In McElroy v. The Dept. of Educ. of the City of New York, No. 160689/2017, 2019 WL 132532 (Sup Ct, New York County Jan. 08, 2019), the court (inter alia) denied defendant’s motion to dismiss, as insufficiently alleged, plaintiff’s claim that she was subjected to a “hostile work environment” because of her alleged disability (here, obesity).
While this case is still in the pre-discovery phase, there is relatively little that can be said about what kinds of facts might suffice to support such a claim in the long term.
That said, the court did determine that “plaintiff’s allegations do state a claim under the broader NYCHRL as they are more than ‘petty slights and trivial inconveniences'” and therefore, the statute’s “applicability rests on whether plaintiff pleads that the hostility was directed at her because of her membership in a protected class.” It further noted that “[w]hile one comment was directed at her because of her race, most of plaintiff’s claim relies on morbid obesity being a protected class.”
The court’s discussion on this issue is instructive:
Whether morbid obesity, on its own, is a disability under NYCHRL is not well settled. Section 8-102 (16) defines disability as:
(a) The term “disability” means any physical, medical, mental or psychological impairment, or a history or record of such impairment.
(b) The term “physical, medical, mental, or psychological impairment” means:
(1) An impairment of any system of the body; including, but not limited to: the neurological system; the musculoskeletal system; the special sense organs and respiratory organs, including, but not limited to, speech organs; the cardiovascular system; the reproductive system; the digestive and genito-urinary systems; the hemic and lymphatic systems; the immunological systems; the skin; and the endocrine system
The New York Court of Appeals has ruled that even under the more rigid NYCHRL, obesity can be considered a disability (see State Div. of Human Rights ex rel. McDermott v Xerox Corp, 65 NY2d 213 ). However, obesity alone is not a disability, but rather must be connected to a medical diagnosis (Delta v New York State Div. of Human Rights, 229 AD2d 132, 139 ). A plaintiff must establish that they have been clinically observed as having an “abnormal medical condition” and that the condition affects their ability to meet certain work requirements (id. at 140). Even under the NYCHRL, a plaintiff must show that his/her obesity is an impairment. Here, as discovery has not begun, plaintiff has not been afforded the opportunity to establish that her obesity is a medical or physical impairment.