In a press release issued on June 18, 2013, the American Medical Association (“AMA”) declared obesity as a “disease.” The decision was met with sharp controversy, as it automatically classified millions of overweight Americans as diseased. Critics of the classification believe that obesity is not a disease and that there is no way to determine one’s health based on a number on the scale. The AMA hopes the new label will lead to better coverage and treatment for those who suffer from obesity.

Obesity affects approximately one in three Americans. And the AMA’s decision may be affecting 100% of employers, as it once again raises the question of what should be considered as a disability under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination against a qualified employee or applicant with a disability, provided that he can perform essential functions of the job with or without reasonable accommodation. A person is considered “disabled” if he:

• Has a physical or mental condition that substantially limits a major life activity (such was walking, talking, learning, seeing); or,

• Has a history of a disability; or,

• Is perceived to have a physical or mental impairment that is not transitory and minor.

The ADA Amendments Act of 2008 (“ADAAA”) specifically provided that “disability” for purposes of the Act “shall be construed in favor of broad coverage of individuals under [the ADA] to the maximum extent permitted by the terms of [the ADA].”

In 2010, the Equal Employment Opportunity Commission (“EEOC”) filed its first-ever lawsuit on an employee’s behalf asserting that “severe” obesity was a protectable disability under the ADA. The case, EEOC v. Resources for Human Development, Inc., provided no clear guidance on what level of obesity is severe enough to warrant ADA-protected disability status. In 2012, The EEOC publicly stated that “the law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity.” (emphasis added). The EEOC defines morbidly obese as weighing twice the normal body weight. This came after the case EEOC v. BAE Systems, Inc.,wherein BAE Systems, a global security and defense company, fired an employee who weighed over 600 lbs. The EEOC claimed the employee was able to perform the essential duties of his job and received good performance reviews and was only terminated because of his size. The case settled, with BAE paying the employee $55,000 in damages.

While it is obvious that morbidly obese employees may require reasonable accommodations, it is harder to know at what point a mildly obese person will require the same. Additionally, under the ADAAA, it does not matter if a person is actually limited by their disability; if an employer perceives impairment (and the impairment is not minor nor transitory), any adverse action on the basis of the impairment can be grounds for a discrimination claim.

The AMA’s new position on obesity illustrates the current cultural shift in viewing obesity as more than just a sign of weak willpower; a “disease” is something beyond an individual’s control. There may be legitimate reasons why an employer is wary to hire or promote an obese person, such as increased insurance premiums, the business’s image, or the heightened possibility for a severely overweight person to have other serious health problems. However, employers must be careful not act on this conscious (or sometimes unconscious) bias. The “obesity as a disease” announcement can only work to bolster an employee’s weight-based discrimination claim. With one in three Americans being obese, the potential for these claims is exponentially high.