In the Trenches: An issue of weight

In this edition of In the Trenches, Acme wonders if the Americans With Disabilities Act has mass appeal.

Tiny Thompson was a gregarious, 426-lb security guard at Acme’s West Northville plant. He had always been a big guy. He had been diagnosed with thyroid disease at age 12, he told coworkers, and when he was hired 12 years ago, at age 32, he already weighed in at 300 lb. The last decade had not been kind: More than 100 pounds heavier, he now suffered from hypertension, diabetes, sleep apnea, arthritis in his legs and back, and congestive heart failure.

Over the past few years, Tiny had been having difficulty complying with Acme’s uniform guidelines for security guards. He was expected to wear a company-supplied uniform, and he was expected to keep his shirt tucked into his pants, as well as his sleeves rolled down and buttoned at the wrists. Acme had a hard time finding a uniform in his size, though. It considered having one custom-made before it finally found a size 7X shirt online and had it altered for him. Still, keeping the shirt tucked in and buttoned was a challenge. Ned Nice, the building manager and Tiny’s immediate supervisor, let him wear his shirt outside his pants with his sleeves unbuttoned.

As a result of his diabetes, Tiny had pronounced dark circles under his eyes. On one visit to the plant a few years ago, Bill Bigshot, Acme’s head of security operations, was taken aback upon meeting Tiny at the building entrance, sitting in a guest chair in the lobby. Bill told Matt Mock, the West Northville plant manager, that he was very displeased about the morbidly obese guard’s “personal appearance,” calling him “overweight, disheveled, and dirty,” and questioning whether he “could even get out of that chair.” Matt called Ned in, who stood up for Tiny, insisting he did an outstanding job and was extremely reliable. This “executive stiff” didn’t even know Tiny — and to know him was to love him, Ned thought to himself.

Lately, though, because of his arthritis and limited endurance, Tiny found it difficult to walk or stand for more than a few minutes. As a result, he had trouble walking his normal rounds without getting fatigued and short of breath. Last week, Tiny brought a short doctor’s note stating only that, “Tiny must be able to sit down at work due to his weight condition.” So Ned procured a desk and chair in the building entrance for Tiny so he could sit while stationed there. Still, he thought, Tiny couldn’t just sit there all day; he had to secure the entire building. Ned had misgivings, but he decided to just keep them to himself, especially when Matt started to question the arrangement.

“Tiny could walk his beat just fine, but for whatever reason, the lard-ass doesn’t want to do it,” said Matt. “The guy’s just lazy.”

Ned responded: “Tiny’s weight is making it hard for him to walk. But that doesn’t mean he can’t do the job.”

“Come on,” an incredulous Matt retorted. “The guy’s too fat to even fit into his uniform.”

Ned had a heart-to-heart talk with Tiny. “Look, I got you the desk and chair, Tiny, but you’re going to have to be able to do rounds. That’s your job — to secure this building. Do it at your own pace, but do it. I’ve got your back, but the higher-ups have an issue with this.”

“I’ve got my eyes and ears all over this place. You know that,” Tiny replied. “The guys in shipping and receiving will let me know if something’s up. They see what’s going on. And everyone knows where to find me.”

But that wasn’t going to cut it, Ned told his friend, who was visibly upset.

Two days later, Tiny handed a memo to Ned entitled “Keeping West Northville Safe.” It spoke of his more than 10 years of experience at the plant, noted that he was well-regarded by employees throughout the building, and pointed out several occasions over the course of his career when he was called upon to step up and did so admirably. The document then suggested ways of “enhancing his ability to keep the plant safe.” He proposed the use of a walkie-talkie system so that he could notify employees in designated areas, or be notified by them, of perceived security risks. He also suggested installing a series of cameras around the perimeter of the building and in internal stairways, which he could monitor from an upgraded security kiosk. His memo made no mention of his physical limitations.

A few hours later, Ned reluctantly brought the document into Matt’s office. “That’s it. I’ve had it,” the plant manager said upon reading it. With Ned on his heels, he stormed out toward Tiny’s station, where they came upon their security guard with his head down on his desk, snoring loudly. An hour later, Tiny was summoned to Matt’s office. Matt had Bill on the speaker phone. Bill informed Tiny he was being terminated because he was “incapable of performing the essential job functions of his safety-sensitive position.”

Tiny went to the EEOC and then filed a lawsuit alleging Acme violated the Americans With Disabilities Act (ADA) by failing to accommodate his disability, creating a hostile work environment, and terminating him because of his disability.

Does Tiny have a case? How could Acme have avoided this weighty dilemma?

A labor and employment analyst's response:

Tiny’s lawsuit hinges on a few important issues. Does Tiny have a “disability” under ADA standards? If so, did Acme know he had an ADA-qualifying disability? Was Tiny qualified to perform the essential functions of his security guard job? Did Acme refuse to provide reasonable accommodations so that Tiny could continue to do the job? Finally, was Tiny fired because of his disability?

