Private employers are generally free to deny or terminate employment, unless the employer somehow discriminates on the basis of race, national origin, alienage, age, sex, or disability.  The Fair Employment and Housing Act (“FEHA”) prohibits such employment discrimination. In regards to disability, FEHA also prohibits employment discrimination on the basis of medical conditions, mental disabilities, and physical disabilities.  Many courts have held that physical disabilities include severe eyesight problems, back conditions, polio, wrist injuries, high blood pressure and hypertension, hypersensitivity to tobacco smoke, HIV and AIDS, hepatitis, epilepsy or seizure disorder, clinical depression, multiple sclerosis, and heart disease.


Federal laws define protected disability differently than FEHA.  Under the Federal Rehabilitation Act, a person is regarded as having an impairment if (a) he or she has a physical impairment that does not substantially limit a major life activity but that is “perceived by an employer as constituting such a limitation,” or (b) has a physical impairment that substantially limits major life activities “only as the result of the attitudes of others toward such impairment,” or (c) has none of the impairments but is “treated as having such an impairment.”  The Americans with Disabilities Act (ADA) of 1990 extended the protections of the Rehabilitation Act to private employers with fifteen or more employees.  The ADA also applies immediately to all governmental and public entities. “Qualified individuals with disabilities” are protected by Title I of the ADA, which defines “physical disability” by the same definition as that of the Rehabilitation Act.   The Equal Employment Opportunity Commission (EEOC) is a federal law enforcement agency that enforces laws against workplace discrimination.  The EEOC takes the position that whether someone’s obesity is a protected disability turns on 1) the duration of the condition, and 2) its long-term impact.

Obesity has raised much controversy recently on whether or not it is a protected disability. In medical terminology, a body weight 20-40% over the norm for one’s height is classified as mild obesity; a weight 41-100% over the norm is considered moderate obesity; a weight 100% or more over the norm is termed severe or morbid obesity. According to the Center of Disease Control and Prevention, 35.7% of the nation’s population is obese while nearly 70% are overweight.  Most health professionals agree that obesity has multiple causes, including genetic, psychological, and social factors.

In the case of Cook v. State of Rhode Island, the plaintiff had two separate periods of employment as an institutional attendant for the mentally retarded for the Department of Mental Health, Retardation, and Hospitals (MHRH).  Although Ms. Cook had a spotless performance record, MHRH refused to rehire her in part because it claimed her obesity impaired her ability to evacuate patients in an emergency.  She brought suit against MHRH under section 504 of the Rehabilitation Act.   The jury returned a verdict for Ms. Cook based on the Rehabilitation Act since they found that Ms. Cook’s obesity had a long term impact on her major life activities.

While the Cook case was on appeal, the California Supreme Court decided another case that was contrary to the Cook decision.  In the case of Cassista v. Community Foods, Inc., a job applicant was denied employment by a health foods store. Ms. Cassista was 5’4″ and weighed 350 pounds.  She had previously been employed in several restaurants, managed a sandwich shop and worked as an aide in nursing homes. She applied for one of three openings at Community Foods in the City of Santa Cruz.  Ms. Cassista called back a few weeks later and was informed that she was not selected for the job.  Community Foods’ personnel told her “there was some concern about your weight.”

Ms. Cassista filed a complaint with the Department of Fair Employment and Housing alleging discrimination on the basis of her weight.  The DFEH then determined not to file a complaint, so Ms. Cassista filed suit against Community Foods in state court alleging that she was denied employment in violation of the FEHA (Fair Employment & Housing Act) “in that they regarded her as having a physical handicap, i.e., too much weight.”   The trial court instructed the jury that plaintiff must prove that “but for plaintiff’s handicap she would have been hired by defendant.”  The jury returned a unanimous verdict in favor of Community Foods.  The California Court of Appeal reversed and held that Community Foods considered plaintiff’s weight to be a physical handicap as that term is defined under the FEHA, and that the trial court erred in instructing the jury that plaintiff was required to prove that but for her weight, she would have been hired.

The California Supreme Court reversed and held that weight may qualify as a protected “handicap” or “disability” within the meaning of the FEHA only if medical evidence demonstrates that it 1) results from a physiological condition affecting one or more of the basic bodily systems, AND 2) limits a major life activity.  The Court noted that although Plaintiff proved that her obesity limited her major life activities, she failed to prove that her obesity resulted from a physiological condition.  The Court therefore held that, “since plaintiff adduced no evidence of this kind, she failed to establish a prima facie case of employment discrimination.”


With obesity on the rise, employers must take great precaution when an obese employee files suit for discrimination in federal court.

Based on the Cook case, the obese employee only needs to prove that their obesity has a significant long-term impact on a major life activity.  However, if the obese employee files a claims in state court under FEHA, the employee must also show that their obesity was not caused by voluntary action or inaction, but instead was caused by a physiological disorder or handicap.  According to the Cassista case, is not enough to show that an employer’s decision is based on the perception that an applicant is disqualified by his or her weight.  The applicant must be regarded as having or having had a physiological disease or disorder “affecting one or more of the bodily systems.”