In September, one of my Memphis partners, Jeff Wientraub, wrote a good analysis of legal issues posed by obese workers in HR Professionals Magazine. While most employers state that an employees weight does not influence their employment decisions, I am not sure that statement is accurate,… and there are legitimate concerns about the employee’s ability to safely perform the essential functions of the job … but is this concern legally defensible?
Read “How to Weigh Obesity In Employment Decisions.”
Read too, my Atlanta partner, Myra Creighton’s August article about concerns raised by a claim and subsequent decision involving obesity.
Don’t get me wrong. I’m not painting individuals suffering from obesity as villains. But it is a fact that everyday more Americans join the ranks of the obese, and we are kidding ourselves if we think that this issue will not increasingly come up. See also my recent post on the need for serious Wellness efforts.
See also, the EEOC’s Press Release on an obesity-related settlement last Spring….
NEW ORLEANS – Resources for Human Development, Inc. (RHD), … The court-approved settlement resolves the charge of Lisa Harrison, who worked as a prevention / intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007. In its suit, the EEOC charged that RHD violated the Americans With Disabilities Act (ADA) when it fired Harrison because of her disability, severe obesity, even though she was able to perform the essential functions of her job. Before the EEOC filed suit, Harrison died.
During the litigation, the court denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA. EEOC v. Resources for Human Development, Inc., — F. Supp. 2d —-, 2011 WL 6091560 (E.D. La. Dec. 2011) (“severe obesity qualifies as a disability under the ADA”). The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder, rejecting RHD’s argument to the contrary.
The EEOC had offered the expert testimony of a renowned obesity researcher that Harrison’s obesity was the result of a physical disorder or disease, and was not caused by lack of character or willpower. But the court reasoned that “neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment.”
I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues.
Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession.
I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors.
I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values.
Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral.
As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC