Appeals court rules: Discrimination based on employee’s obesity may violate FEHA

Workers whose obesity has physiological causes are protected from discrimination and harassment under the California Fair Employment and Housing Act. Super­­visors who discriminate against those workers may face liability.

Recent case: Ketryn had worked for the Berke­­ley Tennis Club for over 15 years when she was suddenly fired. The reason: She allegedly tried to plant a tape recorder in a room where the club’s board of directors was meeting, supposedly to record the board’s discussions.

Ketryn has been obese since childhood. She weighs more than 350 pounds and measures five feet, five inches tall. According to her doctors, her body mass index is over 50.

She has been diagnosed as severely obese. Her weight interferes with her ability to bathe, walk, stand and use transportation. She cannot walk more than a mile at a time and has significant shortness of breath when engaging in basic activities.

She had worked for the club all through college and remained there after graduation, moving into a full-time position. She received positive reviews and raises throughout this period.

Then a new general manager was hired to run the club. He declared that he wanted to change the image of the club and would now require all employees to wear a uniform. Ketryn told him that might be an issue since she shopped at specialty stores due to her size.

She later claimed he responded by mocking her and asking if she was going to have weight-loss surgery.

Ketryn informed him that she needed a women’s size 5X to 7X shirt. None of the uniform shirts the club supplied were larger than 2X. They did not fit Ketryn, and she said this made her feel humiliated.

The manager criticized her for not abiding by the club’s uniform code. She ended up finding a specialty supplier that made shirts at Ketryn’s own expense.

Eventually, the manager hired a woman whom he claimed better fit the new club image. She was petite—and earned more per hour than Ketryn. After Ketryn complained about the pay difference, she found herself no longer assigned to her preferred shifts.

Then she was told to set up the board meeting area and clean it afterward. The club manager claimed he found a tape recorder inside a cabinet that also contained cleaning supplies. He removed it and told the board he believed someone was trying to record their meeting. Afterwards, he waited to see if someone would retrieve the recorder. He caught Ketryn reaching into the cabinet. She was terminated when she refused to resign.

Ketryn sued, alleging disability harassment and defamation, among other claims.

The trial court dismissed her case. However, an appeals court reinstated some of Ketryn’s claims, including her disability harassment and defamation claim. The court noted she had explained that her condition was physiological in nature and that she had reached into the bar because that’s where the cleaning supplies were kept. This, she said, was evidence that she had been set up.

The court said a jury should decide whether that was the case and whether the comments coupled with the possibly false accusations amounted to disability harassment. (Cornell v. Berke­­ley Tennis Club, Court of Appeal of California, 2017)