Supervisors Overrode HR-Approved Accommodations for Obese Worker

​Supervisors at Capital One ignored HR's approval of reasonable accommodations for an obese employee with body odor who sued under the Americans with Disabilities Act (ADA) after he was fired, according to a recent complaint.

If someone's obesity is caused by an underlying medical disorder that substantially limits a major life activity, such as breathing or moving, then obesity is covered by the ADA, noted Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va.

Body odor isn't typically covered by itself, said David Fram, director of ADA services for the National Employment Law Institute in Golden, Colo. However, the plaintiff's kidney condition, which resulted in strong body odor, arguably would be covered.

HR Approved Accommodations, Supervisors Denied Them

Paul Kaptur, a relationship manager dealing with people applying for automobile loans from Capital One in Illinois, said that after four surgeries to fix a kidney issue he gained weight due to the operations and kidney medications.

Kaptur requested—and was granted—accommodations from Capital One's HR department. But he alleged in his Aug. 16 complaint in the U.S. District Court for the Northern District of Illinois that his immediate supervisors would always deny them.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

For example, Kaptur asked to work in a vacant office away from co-workers if his condition triggered the strong odor. HR approved the request, but his immediate managers denied it. He also asked to have a work chair that did not have armrests on the sides, but he was fired before he received the chair. On Dec. 22, 2015, shortly before his firing on March 22, 2016, Kaptur received a conduct memo that criticized his hygiene and appearance. He had worked for the employer for 16 years and claims in his complaint that he was fired because of his weight and body odor.

Kaptur maintains he was also harassed. Co-workers and managers often made demeaning comments to Kaptur about his weight and odor, he claims. For example, a direct manager allegedly said he should "join a fat farm." Another direct manager told Kaptur that he could not see "someone who looks like you" leading a team. Kaptur's co-workers also regularly taunted Kaptur about his weight, but supervisors never stepped in to stop the behavior, he alleged.

When managers won't listen to HR after it has approved reasonable accommodation requests, or if they allow harassing conduct in the workplace, HR should explain to managers that their job performances will be rated based on their compliance with the law, Fram said.

"Not providing a reasonable accommodation is the same thing as discrimination," he said. "It's part of a manager's job responsibilities to comply with the law."

HR should follow up with supervisors and employees to ensure that approved accommodations have been put in place and are working, Mook suggested.

If managers are pushing back because they believe an accommodation is unduly burdensome, HR should make sure the managers provide evidence of undue hardship, said Joan Casciari, an attorney with Seyfarth Shaw in Chicago.

If supervisors act on their own to deny accommodations, they expose the organization to potential liability, noted Bryan Benard, an attorney with Holland & Hart in Salt Lake City.

"Some organizations empower HR to do what HR knows needs to be done. Other organizations do not do that," noted Michael McClory, an attorney with Bullard Law in Portland, Ore. One workaround at businesses that don't back HR is to involve immediate supervisors in the accommodation request and to regularly brief supervisors on developments. Also inform the supervisors' superiors on how the managers are cooperating.

Accommodations won't be required in every case, which HR should explain to supervisors as well, he said.

Obesity as an ADA Disability

The Equal Employment Opportunity Commission (EEOC) has taken the position that obesity by itself—whether caused by an underlying medical condition or not—can be an ADA-covered disability, Casciari said. The interpretive guidance to ADA regulations states that body weight that falls above or below a normal range can be an impairment, as can abnormal body weight caused by a medical disorder, such as a thyroid condition, diabetes or bipolar mental disorder.

"The courts have struggled with this issue with varying results," she said. Some have decided that obesity must be the result of a medical condition to be an ADA disability, while others have held that morbid obesity—generally being twice what is considered a normal weight—is a disability by itself.

Capital One did not reply to a request for comment.

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