Obesity Discrimination in the Workplace: Protection through a Perceived Disability Claim under the Rehabilitation Act and the Americans with Disabilities Act
![handle is hein.journals/cwlr31 and id is 49 raw text is: OBESITY DISCRIMINATION IN THE WORKPLACE:
PROTECTION THROUGH A PERCEIVED DISABILITY CLAIM
UNDER THE REHABILITATION ACT AND THE AMERICANS
WITH DISABILITIES ACT
KAREN M. KRAMER7 AND ARLENE B. MAYERSON*
While employment discrimination against fat' people is well documented
by social science,2 the question whether the Rehabilitation Act of 19731 and
the Americans with Disabilities Act (ADA)4 offer protection against this type
of discrimination has rarely been addressed. The 1993 decision Cook v.
Rhode Island, Dept. of Mental Health, Retardation and Hospitals' marked
the first time that a federal appellate court squarely confronted the issue.'
Cook involved a perceived disability claim,7 which derives from the third
prong of the definition of disability under the Rehabilitation Act and the
Americans with Disabilities Act.8 The First Circuit answered the question
* Stanford Law School, J.D. Candidate, 1995 and participant in clinical work at the
Disability Rights, Education, and Defense Fund during 1994. Linda Krieger, Acting Professor
at Stanford Law School and former attorney at the Employment Law Center in San Francisco,
deserves thanks for her valuable comments and insight given to this article.
** Directing Attorney of Disability Rights Education and Defense Fund (DREDF). One of
the nation's leading experts on disability rights laws, Ms. Mayerson has been a key advisor to
both Congress and the disability community on the major disability rights legislation of the past
decade, including the Americans With Disabilities Act. Ms. Mayerson has devoted her career
exclusively to disability rights practice, and she has written numerous disability rights briefs to
the United States Supreme Court, either as counsel or amicus. Ms. Mayerson teaches disability
rights law at Boalt Hall and Stanford Law Schools.
1. The National Association to Aid Fat Americans (NAAFA) promotes the descriptive term
fat. This paper frequently uses the term obese, which is defined in note 9 infra. For better
and for worse, obesity provides a less ambiguous reference, which proves useful in
maintaining clarity for the purposes of legal discussion. One of the most famous advocates for
fat people, Natalie Allon, herself used the term obesity, along with fatness, in her writings.
See, e.g., Natalie Allon, The Stigma of Overweight in Everyday Life, in PSYCHOLOGICAL
ASPECTS OF OBESITY 130 (Benjamin B. Wolman ed., 1982).
2. See infra notes 171-82 & 195-202.
3. 29 U.S.C. § 701 et seq. (1985 & 1994 Supp.).
4. 42 U.S.C. § 12101 et seq. (1994 Supp.).
5. 10 F.3d 17 (1st Cir. 1993).
6. See Brief of the Equal Opportunity Commission As Amicus Curiae at 1, Cook v. Rhode
Island, Dept. of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993) (No. 93-
1093) [hereinafter EEOC br.] (The issue in this case-whether, and under what conditions,
obesity is covered by the Rehabilitation Act-has never, to our knowledge been addressed by
a federal appellate court. Since the definition of 'disability' under the Rehabilitation Act is
identical to that under the ADA, the decision in this case will affect the Commissions' enforce-
ment of both the ADA and.., the Rehabilitation Act.).
7. Cook, 10 F.3d at 22. See also infra text accompanying note 15.
8. See infra notes 17-20 and accompanying text.](ViewImageLocal?handle=hein.journals/cwlr31&div=8&collection=&method=preview&ext=.png&size=3)
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