Tuesday, July 20, 2010

Is a Law Protecting Weight Discrimination Next or Already Actionable?

An article in Corporate Counsel discusses weight bias in employment. Perhaps the Genetic Information Nondiscrimination Act (GINA) already covers weight discrimination? GINA defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder isn't defined in the statute, but many cases of obesity could certainly be considered a "disorder." It has also been medically established that in many cases, obesity has a genetic component.

The article linked above also discusses the possibility of using obesity as a disability:
Also of note, the new amendments to the ADA, passed as the ADA Amendments Act of 2008 (ADAAA), could cover weight discrimination. The same was technically true under the original ADA, but those who tried to bring such a claim struggled to meet the ADA's definition of disabled, i.e., being a qualified individual with a physical or mental impairment that substantially limits a major life activity.

In passing the ADAAA, however, Congress lowered the height of the wall protecting that definition by at least several feet. Nevertheless, the ADA's new focus on reasonable accommodations still seems an unlikely fit for obesity issues. Further, much like gay and lesbian advocates in 1991, weight discrimination advocates would prefer a law that provides protection against discrimination without having to acknowledge that they are somehow "disabled."

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