Earlier this month, a three-judge panel for the Appellate Division of the Superior Court of New Jersey affirmed a 2018 trial court decision granting summary judgment against a self-described obese former bus driver for defendant Community Bus Lines, Inc. (“Community”), and dismissing the driver’s claim for violation of the New Jersey Law Against Discrimination (“NJ LAD”). In doing so, the appellate court held that “obesity alone is not protected under the NJ LAD as a disability unless it has an underlying medical cause.” Because plaintiff, in part, failed to present any direct or circumstantial evidence that defendants perceived the driver as disabled due to a medical condition that caused him to be overweight, the appellate court found his claim was without merit.
The plaintiff in this matter worked as a bus driver for Community for 10 years during which time he weighed between 500 and 600 pounds. To maintain his status as an active bus driver, he was required to undergo a medical examination every two years and obtain medical certification verifying his fitness to drive. In 2015, a doctor certified by the United States Department of Transportation (“DOT”) conducted plaintiff’s examination and temporarily disqualified him from driving a bus pending further testing. The plaintiff never followed through to complete the required additional testing and was therefore placed “out of service.” Despite his failure to schedule the follow-up testing, plaintiff’s supervisor referred him for a second opinion to another doctor, who confirmed the prior conclusions and found that further testing was needed before a medical certification could be issued. Neither doctor who examined plaintiff determined that he was disabled but only that further testing was required before he could be certified. Plaintiff again did not pursue the required testing and remained on leave.
Trial Court’s Decision and Appeal
Plaintiff ultimately sued Community and other individual defendants. The trial court issued a comprehensive decision rejecting plaintiff’s claim that his obesity constituted a disability under the NJ LAD, or that defendants had subjected him to a hostile work environment based upon his weight. In so doing, the judge concluded that “there is no protected class under the NJ LAD based solely on one’s weight” and that a plaintiff’s obesity will only constitute a disability under the NJ LAD if the plaintiff demonstrates that this condition is “caused by bodily injury, birth defect[,] or illness.” Plaintiff did not establish that his condition was caused by bodily injury, birth defect, or illness. The judge also found that defendants never perceived plaintiff as “disabled.” Instead, according to the trial court’s opinion, the evidence showed that Community presented plaintiff with several awards, that plaintiff drove a regular route, and that Community attempted to assist him in fulfilling his DOT medical requirements by arranging for him to see another doctor for a second opinion after he failed his first examination. The trial judge also found no merit to plaintiff’s assertion that he was subject to a hostile work environment given that plaintiff himself made jokes and comments regarding his weight and size and that any comments made by his co-workers were not severe or pervasive enough to alter any of the conditions of plaintiff’s employment.
On appeal, the Appellate Division affirmed the trial court’s decision, finding that plaintiff failed to make the threshold showing that he had a disease or condition recognized as a disability under the NJ LAD because plaintiff’s “obesity was not a disability caused by a bodily injury, birth defect, or illness.” The panel further found that plaintiff failed to establish that defendants viewed him as anything other than obese (which in and of itself is not a protected class under the NJ LAD) or that defendants otherwise perceived him as being disabled.
This Decision Is Not without Limit
Fortunately for the employer in this case, plaintiff had failed to produce any direct or circumstantial evidence, through expert medical testimony or otherwise, that defendants perceived him to be disabled due to a medical condition that caused him to be overweight. Indeed, plaintiff testified that he had never been diagnosed with any medical condition that caused him to gain weight or been prescribed a medication which caused weight gain. It was only until after plaintiff filed his lawsuit and submitted to an independent medical examination that he was diagnosed with conditions that might have helped demonstrate his claims.
While the decision is clear that obesity alone is not a disability under New Jersey state law, had the plaintiff introduced direct or circumstantial evidence that his obesity had an underlying medical basis, the result likely would have been much different for the employer. As such, employers should be aware that this state law decision is not without its limits and that an employer’s ability to obtain a similar result on summary judgment will be highly dependent on the facts of the case. It is also important for employers to remember that this is a state law decision, and that under the Americans with Disabilities Act, courts have found that morbid obesity qualifies as a disability. Further, while New Jersey often tries to be California’s little sister in terms of employee-friendliness, this decision seems to be a departure from that trend.
Overall, this decision serves as an important reminder that what constitutes a disability—whether under state or federal law—is ever evolving and employers should take caution when making employment decisions concerning obese employees.
The Appellate Division’s decision in Dickson v. Community Bus Lines, Inc., et al., Docket No. A-3857-17T3 can be found here: njcourts.gov/attorneys/assets/opinions/appellate/published/a3857-17.pdf?c=qho.