Executive Summary: On April 4, 2019, the Appellate Division of New Jersey Superior Court reaffirmed that obesity, standing alone, is not a protected characteristic under the New Jersey Law Against Discrimination (LAD), affirming summary judgment for a bus company employer in Dickson v. Community Bus Lines (N.J. Super. Ct. App. Div. 2019).
Plaintiff Corey Dickson began working for Community in 2005 as a bus driver, a position which required Dickson to maintain a valid commercial driver’s license (CDL). Under federal law and Department of Transportation (DOT) regulations, CDL holders must pass a medical examination every two years and obtain a medical certification card confirming that they are fit to drive. In the ten years Dickson worked at the company, he weighed between 500 and 600 pounds. Until 2015, Dickson regularly passed the DOT physical. However, in April 2015, an independent doctor found that Dickson could not bend over to take off his shoes and had a “massive pedal edema and venous stais.” The doctor declined to issue a medical certification card and temporarily disqualified Dickson from driving a bus pending further testing, including a sleep apnea study and mobility test. The doctor did not determine that Dickson was disabled, instead finding that, based on criteria provided by the Federal Motor Carrier Safety Administration (FMCSA), Dickson needed additional testing before he could be certified to drive a bus. As a result, Dickson’s supervisors placed him “out of service” until he was retested and recertified.
Community referred Dickson to another doctor for a second opinion. That doctor confirmed that Dickson needed further testing. Like the first doctor, the second doctor did not determine that Dickson was disabled. Dickson’s own personal doctor agreed with these assessments about the need for further testing but Dickson declined to pursue it. As a result, Dickson remained on an extended leave of absence from Community.
While on leave in February 2016, Dickson sued Community, alleging Community discriminated against him because Community perceived Dickson as disabled because of his obesity. Community filed a motion for summary judgment, which the trial court granted in a comprehensive written opinion. Dickson had sued under a bevy of legal theories, but on appeal he pressed only a hostile work environment claim premised on perceived disability. In a unanimous opinion, the Appellate Division affirmed the trial court’s judgment.
The appellate court rejected Dickson’s perceived disability claim, finding an absence of direct or circumstantial evidence that Community perceived Dickson as disabled due to his obesity. The court held that the record was one-sided regarding how Community’s supervisors treated Dickson during his tenure: through 10 years, he drove a regular route, was paid fairly, and was even given several accolades by Community. Dickson was a “valued employee who received several commendations,” the court wrote. Community worked with Dickson to become recertified by sending him for a second opinion and keeping his job open so he could pursue the testing the doctors had recommended. The court found it important that Community never fired Dickson, but placed him on an extended leave of absence.
Although not raised by Dickson on appeal, the appellate court also agreed with the trial court that Dickson could not, at the threshold, prevail on his hostile work environment claim because, among other reasons, he was not a member of a protected class. The court reaffirmed New Jersey precedent that obesity, standing alone, is not a disability under the LAD. Rather, to be protected by the LAD, a plaintiff’s obesity must be caused by a bodily injury, birth defect, or illness.
Finally, although there was evidence in the record that Dickson’s co-workers and supervisors made unflattering references to his weight, Dickson testified that he joked around with his co-workers because he considered them friends. Dickson himself made self-deprecating comments about his weight and joked and teased other co-workers “in line with the self-deprecating comments [Dickson] made about himself to the other Community employees when he voluntarily spent time with them in the backroom after work.”
Bottom Line for Employers:
While Dickson is a win for employers based on established law, it serves as a reminder that employers with New Jersey operations must be mindful of the New Jersey Law Against Discrimination’s broader employee protections, including a longer list of protected characteristics than federal EEO laws, a two-year statute of limitations, and no requirement to exhaust administrative remedies prior to filing suit. If you have any questions about compliance with New Jersey employment laws, please contact the authors of this Alert, Jeff Shooman at jshooman@fordharrison.com, or Joanna Rich, jrich@fordharrison.com, both counsel in our Berkeley Heights and New York City offices. Of course, you may also contact the FordHarrison attorney with whom you usually work.