Legal Update: Obesity Per Se is Impairment

Just a few months earlier, Michigan was the only state to have appearance as a protected characteristic. Add to this Montana, where the state supreme court ruled that obesity without an underlying physiological condition is covered by the Montana Human Rights Act in BNSF Railway Co. v. Feit, No. OP 11–0463, MT 7/6/2012. The action originated as a disability discrimination complaint in which Feit was upheld by the Montana Department of Labor and Industry. BNSF is incorporated in Delaware and sought review in federal, rather than state, court. The U.S. District Court for Montana asked the state supreme court for a determination of obesity under state law which, relying on EEOC interpretive guidance, found that weight outside normal range constituted an impairment. The ruling did not extend to a determination of whether Feit’s situation constituted a disability. The case is getting attention because of EEOC’s guidance playing a role, which might be taken up by other courts.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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