Let’s revisit whether morbid obesity is a disability (and why, sometimes, it may not matter).

In today’s blog post, we’re doubling up on the employment law lessons. It’s a two for Tuesday Thursday!

What inspired this selfless act from the publisher of a free employment law blog?

I read this recent federal court decision about an employee who alleged that his employer discriminated against him based on his disability (morbid obesity) when it terminated his employment within a year.

But, Eric, I thought the consensus was that morbid obesity isn’t a disability under the Americans with Disabilities Act.

That brings us to point number 1…

Don’t forget about state and local employment laws.

The defendant claimed that the plaintiff’s obesity does not qualify as a protected disability under Connecticut state law because the plaintiff had not identified an underlying condition that caused it. It also argued that the plaintiff’s obesity does not qualify as a disability because he has not pointed to any physical symptoms related to obesity that impacted his work consistently.

But therein lies the rub.

Unlike the ADA, some state laws, like the Connecticut Fair Employment Practices Act (“CFEPA”), do not require the complainant to prove that she is substantially limited in a major life activity.

In this case, the plaintiff presented evidence that he was morbidly obese for twenty years and suffered from sleep apnea, hypertension, gastroesophageal reflux disease, and irritable bowel syndrome. Plus, the plaintiff took leave from work to have bariatric surgery. These facts were enough to demonstrate that his morbid obesity qualifies as a “chronic physical handicap, infirmity or impairment” under state law.

The plaintiff wins, right?

Not so fast. The defendant prevailed on the disability discrimination claims because of something that employment lawyers and HR constantly preach but often falls on deaf ears. Indeed, it’s my second point.

Managers should document performance issues.

The defendant emphasized to the court that the plaintiff’s performance issues began soon after his hire and continued through his bariatric surgery up to his termination of employment. In other words, the plaintiff’s feedback didn’t turn negative after he got weight loss surgery. His performance was generally bad.

And the company had the receipts (i.e., emails and a performance review) to back it up.

But, lamented the plaintiff, the post-surgery feedback was more serious. For example, after the surgery, the defendant reassigned one of his duties and terminated him. That’s nefarious!

Not really. The court noted that “these actions were merely steps in a series of gradual adverse job actions [that] began well before the plaintiff had ever engaged in any protected activity.” (cleaned up)

That’s a polite way of saying, “Bruh. You weren’t very good at your job. What did you expect to happen if you didn’t improve?”

Consistent, documented, negative feedback severed the causal link between the plaintiff’s disability-related request for leave and his termination.