In December 2017, the California Court of Appeal published a decision confirming obesity is a protected disability in California if it has a physiological cause.

In Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908 (2017), Plaintiff was a woman diagnosed as severely obese, weighing over 350 pounds, at five feet five inches tall. Plaintiff began working for Defendant the Berkeley Tennis Club in 1997. Over the course of her employment, Plaintiff worked as a lifeguard, pool manager, and night manager. During her employment, Plaintiff received positive reviews, merit bonuses, and raises.

In 2012, Defendant hired a new general manager who implemented a uniform policy. Plaintiff told the manager that finding a uniform to fit her “might be an issue” since she typically shopped for clothes at specialty stores due to her size. In response, the manager mocked Plaintiff as he stated “Oh yeah, that’s right.” The manager asked Plaintiff if she considered undergoing weight-loss surgery, told kitchen staff not to give Plaintiff extra food because “she doesn’t need it” and told Plaintiff she did not “need to eat that.”

When the manager requested Plaintiff’s shirt size, Plaintiff stated she wore a women’s 5X to 7X. Despite Plaintiff repeating her shirt size to the manager “on at least a half dozen occasions,” the largest size available when the shirts arrived was a 2X. Plaintiff felt humiliated and ended up ordering her own shirt from a specialty shop with Defendant’s logo embroidered onto the shirt at her own expense.

Thereafter, the manager refused to provide Plaintiff additional shifts, reduced Plaintiff’s hours, and paid her less than a newly hired employee, whom Plaintiff described as “a small, very petite and thin woman.”

In 2013, Defendant held a board meeting to discuss personnel issues and issues of club management. Plaintiff and the manager set up the ballroom for the board meeting. Before the meeting began, the manager went back to the ballroom to perform some additional cleaning, and discovered a recording device on a shelf in the portable bar area, positioned a few feet away from the table where the board members would be sitting. The manager took the recording device and contacted the board’s president to reveal what he discovered. After the meeting, an employee hid in the ballroom in order to determine who placed the recording device in the room. The employee saw Plaintiff enter the ballroom and go to the shelf where the recording device was previously located. Plaintiff was terminated for attempting to surreptitiously record a board meeting.

Plaintiff sued Defendant under FEHA claiming disability discrimination based on her obesity and failure to accommodate her disability, disability harassment, and retaliation. She also brought claims for wrongful discharge in violation of public policy based on the retaliation, emotional distress, defamation, and Labor Code violations. The trial court granted Defendant’s motion for summary adjudication on all claims, except for Plaintiff’s claims for Labor Code violations, which were voluntarily dismissed. The trial court held Plaintiff had “not presented medical evidence sufficient to create a triable issue of material fact as to whether she is disabled under the FEHA.”

The Court of Appeal reversed the trial court’s rulings on Plaintiff’s discrimination and harassment claims, but affirmed the rulings on the accommodation and retaliation claims.

Discrimination

The Court of Appeal noted that the California Supreme Court in Cassista v. Cmty. Foods, Inc., 5 Cal. 4th 1050, 1052 (1993) held weight may qualify as a protected disability under FEHA if medical evidence establishes that it results from a physiological condition which affects one or more of the basic bodily systems and limits a major life activity. Furthermore, the Court of Appeal explained that developments under the ADA have eased the burden of demonstrating obesity has a physiological cause under the ADA, and by extension the FEHA. For example, the EEOC removed language from its regulations which stated “except in rare circumstances, obesity is not considered a disabling impairment.”

In reversing the lower court’s decision, the Court of Appeal held Defendant failed to meet its burden of demonstrating that Plaintiff could not establish that her obesity qualified as a disability. The Court of Appeal reasoned that Defendant presented no scientific or expert evidence that Plaintiff’s obesity lacked a physiological cause.

Additionally, the Court of Appeal concluded there was a triable issue as to whether Defendant actually believed that Plaintiff planted the recording device in the ballroom since Defendant did not question Plaintiff about the incident or conduct a follow-up investigation.

Failure to Accommodate

The Court of Appeal held Defendant did not have a duty to accommodate Plaintiff’s disability because there was insufficient evidence Defendant was on notice that Plaintiff’s obesity had a physiological cause. The Court of Appeal applied the court’s reasoning from Cassista, and explained that since Plaintiff claimed her obesity was an actual disability, in order for a duty to accommodate to be triggered, Plaintiff had the burden of producing evidence that Defendant was aware Plaintiff’s obesity had a physiological cause.

Harassment

The Court of Appeal reversed the harassment claim, holding Plaintiff satisfied her burden of demonstrating a triable issue of material fact as to whether the harassment was sufficiently severe or pervasive. The Court of Appeal explained that while evidence of the four allegedly harassing comments over a pattern of several months is not sufficient to demonstrate a hostile work environment, these comments in the context of Defendant’s other allegedly harassing conduct, such as ordering shirts too small for Plaintiff, paying Plaintiff less than another employee, and denying Plaintiff extra hours and internal job openings was sufficient to reverse summary adjudication.

Retaliation

The Court of Appeal affirmed the trial court’s holding for Plaintiff’s retaliation claim because at the time of events in issue, the FEHA did not prohibit an employer from retaliating against an employee for requesting an accommodation. In 2015, the Legislature amended the language of the FEHA, section 12940 to add subsection (m)(2), which makes it unlawful for an employer to retaliate against a person for requesting an accommodation for a known physical or mental disability.

Takeaways

• The Court of Appeal’s decision serves as a reminder to employers that obesity is a protected disability if the plaintiff can show a physiological cause for his or her condition.
• Employers should review their written policies on discrimination, harassment, bullying, retaliation and reasonable accommodations, and ensure an effective complaint procedure is in place.
• Employers are advised to provide sensitivity training and training on preventing abusive conduct to employees, as well as provide additional training to managers on how to implement the written policies and respond to employee complaints.
• If an employee requests an accommodation, or the need for an accommodation is obvious, employers should promptly initiate the interactive process.
• Prior to taking an adverse employment action against an employee for misconduct, employers should always conduct a reasonable investigation into such misconduct.
• Although weight is not currently a protected category under FEHA, some cities like San Francisco and Santa Cruz have enacted ordinances prohibiting discrimination on the basis of weight.