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SHRM Newsletter- Is Obesity a Disability Under the ADA?
Posted on Aug. 7, 2013

This is Utah SHRM Legal-mail no. 2013-14 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

- IS OBESITY A DISABILITY UNDER THE ADA?

- NLRB NOW BACK AT FULL STRENGTH

- WAITING FOR MORE INFORMATION ON SAME SEX BENEFITS

- CASINO EMPLOYEES LOSE LAWSUIT OVER GROOMING POLICY

- MORE LEGAL UPDATES AVAILABLE AT UTAH SHRM CROSSROADS CONFERENCE


IS OBESITY A DISABILITY UNDER THE ADA? The American Medical Association (AMA) recently designated obesity as a disease, calling it a “multi-metabolic and hormonal state” that leads to a number of health problems. This determination likely will mean that health insurers will rethink coverage for various obesity-related claims, but it also may have implications for employers. For example, commentators are now asking the question of whether courts and the Equal Employment Opportunity Commission will conclude that obesity is a disability under such anti-discrimination laws as the Americans With Disabilities Act (ADA). At least one commentator predicts the answer to this question will be “yes.” The EEOC is on record stating that morbid obesity is a physical impairment that may be a disability under the ADA. Moreover, Congress amended the ADA is 2008 to broaden the definition of a disability to include more conditions and more persons with impairments. Thus, some believe the courts will soon find more circumstances where the newly-recognized disease of obesity is a basis for coverage under the ADA. HR professionals and supervisors need to keep an eye on this issue. Of course, no one should be fired because he/she is obese, but employers need to be aware that if you are firing an obese person a new claim under the ADA is possible and you should make sure the termination is documented, justifiable and consistent with other business practices. Employers also may face requests for accommodations based on obesity and must be ready to analyze/deal with the same.

NLRB NOW BACK AT FULL STRENGTH: Even a casual reader of these updates over the last year or so will know that the National Labor Relations Board (NLRB) has been very active in trying to regulate even non-union workplaces and that this activity has led to controversy. Congress and the President have even been at odds over the propriety of various appointments to the NLRB and courts have invalidated some appointments, thus calling into question NLRB rulings issued with those appointees voting. Congress recently resolved this issue, somewhat, when the Senate agreed to vote on President Obama’s appointees in the face of a threat to change Senate rules and not allow filibusters on confirmation votes. As a result, several new appointees have been confirmed by the Senate and the NLRB is at its full and undisputed board membership for the first time in about a decade. It remains to be seen how the newly-constituted board will deal with its called-into-question rulings as well as the more controversial decisions issued within the past few years. Stay tuned for developments!

WAITING FOR MORE INFORMATION ON SAME SEX BENEFITS: The world of employment benefits was shaken up a bit by two recent Supreme Court rulings finding the federal Defense of Marriage Act unconstitutional and effectively sustaining the validity of same sex marriages in California. Most HR and legal practitioners in the benefits field are waiting for more guidance from the federal government, the states and the courts and how these rulings will impact the rights of same sex spouses to obtain various employment benefits. I have touched on the issue a little in these updates, and recently came across an interesting article from national SHRM further explaining the “wait and see” approach that has developed. It is an interesting article, and you can read it here: http://www.shrm.org/legalIssues/FederalResources/pages/doma-benefits.aspx

CASINO EMPLOYEES LOSE LAWSUIT OVER GROOMING POLICY: OK, here is an HR law test for you...who are the “Borgata Babes”? The “Borgata Babes” (note- not my terminology) are some 700 women (and almost 50 men) hired to work as cocktail servers and entertainers at the Borgata Casino in Atlantic City. As part of the job, these employees signed a grooming and personal appearance policy, which required them to appear physically fit, have a “clean and healthy” smile, maintain the same physical appearance and appear comfortable in uniforms, which included miniskirts, bustiers, bolero jackets and high heels. I do not know what the women had to wear (just kidding, of course). The policy included a prohibition on a certain level of weight gain and the “Babes” were weighed regularly. Several women, but no men, were disciplined for weight gain. Twenty two female employees eventually sued, claiming the policy and practices outlined above were illegal sex bias and harassment. A state court judge recently dismissed the case, concluding that the term “Babe” is one that “oozes sexual objectification” and is “undignified,” but nonetheless that the weight and dress standards were reasonable given the casino’s intended business image as “the place to go for a naughty but classy good time in elegant surroundings.” The court also noted that the requirements of the job were disclosed upfront and no one was tricked or duped into accepting the employment. The employees likely will appeal the adverse ruling.

MORE LEGAL UPDATES AVAILABLE AT UTAH SHRM CROSSROADS CONFERENCE:

The Utah Crossroads Conference (September 17 & 18, 2013) is the largest and most comprehensive and relevant professional development program for HR practitioners at the best price available anywhere! Powerful speakers address today’s top industry topics to provide solutions and inspire HR leaders. When you attend the Crossroads Conference, you will improve your knowledge, skills, and abilities as an HR professional. Plan now to attend and experience this incredible educational opportunity to network with your peers, challenge your mind and learn tools, tips and techniques that you can apply immediately in your workplace. This conference has been submitted for 12 hours of recertification credits to the HR Certification Institute. Legal Sessions topics include:

Defensible Workplace InvestigationsThis session will focus on the key elements of this process, including how to determine who investigates, how to investigate, how best to document, and when to involve counsel.

The Dangerous and Expanding World of Discrimination and Harassment - Understanding both traditional and non-traditional protected class categories is fundamental to maintaining an environment free from discriminatory harassment and retaliation. The session will discuss the recent expansion of protected classes and developments that are proving increasingly troublesome for employers and address risk management in light of the EEOC's current priorities and enforcement actions.

Out of Sight, On Your Mind: Legal and Practical Considerations for Managing a Remote Workforce - Telecommuting can result in cost savings for companies and flexibility for employees, but it requires companies to carefully manage their remote workforces. This session will tackle common issues that companies with remote workforces face, such as proper supervision, trade secret protection, OSHA and worker's compensation concerns, wage and hour issues, and off-site leaves and absenteeism. 

Watch your Back (ground)Last year, the Equal Employment Opportunity Commission issued its guidance on the use of arrest and conviction records in making employment decisions. Since then, it has aggressively pursued employers who have ignored that guidance. This session will explain the guidance, including the importance of targeted screens and individualized assessments necessary to avoid disparate impact claims. She will also touch upon other hiring process considerations, including the potential discriminatory impact of educational requirements.

You're Not Unionized but the NLRB Can Still Get You - The NLRB has been focusing its attention on non-unionized workplaces via Section 7 of the NLRA. Steve will discuss the legal authority of the NLRB, NLRA postings and notices for employees, social media policies, handbook policies (including at-will disclaimers, non disparagement, confidentiality, and workplace investigations), media contacts, and access rules. Additionally, the session will also briefly review new rules for organizing campaigns, picketing, and bargaining.

Register. Sponsor. Exhibit. Visit at www.utahcrossroadsconference.org

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

OBrienAV

OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012