By Ruder Ware Alumni
March 6, 2018
A recent decision from the State of California has held that obesity is considered a protected disability under California law if the condition of obesity is caused by a psychological condition. This gave me pause to wonder whether obesity would be considered a disability under the Wisconsin Fair Employment Act.
It appears there is really no clear ruling in Wisconsin holding that obesity is considered a disability and therefore places an employee in a protected status. Some decisions have focused on circumstances where the employer considers an employee suffering from obesity to be perceived as disabled and unable to work and therefore found to be protected under the state statute. In those cases, a complainant must allege facts sufficient to show the employee is perceived as having a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work. Impairment can be shown by either an actual lessening or deterioration of a normal bodily function or bodily condition or by the absence of such function or condition or by showing the employer believes the employee suffers from a condition that would constitute an actual impairment if in fact it did exist.
Under the perceived to be disabled theory, an overweight condition such as obesity cannot be considered a protected category unless there is an indication of some type of physical condition or psychological disorder that causes the weight of the employee to be totally outside of the employee’s control. If the employee is physically or mentally able to control the weight condition, the Department has held that such obesity resulting from a condition within the control of the employee does not constitute a disability under the WFEA.
There is no Fair Employment Decision that gives a blanket ruling that obesity qualifies as a disability. The theory under the California decision that obesity would qualify as a disability if the employee could show the condition was caused by some physical or psychological disorder would likely be applied in the same manner under the Wisconsin Fair Employment Act. It could be a “perceived disability” case as noted above, or simply a case where the employee suffers from some type of physical or mental disorder that results in the condition of obesity. The employer would have to know the employee suffers from such a condition that results in the condition of obesity and the condition of obesity is determined to impact the ability of the employee to perform work. As you can see, this is a very gray area, but it does suggest that employers need to use caution when determining that an employee is unable to perform their regular duties because of a weight condition.
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