Under the Fair Employment and Housing Act (FEHA), an employer cannot discriminate against an employee because of a “physical disability.” Gov. Code, § 12940(a). 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.” Gov. Code, § 12940(m)(1). Finally, the FEHA prohibits an employer from harassing an employee “because of . . . physical disability.” Gov. Code § 12940(j)(1).
An employee can have a claim against an employer if she can show that she suffered from a disability, could perform the essential duties of the job with or without reasonable accommodations, and was subject to an adverse employment action because of her disability — i.e. that the employee was harassed, retaliated against or terminated because of the disability.
The employer is then required to articulate a legitimate, nondiscriminatory reason for its employment decision. After the employer makes this claim, the employee gets the opportunity to show that the legitimate reasons offered by the employer are false, creating a pretext for discrimination.
In Cassista v. Community Foods, Inc. (1993), the California Supreme Court held that weight may qualify as a protected disability within the meaning of FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and that it limits a major life activity.
And in Cornell v. Berkeley Tennis Club (2017), a California Court of Appeal ruled that a severely obese woman who was fired from her job as a manager and tennis court washer for the Berkeley Tennis Club was entitled to a trial on her disability discrimination claim under the FEHA. In Cornell, the plaintiff sued the Club for disability discrimination, failure to accommodate her disability, disability harassment, retaliation, wrongful discharge in violation of public policy, intentional infliction of emotional distress, and defamation. The Court of Appeal held that obesity may have a physiological cause and reinstated Cornell’s disability discrimination and harassment claims after the trial court granted summary judgment in favor of the Club. The court further held that the legitimate nondiscriminatory business reasons for the termination that the Club offered may have been pretext for her termination, which may in fact have been motivated by discriminatory attitude against Cornell. The Club claimed that Cornell was terminated for planting a tape recorder to secretly record a meeting of the board of directors.
The court also found that Cornell’s testimony that other doctors had determined that her obesity was caused by genetics, and the fact that those doctors were not deposed, was enough evidence for Cornell to overcome the employer’s motion for summary judgment and proceed to trial on this claim.