obesity

Robyn Price

We have a temporary employee who is overweight and not able to do his job due to his weight. A supervisor made a comment to this employee telling him he couldn't perform his job due to his weight. This is the only comment ever made regarding his weight. We had made a decision to let the employee go, before the comment was made, given his inability to perform his job. Is this still a good idea? ARe there ADA/hostile work environment implications?

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 09-04-03 AT 09:13AM (CST)[/font][p]Under federal ADA, being overweight is not a disability (unless it is symptomatic of another medical condition that would qualify as a disability) but being morbidly overweight has been held in some court cases to be if the criteria for a disability under ADA is met.

Exactly how did you make a connection to the employee's weight and his apparent inability to perform competently the essential duties of the job? Why would anyone make that connection, unless the employee was arguing that? Is his poor performance documented sufficiently to warrant discharge?
Without knowing exactly what the supervisor said and why and how and how often, etc., I can't say that it merely uttering such a statement would constitute harassment on a medical condition. Generally, a one time statement like that wouldn't do it if a similar type statement were being considered for sexual harassment.

Whether or not you would be charged with discriminating against the employee because of a medical condition, even though it may not be a disability, may be more problematic given that it was the supervisor who made the statement. But if you have discharged other employees who also have performed poorly and you have documented the case here sufficiently, you probably won't.

marc

Does your application ask if the employee can do the job listed with or without reasonable accomodation? Doesn't the ee have to tell you what that accomodation is if it is necessary? I don't think the employer has the duty to investigate the accomodation.

System

>Does your application ask if the employee can do the job listed with
>or without reasonable accomodation? Doesn't the ee have to tell you
>what that accomodation is if it is necessary? I don't think the
>employer has the duty to investigate the accomodation.


Sorry Marc, but your supposition is not right. The employer does absolutely have an obligation to investigate reasonable accomodation by entering into the interractive process of exploring the alleged handicap and the potential available and reasonable accomodations.

marc

Thanks for the clarification. You said it better than I did by mentioning the interactive process and exploring options. To me, the interactive process has significant involvement by the person with the handicap.

We have hired several individuals that have handicaps. Fortunately, they have come to the table prepared with information regarding the accomodations necessary. Our experience has been good with these individuals with respect to communicating needs of both employer and employee.

I am getting from some of these threads that is not always the case.

Margaret Morford

I absolutely agree with all the great advice you got from Hatchetman. I would add this. AS Hatchetman told you, people who are morbidly obese (twice their normal body weight is the medical definition) usually have other health problems that go along with this that are ADA protected, like diabetes or degenerative disc disease. If you decide this is the case or you want to be perfectly safe, treat it like a disability and have the reasonably accomodation conversation. It sounds as though there may be no way to reasonably accomodate this employee in the current job, but have the conversation anyway. Do you have another job you could transfer him to? If you simply explore transfer with him and you have nothing available, that's an attempt at a reasonable accomodation. Document all of these conversations if you decide to go this route.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

System

Not that this has any relevance, but when I worked in the trucking industry our company had almost 3000 drivers and at least 60% of the drivers we hired, male and female, were so damned fat it was a miracle they could manage to hoist themselves up into the cab of a tractor. The ladder-steps and chrome handle-pulls and fenders are in abundance, but it's a wonder some of these people manage it without a forklift. These are the same people driving along beside you on the interstate breathing so hard they can't key the CB mike. Be careful.