Did you know that at present, Michigan is the only state with a civil rights statute that specifically designates “weight” as a protected class under the law? Under the Elliott-Larsen Civil Rights Act (“ELCRA”), Michigan employers are prohibited from refusing to hire, discharging, or otherwise discriminating against employees based on “religion, race, color, national origin, age, sex, height, weight, or marital status.”
Even in states where weight is not a protected class, taking adverse action against employees perceived to be overweight may still present risk in certain circumstances. Consider, for instance, the plight of a morbidly obese employee who also happens to be diabetic. Because diabetes typically qualifies as a “disability” under the Americans with Disabilities Act (“ADA”), a company employing such an individual may be required (upon request) to engage in the “interactive process” to explore whether a “reasonable accommodation” can be made to assist him or her in performing the essential functions of the position.
Nonetheless, the federal Courts of Appeals for the Second, Sixth, Seventh and Eight Circuits have determined that extreme obesity, standing alone, is not an actionable “impairment” under the ADA. Still, at least one state court – the Washington Supreme Court – has ruled that obesity can qualify an “impairment” under that state’s disability law, even though the statute does not specifically designate “weight” as a protected category. And some municipalities have enacted civil rights ordinances that include protections for overweight and obese individuals.
The takeaway? Michigan employers should remain mindful about non-discrimination obligations and must avoid taking adverse action against employees based on weight or other protected categories under the ELCRA.
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