The New Jersey Appellate Division in Dickson v. Community Bus Lines, Inc. d/b/a Coach USA, A-3857-17T3 (App. Div. Apr. 4, 2019) recently considered a discrimination claim by an overweight bus driver who was placed on administrative leave for failing a medical examination required by the Department of Transportation. The Appellate Division affirmed the trial court’s grant of summary judgment for the defendants, holding that (1) obesity itself is not a disability under the New Jersey Law Against Discrimination (LAD), and (2) rude comments by Dickson’s co-workers were not severe or pervasive enough to alter his conditions of employment, in part because the employee also participated in similar self-deprecating humor at work.
Corey Dickson worked as a bus driver for Community Bus Lines, Inc. for 10 years before being placed on administrative leave when he failed to pass a medical examination required by the Department of Transportation (DOT) to maintain his Commercial Driver’s License (CDL). Dickson weighed between 500 and 600 pounds during his time with Community, and previously passed his DOT medical examinations, which were required every two years. Additionally, Community viewed Dickson as a good and valued employee who received several awards from Community. Dickson’s weight was regularly the subject of rude comments by his co-workers. However, Dickson also engaged in self-deprecating humor, referring to himself as “fat boy” in the workplace, and “fat” on his social media.
On April 15, 2015, Dickson received a medical examination from the DOT, and was required to undergo additional testing before the DOT would re-certify him to drive a bus. Dickson did not schedule the additional testing and was thereafter placed on administrative leave. Community referred Dickson for a second opinion, which resulted in the same conclusion that additional testing was required. Dickson, nonetheless, declined to obtain the additional testing. Notably, none of the doctors determined that Dickson was disabled.
Dickson remained on leave, and in February 2016, filed a complaint against Community alleging violations of the LAD. As the litigation proceeded, Dickson received multiple diagnoses including obstructive sleep apnea, peripheral edema, morbid obesity, chronic congestive heart failure, and myocardial systolic dysfunction. He also suffered a stroke.
Ruling on Community’s motion for summary judgment, the trial judge concluded that obesity did not constitute a disability under the LAD, or that Dickson was subject to a hostile work environment based on a perceived disability. Although the judge found that Dickson was obese, he concluded that Dickson failed to demonstrate that his obesity was the result of bodily injury, birth defect, or illness, as required by the LAD. The judge also found that Dickson was not subject to a hostile work environment because the rude comments about Dickson’s weight were not severe or pervasive, especially because Dickson himself participated in making self-deprecating comments. Moreover, Dickson failed to establish that anyone at Community perceived his obesity to be the result of an underlying medical issue.
Appellate Division’s Decision
The Appellate Division upheld the trial court’s decision, holding that Dickson’s “obesity was not a disability caused by a bodily injury, birth defect, or illness.” In doing so, the Court relied upon the Supreme Court’s previous holding in Viscik v. Fowler Equipment Co., 173 N.J. 1, 17 (2002) that obesity, standing alone, is not a disability under the LAD. In Dickson’s case, his doctors never determined that he was disabled and, in fact, he had previously passed every physical since he was hired in 2005 and his weight had never been less than 500 pounds.
The Appellate Division also rejected Dickson’s argument that his employer perceived him as disabled. Dickson pointed out that before he was hired, he threatened to sue if they turned him down for being obese. The Court rejected his argument and found that Dickson could not show that the company had ever treated him as if he were disabled. In fact, Dickson won performance awards and had the same routes and pay as everyone else at the company.
Furthermore, the Court rejected Dickson’s argument that his co-workers made rude comments based on a perceived disability, because the record showed only that they perceived Dickson as being obese, which is not a protected class under the LAD. The Court also affirmed the trial judge’s conclusion that although hurtful, the rude comments made by Dickson’s co-workers about his weight were not severe or pervasive enough to alter his conditions of employment, in part, because Dickson also participated in similar self-deprecating humor about his weight.
In New Jersey, obesity is not a protected category under the LAD unless it is caused by bodily injury, birth defect or illness. This decision underscores the value of keeping an employee’s underlying medical issues confidential. If supervisors are unaware of an employee’s medical condition, it will be much more difficult for a plaintiff to claim they were discriminated against based on a perceived disability. Had Dickson been able to introduce direct or circumstantial evidence that his obesity was based on an underlying medical condition, the result in this case would likely have been different. Supervisors must be trained not to speak to employees about their medical conditions and to direct all inquiries regarding same to Human Resources. Lack of knowledge of an employee’s disability is a successful defense for claims of discriminatory termination.