Bloomberg Law
Feb. 6, 2023, 10:30 AM

Workplace Obesity Bias Targeted in Texas Top Court, State Bills

J. Edward Moreno
J. Edward Moreno
Chris Marr
Chris Marr
Staff Correspondent

A case pending before the Texas Supreme Court could make the Lone Star State the latest to guarantee discrimination protections for workers who are obese under state and federal disability law, giving the justices the chance to weigh in on an increasingly relevant workplace issue.

The state’s top court will hear oral arguments Feb. 21 in a case where first-year medical resident Lindsey Niehay is alleging she was illegally fired from Texas Tech University Health Sciences Center because of her obesity, a category she said is covered as a disability under state law.

The state of Michigan and a handful of cities across the US are the only jurisdictions that explicitly protect obese workers from discrimination, although some states are considering legislation to ban weight discrimination at work. In court, plaintiffs in virtually every other jurisdiction end up making similar arguments as Niehay, that their obesity is protected under the Americans with Disabilities Act or its state analogs.

Tigress Osborn, chair of the National Association to Advance Fat Acceptance, applauded Niehay for bringing the case but said that weight discrimination should have its own statute separate from disability. An obese person facing workplace discrimination may not see themselves as disabled, she said.

“Having to use that designation to access civil rights doesn’t make sense,” Osborn said.

Disability Argument

According to the suit, Niehay was fired in 2016 after her supervisors questioned her ability to perform physically challenging procedures following an incident in which she was sweating profusely and had to take breaks while working on a patient at Texas Tech’s Department of Emergency Medicine.

Niehay is arguing that her obesity is a medical condition that should be considered a disability under the Texas Commission on Human Rights Act. The Texas Court of Appeals, Eighth District, agreed, saying in its February 2022 opinion that obesity, even without an underlying medical cause, falls under the definition of a disability in the TCHRA, which is a mental or physical impairment that limits at least one major life activity.

That same argument was successfully made by an electronic technician in Washington state in 2018, securing recognition of obesity as a protected class under state disability discrimination law. That case, Taylor v. Burlington Northern Railroad Holdings, Inc., challenged a body mass index standard BNSF Railways imposes for certain positions.

BNSF filed an amicus brief in Niehay’s case in support of Texas Tech, saying that a ruling upholding her win would threaten the BMI standard it imposes for “safety sensitive” jobs. The railway giant noted that unlike Washington, Texas’ TCHRA isn’t more stringent than the ADA, which federal courts have generally ruled doesn’t cover obesity alone.

Meanwhile, the AARP Foundation and other advocacy organizations filed a joint brief in support of Niehay’s argument that her obesity is a disability. Niehay and those organizations also argue that even if obesity alone isn’t an impairment, it was perceived as one by her employer, which is also protected under the TCHRA and ADA.

EEOC, Courts at Odds

At least three federal appellate courts have found that obesity can only qualify as an “impairment” under the ADA if it’s the result of an underlying medical condition, such as hypertension or a thyroid disorder.

In 2019, the US Court of Appeals for the Seventh Circuit found inRichardson v. Chicago Transit Authority that obesity alone doesn’t constitute a disability under federal law, which lines up with other appellate rulings on the issue. That case involved a driver for the CTA who was fired from his job in 2012 after the authority conducted a “special assessment” and concluded that he couldn’t properly turn a steering wheel or keep his foot from pushing the brake and gas pedal at the same time.

The US Equal Employment Opportunity Commission has pushed courts to adopt a different view, that obesity by itself should be considered a disability. The civil rights agency in 2016 told the Ninth Circuitthat obesity alone is an impairment and a worker shouldn’t be required to prove they have an underlying condition.

The agency says courts have misinterpreted its decades-old guidance on the ADA, which says “height or weight within a normal range” are not impairments unless they are a result of a physiological disorder.

Federal appellate courts have found that guidance to mean that a plaintiff needs to prove the existence of a physiological disorder. But the EEOC argues that morbid or extreme obesity alone is an impairment because it implies the person’s weight is beyond “normal” ranges.

“Their guidance isn’t matching up with what they’re arguing in court,” said Fisher Phillips LLP attorney Kelly McCall.

The EEOC didn’t immediately respond to a request for comment.

About 1 in 3 adults “struggle with obesity,” according to the Centers for Disease Control and Prevention.

The issue of accommodating larger employees has increasingly come up for employers as workplaces seek to adopt more inclusive cultures, McCall said.

Companies should generally exclude size requirements in hiring that aren’t pertinent to the functions of the position and accommodate heavier employees when possible, she said. “It’s always critical to engage in that conversation of a reasonable accommodation,” she said.

Legislative Efforts

Meanwhile, lawmakers in some states are looking to provide clarity on obesity bias through legislation. A handful of pending proposals would expand states’ anti-discrimination laws to specifically cover weight, including in New Jersey, New York, and Vermont.

New York state Sen. Brad Hoylman-Sigal (D) is sponsoring one of those bills (S2440), which would add weight and height to the protected categories under New York’s human rights law.

“The human rights law should be as expansive as possible,” Hoylman-Sigal said. “There is ongoing discrimination based on appearance, especially weight and height, in industries throughout New York, including retail, beauty, fashion, and other industries you might not expect like real estate.”

Bills like New York’s and a similar proposal in New Jersey (A4282 / S2741) would clear up the legal murkiness that workers now face when trying to connect their weight to another medical condition for the sake of a disability discrimination claim, said Jason Stump, an attorney with Phillips & Associates PLLC in New Jersey. His firm represents employees with a focus on harassment and discrimination claims.

“If overweight people are experiencing harassment or discrimination at work, they are forced to try and find some other explanation for their weight in order to bring a case under the current protected categories that exist,” he said. “There shouldn’t have to be another category present.”

In Vermont, a proposed bill (S23) would add weight as a protected category under discrimination law while also adding race-related hairstyles and textures—another area of anti-bias law where states have been expanding protections.

In each case, the states’ proposed bans would contain an exception to let companies make employment decisions based on a person’s weight in situations where it is a “bona fide occupational qualification.”

“In my humble opinion, an employee’s weight has little to no effect on an employee’s ability to perform the vast majority of jobs,” Stump said.

To contact the reporters on this story: J. Edward Moreno in Washington at; Chris Marr in Atlanta at

To contact the editors responsible for this story: Rebekah Mintzer at; Laura D. Francis at