California law has not (yet) recognized weight as a protected category along with race, gender, gender identity, religion, sexual orientation, medical condition, and many others.
However, more than 25 years ago, the California Supreme Court held that an overweight employee could qualify as a “disabled” under California’s Fair Employment and Housing Act (FEHA) — and, thus, be entitled to employer accommodations and be protected from discrimination and harassment — if that employee could demonstrate by medical evidence that his/her weight:
- Results from a “physiological condition,” and
- Limits a “major life activity.”
See Cassista v. Community Foods, Inc., 5 Cal. 4th 1050 (1993), found here. Recently, a California Court of Appeal confirmed this rule in California and made it easier for overweight employees to sue their employers under FEHA.
The Cornell v. Berkeley Tennis Club Decision
In Cornell v. Berkeley Tennis Club, 2017 WL 6524707 (2017), the plaintiff was a 350 pound female employee who worked at a tennis club as a manager and tennis court washer. The plaintiff, who had been overweight since childhood, worked for the tennis club for almost 20 years.
A new General Manager was hired at the tennis club in 2012, and one of his first projects was to select and purchase new uniforms for the tennis club staff. As part of this process, the General Manager made comments to plaintiff about weight. When he ordered the new uniforms, the General Manager intentionally ordered plaintiff a new uniform that was several sizes too small. Six months later the tennis club’s Board of Directors was meeting to discuss personnel and pay issues. Prior to that meeting, the General Manager found a secretly hidden recording device that was allegedly put there by plaintiff and intended to record the General Manager’s comments. The General Manager fired the plaintiff for allegedly placing the secret recording device, and she sued the tennis club for wrongful termination, disability discrimination, failure to reasonably accommodate her disability, and various other claims.
The Court reiterated the long-standing rule in California that excess weight could be a “disability” under California law if the weight (1) results from a physiological condition, and (2) limits a major life activity. As for the plaintiff’s specific situation, the Court ruled that the tennis club was required to prove that the plaintiff could not show that her weight had a physiological cause. Moreover, the Court specifically cited to the many “developments” in federal disability law — specifically the 2008 amendments to the Americans with Disabilities Act (ADA) — that “suggest an easing of the burdens” on overweight plaintiffs to show that their weight had a physiological cause. The tennis club failed to meet that burden and, thus, plaintiff’s claims for disability discrimination were allowed to proceed.
Finally, because of the comments made by the General Manager, the Court concluded that plaintiff’s claims for harassment were also allowed to proceed. These comments, ruled the Court, carried a “negative weight-based message” that a jury could conclude amounted to illegal workplace harassment.
What This Means for California Employers
As a result of Cornell v. Berkeley Tennis Club, California employers should ensure that their supervisors and managers understand that weight can be a protected category in California. Employers should include weight sensitivity in their harassment and discrimination prevention trainings.
If an overweight employee comes forward with allegations of potentially discriminatory or harassing conduct, the employer should take those allegations seriously and conduct an prompt, thorough, and impartial investigation. If the results of that investigation reveal improper conduct on the part of any supervisor or manager, then that supervisor or manager should be disciplined, up to an including termination.
Finally, employers who receive a request for accommodation from an overweight employee should proceed very carefully. The next step following such a request — the obligation to engage in an “interactive process” with the overweight employee — is an invitation to litigation if not done properly. We always recommend that employers facing this situation consult with experienced, competent employment counsel to help guide them through this interactive process.
You can read the Cornell v. Berkeley Tennis Club decision here.
