With the U.S. obesity epidemic reaching epic proportions, a recent decision by the New Jersey Appellate Division provides welcome guidance for employers. In Dickson v. Community Bus Lines, Inc., the appeals court held that “obesity alone is not protected under the [New Jersey Law Against Discrimination] as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case.”
Obesity in the Workplace
Approximately 36 percent of American adults are obese. Based on these statistics, one in three employees may suffer from obesity.
Obesity, which is defined as a body-mass index of more than 30, is associated with a number of health risks, including an overall increased risk of death from all causes, hypertension, type 2 diabetes, heart disease, stroke, osteoarthritis, and mental illness. According to the CDC, the estimated annual medical cost of obesity in the United States was $147 billion in 2008 US dollars; and the medical cost for people who have obesity was $1,429 higher than those of normal weight.
Employers have a vested interest managing obesity in the workplace. In addition to healthcare costs, studies have shown that obesity can also result in reduced performance, absenteeism, and decreased productivity.
Employers must also be mindful of weight discrimination. On the federal level, obesity is not a protected characteristic under Title VII of the Civil Rights Act of 1964. However, some cities and states, including the State of Michigan, San Francisco and Washington, D.C., prohibit employment discrimination based on weight.
Alleged Weight Discrimination Under NJLAD
In New Jersey, the Appellate Division recently addressed weight discrimination under the New Jersey Law Against Discrimination (NJLAD). Plaintiff Corey Dickson began working as a bus driver for defendant Community Bus Lines, Inc. (Community) in 2005. In order to maintain his employment as a bus driver, Dickson was required to hold a valid Commercial Driver's License (CDL). License holders must pass a medical examination every two years and obtain a medical certification card verifying that they are fit to drive.
During the ten years he worked for Community as an active driver, Dickson weighed between 500 and 600 pounds. After driving his bus, he sometimes spent time in Community's breakroom talking and joking with the other drivers.
Dickson testified that the other drivers and his supervisors regularly made rude comments to him about his weight. Among other things, they told Dickson that he was "fat," "must weigh a thousand pounds," would likely eat all the food out of the snack machines, was "as big as a bus" or "a 747," and might break chairs if he sat on them. At the same time, however, Dickson conceded that he made jokes with, and teased, other employees at the depot. He referred to himself as "fat boy" in the presence of his coworkers.
In April 2015, the doctor performing the plaintiff's DOT medical examination concluded that additional testing was required before plaintiff could be certified to drive a bus. As a result, Dickson's supervisors advised him that he had been placed "out of service" until he was tested and received a medical certification card. A second doctor reached the same conclusion. In February 2016, Dickson filed his complaint against defendants, alleging that they violated the NJLAD by subjecting him to a hostile work environment.
As part of the suit, the plaintiff submitted to an Independent Medical Examination, during which he was diagnosed with obstructive sleep apnea. Two days later, he suffered a stroke. In April 2018, plaintiff's cardiologist had diagnosed him with peripheral edema, obstructive sleep apnea, morbid obesity, chronic congestive heart failure, myocardial systolic dysfunction, and other conditions.
Judge Ernest M. Caposela rejected plaintiff's claim that his obesity constituted a disability under the LAD, or that defendants had subjected him to a hostile work environment based upon his weight. He dismissed the suit, and Dickson appealed.
Appellate Division’s Decision
The Appellate Division affirmed. It held that “a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight.”
The Appellate Division rejected the argument that obesity constitutes as a disability under the NJLAD. “[A]s the Supreme Court held in Viscik v. Fowler Equipment Co., a plaintiff’s obesity will only constitute a disability under the LAD if the plaintiff demonstrates that his condition is ’caused by bodily injury, birth defect, or illness,’” Judge Michael Haas wrote on behalf of the panel.
The Appellate Division also denied Dickson’s claim for a hostile work environment based upon perceived disability under the LAD. According to the appeals court, the claim must be dismissed “because a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight.”
In support of its conclusion, the court noted that prior to failing his medical exam, Dickson was a valued employee. “Community never fired plaintiff, and kept his job open in the hope that he would be able to pass his licensing examination,” Judge Hass noted.
The Appellate Division also agreed with the trial court that the “cumulative effect of the coworkers’ comments was not sufficiently ‘severe or pervasive’ to create an actionable hostile work environment claim under the LAD.” Judge Haas added: “To prevail on a hostile work environment claim, a plaintiff must show: One, that he or she is in a protected class; two, that he or she was subjected to conduct that would not have occurred but for that protected status; and three, that it was severe or pervasive enough to alter the conditions of employment.” In this case, the court found that the “plaintiff did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD.”
Key Takeaway for New Jersey Employers
The Appellate Division ruling confirms that obese individuals are not necessarily a protected class under the NJLAD. Unless the New Jersey Supreme Court and New Jersey Legislature intervene, that means that aggrieved workers may not rely on the anti-discrimination law to bring weight-based claims, unless the obesity is linked to an underlying medical issue.
Of course, the court’s decision does not mean that employers can never be held liable for weight discrimination. For assistance managing obesity in the workplace or limiting your potential legal liability for discrimination claims, we encourage you to contact a member of the Scarinci Hollenbeck Labor and Employment Group.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Robert E. Levy, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.