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When weight is disabling

Morbid obesity — regardless of the cause — is increasingly viewed as a disability in court, especially in workplace discrimination lawsuits

By Julie Deardorff, Tribune Newspapers

7:59 PM EDT, April 24, 2013

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Lisa Harrison weighed 527 pounds on the day she was fired from her job at a Louisiana drug addiction treatment center. The 5-foot-2-inch Harrison, who believed her employer considered her "disabled" due to her weight, filed a discrimination charge with the Equal Employment Opportunity Commission.

In a groundbreaking ruling in 2011, the court sided with Harrison, who died as a result of her morbid obesity at age 48 — before the case was resolved. The judge found that severe obesity may qualify as a disability, regardless of the cause.

Harrison's case hardly settled the contentious and complicated debate over whether obesity alone can render someone disabled. Until recently, most courts rejected obesity discrimination claims outright. But over the last two years, disability discrimination cases filed by obese individuals have fared better in court. And as the rate of morbid obesity continues to rise in the U.S., experts predict an increase in the number of weight-related workplace disability claims.

"The common understanding now is that morbid obesity would be covered as a disability if you were discriminated against because you were disabled or regarded as being disabled," said Jennifer Pomeranz, director of legal initiatives at the Yale University Rudd Center for Food Policy & Obesity. "There's no prerequisite that you couldn't have contributed to the disability, as, say an accident victim in a drunk driving case or cancer patients who smoked cigarettes."

Blame or causation, in fact, should not be considered in weight-related discrimination cases, said Tanya Goldman, a Maryland-based EEOC trial attorney who represented Harrison's estate.

Considering a different physical characteristic, such as height, can be useful. Dwarfs, for example, aren't generally challenged on whether their disability is caused by a physiological disorder, Goldman said.

Obesity, which is increasingly recognized as a disease, can be both a cause and a consequence of disability. Research shows that increased body weight is associated with a higher risk of becoming and remaining disabled. Other studies have shown obese individuals suffer more impairment related to work and daily activities than nonobese people. Disabled people, meanwhile, have higher rates of obesity than people who are not disabled.

Still, the distinctions between the different types of obesity are important, legal experts say. Someone who is overweight and needs to lose 30 pounds isn't likely to be considered disabled within the meaning of the Americans with Disabilities Act. "But once you hit that threshold of 'morbidly obese,' the EEOC or a court would be likely to find your obesity was a disability," said Robin Shea, an attorney with Constangy, Brooks and Smith LLP.

A morbidly obese adult is at least 100 pounds over his or her healthy weight or has a body mass index over 40. It's a far more serious condition than obesity (a BMI over 30) and is often associated with a host of serious medical conditions, including hypertension, low back pain, diabetes, arthritis, heart disease, endocrine disorders, sleep apnea and depression.

Morbid obesity is chronic, nearly impossible to treat with diet and exercise alone — bariatric surgery is the only viable option — and it can interfere with regular movement, including walking, bending over to tie a shoe and stepping into a car.

"Obesity by itself would not likely be covered as a disability," said Pomeranz. "But other comorbidities such as diabetes would be covered if they are disabling or regarded as such," she said.

Still, some doctors groups have fought labeling obesity as a disability. During the American Medical Association's 2009 annual meeting, delegates voted to "oppose the effort to make obesity a disability," according to the resolution.

The supporters cited the importance of discussing obesity with patients and worried about the potential for doctors to be sued or reprimanded for discrimination under the Americans with Disabilities Act if a patient takes offense when a physician brings up the often-difficult subject.

The Obesity Action Coalition, concerned by the American Medical Association's stance and fear of litigation, called for more discussion of obesity and disability, "as it's not clearly defined and not simple," said President and CEO Joseph Nadglowski.

"Every individual who is affected by obesity is not disabled, but this does not mean that obesity does not and cannot contribute to disability," he added. "Obesity should be treated like any other disease or medical condition in regard to determining disability."

In the U.S., nearly 36 percent of adults are classified as obese. In 2012, 15.5 million or 6.6 percent of the population was morbidly obese. Though obesity rates in general appear to be flattening, "morbid obesity is still increasing at a very fast rate, which is why we'll see a noticeable kick on the disability side," said Roland Sturm, a senior economist at the RAND Corp. and a professor at the Pardee RAND Graduate School.

The Americans with Disabilities Act, the federal law that prohibits discrimination based on disability, was amended in 2009, making it easier for a morbidly obese individual to qualify as being disabled.

"In general, there are very few 'per se' disabilities," said Goldman. For most disabilities, the courts will still need to individually analyze whether someone has a physical or mental impairment and if so, whether that impairment substantially limits a major life activity, she said.

The courts will also have to deal with many unanswered questions. "Suppose you are obese for nonphysiological reasons, you diet, start exercising and you lose 50 pounds, returning to a normal weight," said Shea. "Does that make you a person with a 'history' of a disability?"

In Harrison's case, the EEOC offered testimony that reached a $125,000 settlement with her employer, the Philadelphia-based nonprofit organization Resources for Human Development Inc. Harrison, who weighed more than 400 pounds when she was hired in 1999, worked overseeing a day care program for the children of mothers staying at the residential treatment center, Family House of Louisiana.

"It was pretty easy to conclude she had a physical impairment that substantially limited her in many major life activities, such as walking," said Goldman.

After Harrison's case, the EEOC settled another case with weapons manufacturer BAE Systems, which agreed to pay $55,000 to Ronald Kratz; the company had fired him because of his morbid obesity although he was still able to perform his job.

And in July 2012, the Montana Supreme Court, citing the Harrison case, also held that obesity alone, without any underlying physiological disorder or condition, constitutes an impairment.

"(Harrison's case) hopefully means that future plaintiffs will not have to hire costly exerts to testify as to the 'cause' of their disability," said Goldman. "That's particularly important because in many cases the cause of a plaintiff's morbid obesity would be impossible to prove."

What about disability benefits?

No medical condition automatically renders a person disabled in the eyes of the Social Security Administration, says Richard P. Console Jr. a personal injury attorney and managing partner of Console & Hollawell P.C. "Your eligibility for Social Security Disability benefits lies in your functional capability, or what you are capable of doing in terms of work in spite of your pain," he said.

Under present law, the only way obesity would warrant disability benefits is through "a contributory illness or disease that is caused by the obesity such as respiratory or heart problems."

jdeardroff@tribune.com