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New Jersey Decision Finds Obesity A Handicap

The New Jersey Supreme Court recently held that obesity is a handicap under the New Jersey Law Against Discrimination (NJLAD), but the $50,000 holding for the disabled plaintiff was reversed and the case remanded because of jury instructions prejudicial against the employer. Viscik v. Fowler Equip. Co., N.J. No. 51855, 3/28/02.

Viscik weighs 400 pounds, and was fired after only four days on the job. She claimed it was because of her obesity and associated illness, while Fowler maintained her termination was because of poor work ethic.

NJLAD does not require a physical handicap to be substantially limiting of a major life activity that is severe or immutable under the Federal Americans with Disabilities Act (ADA). Rather, through expert testimony on genetics and her medical history of needing a cane, being unable to move quickly and suffering from asthma, the court found her condition fits within the meaning of NJLAD.

The jury was instructed that Fowler had a duty to reasonably accommodate the handicap, but Viscik neither pleaded that her employer failed to grant accommodations, nor did the employer argue that Viscik could not perform the job tasks adequately. The jury charge was prejudicial to the employer because it confused two theories – firing on pretext and granting reasonable accommodations to those with a disability.

The New Jersey law grants more protection than the ADA, as the Federal courts have not yet categorized obesity as a disability. This extension of protected status to include obesity is evidence of state legislatures, courts and juries becoming more sympathetic to peoples’ sensitivities. Employers must remain cautious and stay informed of this trend.

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