seeking to avoid claims of discrimination against overweight employees is to tread lightly.

“The more we hear about obesity as a huge problem in society, the more attention it will get in the legal realm,” Dedrick says. “There will be more regulations and more lawsuits as local governments look for ways to protect people.”

In his first three years as a 7th-grade math teacher in the Lawrence Union Free School District in Nassau County, N.Y., Michael Frank had a perfect attendance record, consistently received excellent performance reviews and was often praised by his supervisors for his well-planned lessons and rapport with students.

But when Frank came up for tenure at the end of the 2002-2003 school year, something changed. Although Frank's supervisor restated her previous belief that he was doing well as a teacher, she was critical of his looks, allegedly saying, “You are so big and sloppy” and expressing concern that due to his obesity, Frank's appearance was “not conducive to learning.”

After the school district denied him tenure in 2003 and terminated him in 2004, Frank decided to fight back. He filed suit May 11, alleging 10 causes of action for unlawful discrimination and retaliation under the Americans with Disabilities Act (ADA), the Rehabilitation Act and the New York State Human Rights Law. Among other relief, he seeks back pay, reinstatement and damages.

“Mr. Frank's uniform record of outstanding performance as a teacher was disregarded,” says Scott Gilly, the partner at Thompson, Wigdor and Gilly who represents Frank. “The assistant superintendent made it her mission to prevent him from receiving a tenured position solely because of his obesity.”

Although no federal law explicitly prohibits discrimination on the basis of weight, claims such as Frank's are becoming more common as overweight Americans seek redress for unfair workplace treatment. And as the population of overweight and obese individuals continues to balloon–it reached 32 percent of American adults in 2005 according to the CDC–plaintiffs' attorneys are becoming more creative in finding legal avenues to seek remedies against employers that discriminate based on weight.

Fighting Misperceptions

Until recently the ADA was rarely a successful avenue for obesity discrimination claims because of a 1991 advisory opinion from the EEOC. That opinion said being overweight or obese does not amount to a covered disability except in cases of morbid obesity that substantially limits a major life activity.

Since then, plaintiffs' attorneys have found several ways for overweight individuals to sue under the ADA. The most common is a “regarded as disabled” case–where an overweight person becomes covered under the ADA because his or her employer presumed the employee was unable to adequately perform job functions due to his or her weight.

Michael Frank is pursuing that theory, and the EEOC has recently recognized and supported several such claims. For instance in EEOC v. Watkins Motor Lines Inc., currently on appeal before the 6th Circuit, an obese truck driver who was injured on the job was not allowed to return to work because the company's doctor thought he could not do the job safely. The EEOC sued on his behalf, writing that although obesity alone is not a disability, “employees are covered under the ADA if the limitations the employer regards the employee as having would, if actually present, substantially limit the employee's ability to perform a class of jobs.”

Therefore, employers can find themselves in court if their decisions about an employee's performance are not based on sound, documented evidence.

“The biggest problem is when employers make unwarranted assumptions that obesity will limit an individual's ability to perform a job,” says Christopher Kuczynski, assistant legal counsel for the ADA policy division at the EEOC in Washington, D.C.

Also on the rise are ADA claims arising from disabling conditions caused by obesity, or of which obesity is a symptom, such as diabetes or mobility impairments. In those cases, an employer who takes action against an overweight employee may be liable under the ADA despite the fact that the employee's weight alone would not place him in a protected class.

“Employers need to be aware that sometimes being overweight is a symptom of an underlying condition that is covered under the ADA,” says Katherine Dedrick, a partner at Levenfeld Pearlstein. “They need to be prepared to consider requests for accommodations for those employees.”

Legislation Landscape

In addition to a rising tide of ADA claims, state and local laws are giving overweight individuals a variety of other avenues to redress workplace wrongs–often creating causes of action that are much easier to prove than federal ADA claims.

Michigan and several California cities have passed statutes that prohibit employment discrimination on the basis of weight. And Washington, D.C., has a law that prohibits discrimination on the basis of an individual's personal appearance broadly.

“State laws give plaintiffs more latitude,” says Frank Alvarez, a partner at Jackson Lewis. “Discrimination based on size or appearance is a lot easier to prove than trying to show that your employer regarded you as disabled due to your weight.”

Adding to the complexity of the state laws that specifically address weight discrimination, 30 states have passed laws that prohibit employers from discriminating against employees based on their lawful, after-work lifestyle choices, such as smoking. Courts also may extend these laws to protect employees that don't have a disabling condition that causes weight gain, but simply have a lifestyle that contributes to obesity.

“State lifestyle discrimination laws protect employees from being fired for their off-duty use of legal consumable products,” Alvarez says. “There are definitely issues under those laws with what people eat and do.”

Insurance Considerations

Finally, as many employers move to a more aggressive model for managing their employee benefits expenses, they may get sued if those decisions have a disproportionate impact on employees who are overweight.

“There will be an uptick in claims as employers start offering incentives for employees to reduce their health risks,” Alvarez says. “Employers need to be very careful that any policy is grounded in a legitimate business interest in reducing overall exposure to increased health care costs and doesn't target overweight people only.”

Furthermore, employers need to be wary of state insurance laws. Georgia, Indiana, Maryland and Virginia, for example, all have laws that require employer benefit plans to include coverage for gastric bypass surgery–a procedure that can help significantly overweight individuals lose weight.

When crafting any benefits or employment policy, the best advice for employers seeking to avoid claims of discrimination against overweight employees is to tread lightly.

“The more we hear about obesity as a huge problem in society, the more attention it will get in the legal realm,” Dedrick says. “There will be more regulations and more lawsuits as local governments look for ways to protect people.”