In a 2017 case, Ketryn Cornell alleged that her obesity should qualify as a disability under California law. Employers in California should be aware of this decision and its implications.
Background
Cornell was a severely obese woman (she was 5’-5” and over 350 pounds, with a BMI of over 50) who was terminated from her position at the Berkeley Tennis Club. She started working part-time for the tennis club as a lifeguard and pool manager in 1997, while she was taking classes at UC Berkeley. She was employed as a night manager and continued to work at the Club after graduating from college in 2001. After working there for 10 years, she was given more responsibilities as a day manager and tennis court washer. Cornell received favorable performance reviews and received merit bonuses and raises during this time.
The Club brought in a new general manager in 2012 who implemented a uniform policy. This policy mandated that the staff wear uniform shirts; however, the largest size the Club ordered didn’t fit Cornell. She told the general manager she needed a bigger size, and he said he’d get her an appropriate uniform. However, it’s not known if he actually tried to find her a shirt that would accommodate her. Instead, Cornell ordered shirts from a specialty shop at her own expense and had them embroidered with the Club logo.
A few months later, the Club’s Board of Directors met to discuss personnel and pay issues. Before that meeting, the General Manager found a secretly hidden recording device that was allegedly put there by Cornell to record the General Manager’s comments. The General Manager fired her for her alleged actions, and she sued the Club.
The Lawsuit
Cornell asserted violations for various Labor Code violations, including disability discrimination/failure to accommodate under the Fair Employment and Housing Act (FEHA), wrongful discharge in violation of public policy based on disability discrimination, disability harassment under the FEHA, and retaliation under the FEHA.
The Club moved for summary adjudication of the discrimination/failure to accommodate claim and the harassment claim on the basis that Cornell’s obesity wasn’t a physical disability under FEHA. The Club also argued that even if she had a condition protected by the FEHA, she didn’t require an accommodation and wasn’t fired for a discriminatory reason. Moreover, the Club’s actions weren’t severe or pervasive enough to constitute harassment.
In response, Cornell argued that her obesity qualified as an actual physical disability because it is a “physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following according to Government Code § 12926(m)(1):
Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; or
Limits a major life activity.
After finding for the Club, Cornell appealed, asserting that the trial court improperly granted summary adjudication of the FEHA disability discrimination/failure to accommodate and harassment claims. She argued that, contrary to the trial court's ruling, the Club failed to carry its initial burden of showing that she couldn’t demonstrate that her obesity constitutes a “physical disability” under the FEHA.
The Court of Appeals Agrees with Some of the Plaintiff's Arguments
Presiding Judge Jim Humes wrote in his opinion for the Court of Appeals that obesity can qualify as a physical disability under the Fair Employment and Housing Act.
Under the FEHA, it’s unlawful to discriminate against an employee based on “physical disability.” In addition to making it illegal to discriminate based on disability, the FEHA makes it unlawful “to fail to make reasonable accommodation for the known physical … disability of an … employee.” Finally, the FEHA prohibits an employer from harassing an employee because of a physical disability.
Cornell's claim of disability discrimination was subject to the burden-shifting framework found in the 1973 United States Supreme Court case of McDonnell Douglas Corp. v. Green. Under that framework, a plaintiff must first establish a prima facie case of discrimination by showing the following:
She suffered from a disability, or was regarded as suffering from a disability;
She could perform the essential duties of the job with or without reasonable accommodations; and
She was subjected to an adverse employment action because of her disability or perceived disability.
After the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. If the defendant does so, “the burden again shifts to the plaintiff to establish the defendant intentionally discriminated against him or her. The plaintiff may satisfy this burden by proving the legitimate reasons offered by the defendant were false, creating an inference that those reasons served as a pretext for discrimination.
Physiological Cause
Judge Humes and the Court of Appeal said that Cornell was required to demonstrate as an element of her disability-based FEHA claims that her obesity has a physiological cause. The judge explained that numerous federal decisions have held that obesity doesn’t qualify as a disability under the ADA unless it has a physiological cause.
But in moving for summary adjudication of the disability-based claims, the Club presented no scientific or expert evidence that Cornell's obesity lacked a physiological cause. As such, it failed to carry its initial burden of demonstrating that Cornell couldn’t establish that her obesity had a physiological cause, and therefore did not demonstrate that she couldn’t establish that her obesity was an actual disability under the FEHA. As a result, Judge Humes concluded that the Court didn’t need to resolve her claim that the trial court erred by excluding certain expert evidence she proffered to create a triable issue of material fact on whether her obesity has a physiological cause.
