May 7, 2019
On April 4, 2019 the Appellate Division issued an opinion reaffirming that obesity alone does not constitute a disability under New Jersey’s Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1, et seq., in Corey Dickson v. Community Bus Lines, Inc., et al. Plaintiff, Corey Dickson, filed a lawsuit against his former employer, Community Bus Lines, Inc., asserting various causes of action, including a hostile work environment claim under the LAD, after he was temporarily disqualified from his position as a bus driver due to medical issues stemming from his weight. The Appellate Division held that Plaintiff could not establish a hostile work environment claim because neither his obesity, nor others’ perception of him as obese, qualified him as disabled under the LAD.
Mr. Dickson weighed between 500 and 600 pounds. He worked as a bus driver for Community Bus Lines from 2005 to 2015 without issue despite the fact that his weight was generally unchanged. In order to maintain his employment as a bus driver he was required to hold a valid Commercial Driver’s License (CDL). To maintain a CDL Plaintiff was required by the United States Department of Transportation (DOT) to pass an independent medical examination verifying his fitness to drive. In April of 2015 Plaintiff was unable to receive medical clearance following his DOT independent medical examination due to an inability to bend over to take off his shoes and a massive pedal edema and venous stasis. A second independent medical examiner subsequently reached the same conclusion. As a result of his inability to receive medical clearance Mr. Dickson was placed on leave by his employer until he was able to get tested and receive the required medical certification. Notably, neither medical examiner made a determination that Mr. Dickson was disabled.
Rather than get further testing or seek medical certification again Plaintiff filed a lawsuit against Community Bus Lines in February of 2016 claiming that he was subjected to a hostile work environment due to his weight. Plaintiff testified that his co-workers and supervisors regularly made derogatory remarks to him about his weight. However, he also conceded that he too joked about his weight and that his co-workers were his friends. Plaintiff’s supervisors denied ever making or hearing any derogatory remarks made to Plaintiff about his weight. His supervisors also testified that they never viewed Plaintiff as disabled as he was employed as a bus driver for 10 years before this issue arose.
The Appellate Division concluded that these facts were insufficient to establish that Plaintiff was subjected to a hostile work environment based upon an actual or perceived “disability” under the LAD. To establish a claim of a hostile work environment under the LAD, a plaintiff must prove 1) that he or she is a member of a protected class; 2) that he or she was subjected to conduct that would not have occurred but for that protected status; and 3) that the conduct was severe or pervasive enough to have altered the conditions of plaintiff’s employment. Here, Plaintiff’s claim failed from the outset because he could not establish he had a condition recognized as a disability under the LAD. There is no protected class under the LAD based solely on weight. Schiavo v. Marina District Developmental Co., LLC, 442 N.J. Super. 346, 375 (App. Div. 2015). Rather, obesity can only qualify as a disability under the LAD if there is evidence it was caused by an underlying illness or injury, which there was no evidence of in this matter. Viscik v. Fowler Equipment Co., 173 N.J. 1, 17 (2002). The Appellate Division found that Plaintiff had no “disability” and that he could not have been perceived as having a disability because there was no evidence he was perceived as anything other than obese.
The Appellate Division also held that Plaintiff could not establish that he was subjected to conduct so severe and pervasive that it altered the conditions of his employment and resulted in a hostile work environment. The Court reasoned that in light of the fact that Plaintiff made self-deprecating comments regarding his weight to his co-workers, whom he referred to as friends, the remarks made about his weight were not severe and pervasive enough to establish a hostile work environment claim. Further, Plaintiff failed to produce any evidence that these remarks unreasonably interfered with his work as a bus driver.
This decision affirms that an individual cannot establish a claim under New Jersey’s Law against Discrimination based upon the fact or perception that they are overweight. However, employers should nonetheless be cautioned by the fact that a LAD claim may be established if there is any evidence that an individual’s issues with their weight was caused by an underlying condition. It is likely that in many cases an individual may be able to point to another medical condition as having contributed to their weight gain, which could potentially open the door to a LAD claim.
For more information on this topic, please contact MKC&I’s Derrick Grant at (973) 822-1110 or dgrant@mcgivneyandkluger.com.