The Appellate Division Clarifies Disability Discrimination Claims Based on Obesity under the Law Against Discrimination

Ryan Savercool

The Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, protects individuals from discrimination based on a person’s actual or perceived disability.  However, obesity is not considered an actionable disability under the LAD unless the plaintiff demonstrates that the condition is “caused by bodily injury, birth defect[,] or illness.”  Viscik v. Fowler, 173 N.J. 1, 17 (2002) (quoting N.J.S.A. 10:5-5(q)).  In Dickson v. Community Bus Lines, Inc., __ N.J. Super. __ (App. Div. Apr. 4, 2019), the Appellate Division clarified the contours of a valid hostile work environment claim premised on a plaintiff’s perceived disability stemming from his or her obesity.  The panel held that “a perceived disability claim based on obesity must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight.”   In the absence of such evidence, an employer is entitled to the summary judgment dismissal of a LAD claim predicated on alleged weight discrimination. 

In Dickson, the plaintiff Corey Dickson, who weighed between 500 and 600 pounds, worked for the defendant Community Bus Lines as a driver for approximately ten years.  Dickson alleged that he was subjected to rude comments about his weight by his co-workers in the break room after work.  However, there was no evidence that Dickson was perceived as disabled during his ten years with the company. 

As a condition of his employment, Dickson was required to possess a valid Commercial Driver’s License (CDL) and a medical certification card that indicated his physical fitness to drive a bus.  From 2005 to 2015, Dickson passed the required medical certification examinations.  Following two independent medical examinations in 2015, however, Dickson was temporarily disqualified from driving pending further testing regarding potential adverse consequences from his weight.  Critically, no determination was made that Dickson was disabled; rather, the doctors determined that additional testing was required pursuant to United States Department of Transportation regulations. 

Dickson subsequently filed suit, claiming that he was subjected to a hostile work environment based upon a perceived disability (obesity).  The trial court granted summary judgment dismissing the case, finding that Dickson’s obesity did not constitute an actual or perceived disability under the LAD and that his co-workers’ conduct was not sufficiently severe or pervasive  to constitute a hostile work environment. 

The Appellate Division affirmed the trial court’s decision, and reiterated several key principles governing hostile work environment claims predicated on weight discrimination.  The panel explained that “the factfinder’s first inquiry is whether the plaintiff has proven that he or she had a disease or condition recognized as a disability under the LAD.”  Dickson, slip op. at 10 (quoting Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 573 (2016)).  In this case, the Appellate Division found that “plaintiff failed to meet this threshold requirement under the LAD because his obesity was not a disability caused by a bodily injury, birth defect, or illness.”  Id. at 11. 

The Appellate Division emphasized that “LAD claims based upon a perceived disability still require ‘a perceived characteristic that, if genuine, would qualify a person for the protections of the LAD.’”  Ibid. (quoting Cowher v. Carson & Roberts, 425 N.J. Super. 285, 296 (App. Div. 2012)).  The panel thus distinguished a religious discrimination claim premised on a mistaken perception that an individual belonged to a protected religious group from Dickson’s claims because “obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case.”  Id. at 12.

The Appellate Division concluded that the plaintiff “did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD,” and that Dickson “did not demonstrate that defendants perceived him as being disabled.” Ibid. The panel noted that there was no evidence that Dickson’s supervisors “took any actions to change the conditions of his employment as the result of any ‘perceived disability,’” and that, notwithstanding his weight,  Dickson was subject to the same work conditions as his co-workers, received several awards, and had passed his medical certification examinations for the ten years preceding his temporary leave.  Moreover, none of the independent doctors who examined plaintiff determined that he was disabled. 

In sum, the Appellate Division reaffirmed that obesity alone is not a protected category under the LAD.  Rather, a plaintiff claiming hostile work environment based on weight discrimination must additionally prove that (1) the obesity has an underlying medical cause; or (2) the plaintiff’s co-workers perceived him or her as disabled, rather than as merely obese.