Disability Law

Wellness programs addressing obesity could lead to litigation, lawyers say

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The prospect of disability suits by obese employees is more likely, given recent developments, according to lawyers with expertise in the field.

The Wall Street Journal’s Risk & Compliance Journal (sub. req.) spoke with several lawyers who saw an increased liability risk.

Claudia Center, director of the disability rights program at the Legal Aid Society-Employment Law Center in San Francisco, said it used to be very difficult to bring an obesity discrimination claim, but that may have changed. “I think that the legal landscape on obesity has shifted markedly,” she said.

The article points to the American Medical Association’s recognition of obesity as a disease last summer, and the withdrawal of restrictive guidance by the Equal Employment Opportunity Commission. EEOC guidance previously said obesity at less than the morbid level was generally not a disability, but that has been withdrawn without any guidance to replace it.

Jeff Weintraub of Fisher & Phillips told the Risk & Compliance Journal that the withdrawn guidance should raise a yellow flag for employers.

Weintraub also told the publication that wellness programs dealing with obesity could be a litigation risk. “If a wellness program puts an employer in the position of inquiring about obesity and if the obesity is deemed to be a covered disability then I see the possibility that corporate wellness programs themselves could lead to litigation,” he said.

Ted Kyle, chair of the Obesity Action Coalition, said some employers encourage obese employees to participate in wellness programs, but fail to provide the medical treatment that will help them lose weight.

Center also saw the possibility of disparate-impact litigation over employment practices that target obesity, based on differing obesity rates among racial or ethnic groups.

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