Discriminatory Termination/Failure to Accommodate
The Court of Appeals held that summary adjudication of Cornell's discrimination/failure to accommodate claim must be reversed in part. Cornell claimed she was terminated because of her obesity and that the Club failed to provide a reasonable accommodation. The Court concluded that summary adjudication of the claim was improper as to the allegations of discriminatory termination but proper as to the allegations of a failure to accommodate.
Even assuming that the general manager didn’t orchestrate the discovery of the recorder, there was still a basis to conclude that his discriminatory animus toward Cornell influenced the ultimate decision to terminate her, Judge Humes wrote.
As far as the failure to accommodate claim, the judge explained that there’s no longer any requirement that a plaintiff be perceived as having an actual disability under the FEHA to qualify as disabled based on the employer's perceptions. Section 12926 now defines “physical disability” to include “[b]eing regarded or treated by the employer … as having, or having had” not only a condition “that has no present disabling effect but may become [an actual] physical disability” under subdivision (m)(1) but also “any physical condition that makes achievement of a major life activity difficult.” Thus, an employer isn’t required to perceive a plaintiff's obesity as having a physiological cause for the obesity to qualify as a perceived disability under the FEHA. Instead, an employer must be aware that a plaintiff's obesity has a physiological cause to be required to accommodate that condition. But that didn’t Cornell because she claimed she was entitled to a reasonable accommodation because her obesity was an actual disability, not because of how the Club perceived it.
Harassment
Judge Humas also said that summary adjudication of the harassment claim must be reversed. Actionable harassment consists of more than annoying or merely offensive comments in the workplace, and it can’t be occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a general nature. Whether the harassment is sufficiently severe or pervasive to create a hostile work environment must be assessed from the perspective of a reasonable person belonging to the same protected class as the plaintiff. In making this assessment, the Court considers several factors, including:
The frequency of the discriminatory conduct;
Its severity;
Whether it is physically threatening or humiliating, or a mere offensive utterance; and
Whether it unreasonably interferes with an employee's work performance.
The Court of Appeals agreed with Cornell that the general manager's comments “must be viewed in context with [the Club's] other [allegedly] harassing conduct,” including his ordering of shirts that were significantly too small for her and his reporting to the Personnel Committee that she was resisting the uniform policy by not wearing appropriate shirts, as well as paying her less than another employee and denying her extra hours and internal job openings.
Retaliation
The Court held that summary adjudication of the retaliation claim was proper. The Club argued that Cornell's obesity wasn’t an actual disability under the FEHA and that neither her termination nor any other purported adverse action occurred “because of” her obesity. The trial court ruled that she’d failed to demonstrate that she engaged in a protected activity because—under then-existing law—a request for a reasonable accommodation did not constitute protected activity.
The Court’s Decision
The trial court’s summary adjudication of Cornell’s disability discrimination claim under Gov. Code § 12940(a) was error because the evidence didn’t show she couldn’t establish a physiological cause for obesity;
Evidence that the proffered reason for termination was false and that a supervisor with discriminatory animus participated in the decision created a triable fact issue as to discriminatory termination;
An accommodation claim under § 12940(m) failed absent allegations the Club knew of a physiological cause;
Fact issues existed as to a § 12940(j)(1), harassment claim;
A retaliation claim under § 12940(h), failed because requesting accommodation wasn’t protected activity; and
The common interest privilege under Civ. Code, § 47(c), applied to allegedly defamatory statements, and a fact issue existed as to actual malice.
Cornell v. Berkeley Tennis Club (California Court of Appeal, 1st Appellate District, 12/21/2017).
Bottom Line
California employers should be sure that their managers are aware that an individual’s weight can be seen by courts as a protected category in the state. Business owners should be certain to have weight sensitivity as a component of their harassment and discrimination prevention training.
In addition, if an employee with a weight issue brings forward allegations of potentially discriminatory or harassing conduct, employers should seriously consider such claims and conduct an immediate and comprehensive investigation. If the investigation shows that there was improper conduct by a supervisor or manager, he or she should be disciplined, up to and including termination.
Lastly, employers who are asked for accommodation from an overweight employee should engage in an interactive process with the employee, as required by state and federal law.