New Jersey high court rules that obese employee is handicapped.

A discharged employee established that her obesity is a physical handicap under New Jersey's Law Against Discrimination (LAD), the state's supreme court has ruled. (Viscik v. Fowler Equipment Co., No. A-38-01, 2002 WL 464508 (N.J. Mar. 28, 2002).)

Regina Viscik, 5 feet 9 inches tall and about 400 pounds, was fired on her fourth day as a billing clerk at Fowler Equipment Co. She was told that the company wanted someone who could move around the office better. Viscik alleged that her firing was a violation of the LAD, and a jury verdict in her favor was affirmed by the appellate court.

The New Jersey Supreme Court reversed and remanded the case because of a defective jury instruction, but it unanimously affirmed that Viscik had met the statute's two-pronged test for establishing a handicap. The court ruled that her obesity-based arthritis, heart condition, and obstructive lung disease are "physical infirmities," and that those infirmities were caused by "bodily injury, birth defect, or illness," because the metabolic condition that caused her obesity was genetic.

Viscik's attorney, Christopher Kelly of Warren, New Jersey, said that while he was disappointed that the case was remanded, he was satisfied that "the court applied the facts to the specific language of the statute" to conclude that Viscik is handicapped. Kelly said the case is important because it makes it clear that obesity can be genetic, and it could help dispel preconceived notions about obesity that lead to employment discrimination.

Morgan Downey, executive director of the American Obesity Association, an advocacy organization in Washington, D.C., cited a study that found that overweight people are "frequently stereotyped as emotionally impaired, socially handicapped, and possessing negative personality traits."

Downey said employment discrimination against the obese is common, but that it rarely leads to litigation: "Obese people who are discriminated against are reluctant to press their rights because there is so much stigma and shame associated with obesity. It's seen as a personal failure rather than a disability."

What litigation there is, Downey added, usually involves people who are "morbidly obese"--those with a value of more than 40 on the "body mass index," a medical indicator based on height and weight.

The court noted that the LAD "has been interpreted as significantly broader than the analogous provision of the Americans with Disabilities Act" because the state law's definition of "handicapped" does not require that a condition "result in a substantial limitation on a major life activity."

Downey said he expects to see more litigation on behalf of the obese because awareness of the serious health effects of obesity is increasing. He said state laws may provide better protection for workers because the U.S. Supreme Court has been limiting the scope of the ADA.