Obesity is one of the toughest conditions for an employer to deal with, from an ADA perspective. Some courts have ruled that obesity is not a “disability” under the ADA unless its effects (say, high blood pressure or diabetes) or its underlying causes, such as a thyroid disorder or Cushing’s disease, would be deemed a disability. These rules are shifting. At any rate, though, Tiny would very likely qualify as disabled under the ADA. The threshold requirement is that a person has a “physical or mental impairment” that substantially limits a major life activity, such as walking, standing, bending, being mobile, caring for oneself, or working, or substantially impacts major bodily functions, such as those involving the musculoskeletal, cardiovascular, endocrine, and other systems. According to the EEOC, severe obesity, defined as 100% over the normal weight, is such an impairment, regardless of whether there are accompanying health conditions or underlying health problems.

Of course, severely obese individuals often have related conditions that qualify independently as impairments. And Tiny’s numerous health challenges and limitations certainly fit the bill. His sleep apnea can affect the major life activity of breathing. Diabetes is covered as well because it substantially limits the endocrine system. Arguably, Tiny also has an underlying condition that caused his morbid obesity, though neither he nor his physician gave Acme any supporting evidence that he was under treatment for his thyroid condition or was taking thyroid medication. So, while such an assessment is made on a case-by-case basis, it’s likely that Tiny would be covered under the ADA.

However, to be protected under the ADA, an individual with a disability also must be qualified for the job, with or without reasonable accommodations. And the evidence here suggests Tiny was not capable of performing the essential functions of the security guard position. Without seeing the specific job description, we can assume the position would require him to have sufficient mobility to respond quickly to emergencies. Presuming Tiny’s heft would prevent quick reaction time would be unlawfully discriminatory, not to mention foolhardy — witness any NFL defensive lineman in action. However, in this case, Tiny’s limitations seem clear. Ned suggested that Tiny could “take his time” in performing his routine walk-around, but Acme could easily convince a court that such a measured approach to a genuine emergency would be not suffice. Whether wearing a specific security uniform would be an essential job function is a tougher question. On the one hand, employees and visitors need to know who is in charge in the event of a genuine emergency, and the uniform serves that function. Yet a T-shirt with "SECURITY" emblazoned in large print might suffice.

That doesn’t end the matter, though. Next, a court would ask whether Tiny would have been able to do the job if Acme had granted him an accommodation. Of course, Tiny would first have to inform Acme that he suffered from an ADA-qualifying disability before Acme would be expected to engage in the “interactive process” in an effort to accommodate him. His girth alone would not be enough to put Acme on notice, and Tiny’s physician alluded only to a “weight condition.” Also, Tiny would have to request an accommodation, and his “Keeping West Northville Safe” memo never explicitly sought an accommodation for his severe obesity. So Acme would probably avoid liability here for Tiny’s “failure to accommodate” claim.

If Acme had been on notice that Tiny had an ADA-qualifying disability and that he was seeking an accommodation, Acme would have to make a good-faith effort to consider different means of keeping him functioning on the job. And liability notwithstanding, Acme might have been able to avoid the lawsuit and salvage a valued employee if it had considered what accommodations might have been viable here. Ned was willing to do so, yet his higher-ups seemed unwilling to budge, and, had Acme been notified properly of Tiny’s disability and accommodation request, the failure-to-accommodate case might have turned out differently as a result.

Ned already accommodated him by loosening the uniform requirement and providing a desk and chair, and he indicated he would be willing to give Tiny extra time to do his rounds, but those wouldn’t facilitate his ability to make rounds and respond quickly to emergencies. Acme would have to consider Tiny’s proposals, exploring their costs and feasibility. The security camera system would likely be cost-prohibitive and pose an undue hardship for Acme. Moreover, neither option would enable Tiny to promptly reach a location upon discovering a security lapse. Would a “rascal” cart or Segway prove viable to that end? It’s not clear. It’s a “question of fact,” the lawyers would say. But it would warrant consideration during the back-and-forth communication between employee and employer that is a critical part of the interactive process.

Acme could also consider transferring Tiny to a vacant job that would not require the kind of physical mobility that comes with a security position. Tiny would have to meet the qualifications of that opening, and Acme would not have to bump other employees in order to accommodate him.

Tiny’s other claims would have little traction. Although Matt could probably use some sensitivity training, Tiny was never present to hear Matt’s disparaging comments or the remarks made by Bill, for that matter. Even if he had, these isolated remarks were probably not enough upon which to base a hostile work environment claim. As for his discriminatory discharge claim, Acme had a legitimate reason to discharge Tiny: he couldn’t perform the job duties. Again, whether he could have done so with accommodation would be irrelevant since Tiny never put Acme on notice of his disability or requested accommodations. Tiny also could be fairly fired for sleeping on the job, even if that wasn’t a stated reason at the time of his termination. Foregoing a more detailed discussion of sleep apnea and the ADA, it’s enough to say here that staying awake on the job would be a critical function of a security guard position.

Lisa Milam-Perez, J.D. labor and employment analyst
Wolters Kluwer Law and Business, (773) 866-3908