Tag Archives: ada lawyer

Is Obesity Covered by the ADA

Church & State

                Can you be denied a job based on your weight? Do you have to provide accommodations for overweight employees? The answer to the question of can I be denied a job because of my weight, just like the question of do I have to accommodate an overweight employee, depends on what jurisdiction you are in.

In Maine, New Hampshire, Massachusetts, and Rhode Island, the answer is that obesity is covered under the ADA. An employer in those states must accommodate an overweight employee under the ADA.

However, in Vermont, New York, New Jersey, Connecticut, Michigan, Ohio, Kentucky, Tennessee, North Dakota, South Dakota, Nebraska, Minnesota, Montana, Iowa, Arkansas, Wisconsin, Illinois and Indiana, an employer does not need to accommodate an overweight person based on the ADA, and you can be refused a job for being overweight. 

However, it is not as simple as that, and that is only a list of twenty-two states. Even within those twenty-two states the answer is not as straightforward as it may seem.

               

In 2018 the EEOC released guidelines regarding when obesity is considered a disability, and it found that the person’s weight must be beyond the normal limits, and result from an underlying psychological condition. https://www.natlawreview.com/article/does-obesity-qualify-disability-under-ada-it-depends-who-you-ask-us In the states mentioned above as not being a state where an employer has to accommodate someone for being overweight, under the ADA, the employer still may have to accommodate that person if their weight problem is the result of a psychological condition.

For the twenty-eight states not listed, the question remains whether the ADA covers weight problems. https://www.businessmanagementdaily.com/60437/is-obesity-a-disability-under-ada/

                For the twenty-eight states not listed above, there is a safe route you can take as an employer, if someone’s weight problem is the result of another disability, such as a phycological impairment, assume that you need to accommodate them. However, if the weight problem is not the result of another disability, four, out of five, of the Federal Appellate Courts, who have made decisions, have found that weight, alone, is not a disability under the ADA.

There is no guarantee that Federal Courts in the other twenty-eight states will rule one way, or the other, about whether being overweight qualifies as a disability under the ADA. However, the interpretations that a federal agency gives regarding its own guidelines, hold a lot of weight in the courtroom. On this subject the EEOC has interpreted their own definition of disability to only include being overweight, under the ADA, when it is the result of a psychological condition, not as a disability in and of itself. https://www.hrsource.org/maimis/Members/Articles/2016/04/April_19/Is_Obesity_a_Disability_Under_the_ADA_.aspx

By: Joshua H. Sheskin, Esq., M.A. -Trial Counsel- Lubell & Rosen, LLC. 954-880-9500 JHS@LubellRosen.com

Do Churches need to follow Federal Labor Laws?

Church & State

Can a Church fire me for having a disability, do churches need to follow the Civil Rights Act or Title VII of that act, does a church have to follow the ADA, does a church have to pay minimum wage and overtime (The Fair Labor Standards Act, FLSA), or can a church discriminate based on sex, are just a few of the interesting questions I get as a labor lawyer. Whether a religious institution must comply with Federal Labor Laws is a complex question, which I will try to bring some clarity to.

There is no simple yes, or no, answer as to whether a church must follow Federal Labor Laws. The answer is that it depends on who the employee is. The “it depends” answer, is, basically, the short version of the answer given by the Supreme Court, in a case called Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) (https://www.oyez.org/cases/2011/10-553). The “it depends” answer, is what a coalition of states is currently petitioning the Supreme Court for more clarity on. https://www.law360.com/california/articles/1212213/states-ask-high-court-to-clarify-ministerial-exception-

Churches have the absolute right to control who “shepherds their flock,” which is why in the context of labor laws there is something called the “Ministerial Exemption.” Meaning a church can chose whoever it wants as a religious leader, and fire whoever it wants as a religious leader, without worrying about Federal Labor Laws. A ministerial employee, as they are called, has a job on the basis of the church deciding they are who should lead the members’ spiritual lives, which can change at any time, for any reason, and those are decisions the government will not interfere with.

While obviously a priest, rabbi, imam, preacher, or reverend, is a ministerial employee, because they are clergy, who else working for a religious institution is a ministerial employee is more complex. The conflict arises from situations like the one the Supreme Court considered in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (https://www.supremecourt.gov/opinions/11pdf/10-553.pdf), in which a teacher at a church school attempted to sue under the ADA, because she was fired for having narcolepsy. The Court found that the teacher could not sue the school for firing her, because she had been through formal religious training, and had been chosen as a leader in Christian knowledge suited to pass on that knowledge, by the congregants of the Church. The teacher’s combination of special training in Christianity, and election as a religious leader by her congregation, the Court said, made her a ministerial employee who could not sue under the ADA.

There is no clear bight line that can be drawn as to who qualifies as a ministerial employee and who does not, however, there are some things that guide the determination. The title someone is given is not determinative but is also not irrelevant. Generally, if an employee has formalized religious education, in the institution’s religion, chances are they will be a ministerial employee. Also, anyone who is designated by a religious group, as a spiritual leader, will likely be a ministerial employee, if their work for the religious institution involves some level of giving spiritual guidance, or religious education, to other members of the religious organization. Hence, while office, and janitorial, staff, are, almost always, fully protected by Federal Labor Laws, the choir director, or education director, may not be. A religious institution can discriminate in any way it chooses when picking who its spiritual leaders are, but the institution must abide by Federal Employment Laws for all other employees.

A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for an employer to do when faced with an ADA Accommodation request is to follow the right process and procedure, but the employer needs to have and disseminate a written ADA Policy, in advance, to truly protect themselves. Big, and small, employers are regularly sued for failure to accommodate employees under the ADA. Protect yourself today with a written ADA policy, and training as to how to properly use it, call Joshua Sheskin at the Ft. Lauderdale Headquarters of Lubell Rosen. By: Joshua H. Sheskin, Esq., 954-880-9500JHS@LubellRosen.com.