FEHA Protection for Obese Employees Just Became Easier

by Julie Ann Giammona

In 1993, the California Supreme Court concluded that obesity does not qualify as a disability under FEHA unless it has a physiological cause (Cassista v. Community Foods). A California court of appeal recently eased the evidentiary requirements necessary to establish the possibility of a physiological cause in Cornell v. Berkeley Tennis Club by concluding that the holding of Cassista v. Community Foods should be given a liberal interpretation. Specifically, the court pointed to the EEOC revised regulation that removed the exact language found in the Cassista case which provided that “except in rare circumstances, obesity is not considered a disabling impairment.” Additionally, the court noted that a 2008 Amendment to the ADA encouraged the definition of disability to be construed in favor of broad coverage.

With those two changes in mind, the appellate court reversed the trial court’s ruling on summary judgment which had dismissed Cornell’s obesity disability discrimination claim. In doing so, the court placed the burden on the Club to demonstrate that Cornell could not establish that her obesity had a physiological cause.  Notably, the court rejected the Club’s arguments that: (1) Cornell’s primary care doctor’s testimony proved that Cornell’s obesity was not based on a physiological condition because the doctor diagnosed Cornell on body mass index alone; and, (2) Cornell’s discovery responses listing obesity as a disability, without asserting a physiological cause, established that no physiological cause existed. Instead, the court determined that the Club had the burden of asking more specific questions in discovery relating directly to the cause of Cornell’s obesity; the absence of direct testimony on causation as to Cornell’s obesity was insufficient to allow a dismissal of her claims.

Cornell represents a “caution” sign for employers when making employment decisions regarding obese employees. Although Cassista still requires that obesity must have a physiological cause to be protected as a disability, Cornell clearly establishes that the burden is on employers to disprove the existence of a physiological cause as the root of the employee’s obesity. Such an analysis is fact specific and will vary on a case by case basis. Ferber Law has the legal expertise to provide accurate advice in advance of decision making in an effort to reduce potential litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.