By W. SCOTT EVANS

In a memorandum decision issued on June 24, the West Virginia Supreme Court of Appeals affirmed a Kanawha County Circuit Court judge's decision granting summary judgment in favor of the Mardi Gras Casino and Resort in a legal action wherein a former employee alleged that he was discharged due to his morbid obesity.

The plaintiff, a 22-year-old part-time Blackjack dealer filed suit alleging disability discrimination under the West Virginia Human Rights Act after he was fired after a series of disciplinary actions related to his failure to keep his company issued tuxedo shirt tucked into his pants and his shirt buttoned at his wrists. The casino required all employees to wear a company-supplied uniform which included a long-sleeved tuxedo shirt, a bow tie, an apron and black pants.

The Casino Handbook also required dealers to keep their tuxedo shirts tucked and their sleeves rolled down and buttoned at the wrist. At the time of the proceedings, plaintiff weighed approximately 540 pounds and alleged that his morbid obesity made it difficult for him to find clothing that fit him appropriately and that it further restricted his ability to stand and walk for extended periods of time.

Shortly after plaintiff began, he advised his immediate supervisors that he was unable to walk to the designated employee break area during his 25-minute break period without experiencing fatigue and requested that he take his breaks in an alternative location.

In addition, the former employee also presented a doctor's slip indicating that he needed to sit at work due to his weight. In response to these requests, the casino created a temporary alternate break area and assigned a wheelchair accessible blackjack table so that he could sit while at his post. However, one month after he started the plaintiff was issued a written reprimand for failing to keep his tuxedo shirt tucked into his pants and eleven days later was issued another disciplinary action for the same conduct. He was then subsequently suspended and following an investigation terminated later that month for dress code and break area violations. The plaintiff had worked a total of two months at the casino.

In affirming the trial court's decision that obesity was not in fact a disability as defined by law, the West Virginia Supreme Court of Appeals noted that the rules promulgated by the West Virginia Human Rights Commission to assist in interpreting the Act do not include "obesity" in a list of physical impairments that typically constitute a disability.

In finding that obesity is not a per se disability under state law, the court also noted that despite the plaintiff's claim to have a thyroid condition and arthritis, he did not dispute the fact that he had failed to provide any medical documentation regarding those conditions.

Further, although the plaintiff also argued that the fact that the casino accommodated or attempted to accommodate his condition should constitute sufficient evidence that he was considered by the casino as disabled, the court discounted this claim stating "It is sound business policy for an employer to assist an employee in performing his or her job functions. However, we do not find that assisting an employee with a particular need, such as allowing the employee to sit while working automatically means the employer considers that employee to be disabled."

This memorandum decision highlights an important lesson with respect to disability discrimination claims under the West Virginia Human Rights Act. Specifically, an employee claiming to be disabled is not enough in order to establish protections or the right to accommodations under the Act.

Rather, the employee ultimately bears the burden of establishing physical impairment substantially limits one or more of an individual's major life activities.

Nonetheless, any request by an employee for an accommodation should be viewed for the time being as legitimate until the nature and extent of the alleged condition is clearly determined based upon the appropriate medical documentation.

W. Scott Evans is an attorney in the Charleston office of Jackson Kelly. This editorial appeared on the firm's labor and employment blog.




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