The PLUS Blog reports that obese individuals claiming disability discrimination are faring better in the courts, with the EEOC obtaining a settlement in July in Texas on behalf of a morbidly obese claimant, and courts in Louisiana, Mississippi, Montana and New York recently refusing to dismiss discrimination suits brought by overweight plaintiffs.

A number of different developments have converged to support the trend, including (1) the fact that more than 35 percent of American adults are now obese; (2) the advancement of medical technology that can now pinpoint discrete physiological conditions that can cause obesity – converting it from a lifestyle issue to a medical condition; and (3) the ADA Amendments Act and related EEOC guidelines, which focus on perceptions more than whether a person is actually disabled.

The ADA is clear that being overweight, in and of itself, is not a protected disability or impairment, but rather a mere physical characteristic. On the other hand, the EEOC Compliance Manual states that “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” Michigan is the only state that makes it unlawful for employers to discriminate on the basis of weight.

Takeaway: Don’t make employment decisions based on the weight or size of the employee, especially if he or she is more than 100 percent over the norm. Focus on the essential functions of the job.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.