Friday, March 05, 1999

Being fat not a disability, judge rules in officer's firing




BY BEN L. KAUFMAN
The Cincinnati Enquirer

        Alcoholic, arthritic, diabetic, hypertensive and morbidly obese Carl J. McKibben failed to convince a judge he was a victim of illegal discrimination when he was fired as a Hamilton County corrections officer.

        U.S. District Judge Sandra S. Beckwith said he lost his job because he was overweight and failed to get into shape, not because he was morbidly obese.

        That was acceptable, she said Wednesday, because Mr. McKibben's problems were not disabilities as defined by the Americans with Disabilities Act or impairments under the Rehabilitation Act.

        Mr. McKibben repeatedly failed to comply with Sheriff Simon Leis' 1988 general slim-down policy and an individual order to lose an average of 2 pounds a month.

        After repeated discipline, Mr. McKibben rejected a clerk's job where the weight policy did not apply. He said the pay cut was unacceptable.

        He also refused to participate in a hospital-based weight-loss program paid for by the county because he would have to pay for the special food and drink.

        Mr. McKibben was fired in mid-1996, and he sued — saying he could do the essentials of his job, and that the sheriff and county failed to accommodate his real or perceived disabilities and impairments.

        He sought reinstatement, lost wages and benefits, and unspecified damages.

        Mr. McKibben was 5-feet-11 and weighed more than 300 pounds when he was hired in 1974. He was heavier when Sheriff Leis took over the jail in 1981 and ordered officers to get into shape in 1988.

        Mr. McKibben conceded that his ailments do not substantially limit any of the major life activities that define a disability under law. He offered no evidence to support his claim about alcoholism, hypertension, diabetes and arthritis, so Judge Beckwith rejected that claim based on those problems.

        His obesity was uncontested, but physicians for the county and Mr. McKibben agreed he could handle the corrections officer's job.

        So Judge Beckwith focused on whether he was the object of discrimination because the sheriff considered him disabled.

        That claim failed, she said, because even the perception of an “inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”

        Judge Beckwith said Mr. McKibben had no case because the sheriff treated him as “qualified or able to perform a broad range of other jobs.”

        That said, she rejected his claim under the Rehabilitation Act because he was not handicapped and being considered obese and unfit was not an “impairment” protected by the law. “Weight is considered a physical characteristic, rather than an impairment.”

       



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