Tag: disability

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. 

Considerations Before Terminating An Employee On Medical Leave

Vimal K. Shah

Among the most frequent calls we management-side employment lawyers receive are from clients asking whether they may lawfully terminate an employee who has been on an extended leave for medical reasons. Usually, the call comes just after the client has received a doctor’s note from the employee advising that he is unable to return to work by the previously-planned return-to-work date, and requires several more weeks off. The client’s frustration is palpable; in an exasperated tone, she often notes that the employee is a marginal performer anyway, and clearly implies that she wants to hear only five words from us — “It is okay to terminate.”

Not so fast. Whether an employer can safely terminate an employee on medical leave depends on the answers to several critical questions.

An obvious, but sometimes overlooked, issue is has the employee exhausted his leave allotment under the federal Family and Medical Leave Act (“FMLA”), and any parallel state or local leave law, and under the employer’s policies?  Under the FMLA, an employee is entitled up to twelve weeks of unpaid leave annually for (among other reasons) his own serious health condition. Some states’ laws and some companies’ policies provide for more leave.  If the employee has not exhausted his leave entitlement under each, the employer generally should not terminate.

Another critical question is, has the employer correctly handled the employee’s leave up to now? At the start of the leave, the FMLA requires that the employer expressly tell the employee that it is designating the employee’s absence as FMLA leave and is counting each day or week of absence against the employee’s twelve-week allotment. Further, where the employee has provided at least an estimated length of his leave, the employer must also tell the employee the amount of leave it will designate as FMLA leave, how much of the leave allotment will remain at the leave’s expected conclusion, and the date by which it expects the employee to return. If the employer has not documented its compliance with each of these notice requirements, the employer probably should not terminate.

Assuming the employee has exhausted each of his leave entitlements and the employer has provided all required notices, the next question is, has the employer asked the employee whether he requires a workplace accommodation? Under the federal Americans With Disabilities Act (“ADA”) and its parallel state disability laws, an employer must engage in a dialog (known as the “interactive process”) with any employee it has reason to know may be disabled and who may need a workplace accommodation. Through this process, the employer must determine whether the employee wants an accommodation, and if so, whether there exists some reasonable accommodation that would enable the employee to perform the essential functions of his job. Where, as in the above scenario, an employee has been absent for his own medical condition for a significant period, the employer should initiate this interactive process. If the employer has not done so, it should probably not terminate.

And even if the employer has engaged in the interactive process, it should only terminate if it has concluded, after having consulted with counsel, that no reasonable accommodation is possible. Note that in the scenario presented here, where the employee’s doctor has advised that the employee requires a few more weeks off work, the client may have to grant the extended leave, because a leave extension beyond the FMLA’s twelve-weeks is often considered a reasonable accommodation.

So if the client can’t terminate the employee now, what can it do? First, it should continue to carefully track and document the employee’s absences, and keep the employee apprised of any amount of leave remaining. Second, it should consider asking the employee for a re-certification of his FMLA leave, which it is permitted to do every thirty days. Third, the client should engage in the interactive process to determine possible accommodations which would allow the employee to return to work. Only if the employee is still unable to return to work after having been given or offered a reasonable accommodation should the client consider terminating the employment. Because the reasonableness of a requested accommodation – including a leave extension — depends on the circumstances, the client should consult with counsel before taking this step.