SCENARIO:

Discrimination is a sensitive subject. While the facts of a discrimination law suit can often be difficult to read, it is important to understand how these issues play out in the workplace. Both employees and employers need to understand their rights and obligations under the law.

Frank is employed as a shuttle driver by a small boutique hotel in Dallas, Texas. The hotel offers complimentary shuttle service to and from the Dallas airport to its guests. The hotel has 20 employees, including Frank. He was hired in 2012 and has been a model employee since that timealways arrives to work earlier, rarely takes sick days, and is pleasant to all the customers. However, over the past five years, Frank has put on a significant amount of weight, and his manager, Jesse, has become increasingly concerned about Frank's ability to help customers in the event of an emergency. Because the shuttle is small, Frank is not required to maintain a commercial driver's license and, therefore, is not subject to regular medical testing by the Department of Transportation.

Jesse called Frank into his office one day before Frank's shift was about to start and said, "I know you've always done a good job here, but I'm really concerned that your weight could affect the safety of the passengers in the event of an emergency. What if a customer had a medical emergency? What if you needed to help a customer in a wheelchair exit the vehicle in the event of an accident? Would you be able to get to them quickly and help them?" Frank became visibly distraught and after a few moments responded, "I know I have put on some weight since I started here, but last I looked it wasn't a crime. And besides that, I'm seeing a therapist for a food addiction so you can't fire me. I'm protected under the ADA." Then Frank walked out of the office and completed his shift without incident.

Several days later, the management of the hotel developed a new provision in its employee manual which stated, in part, "Due to health concerns for employees, rising health insurance premiums, and the safety of our guests, it shall be the policy of this company and hotel that no employee (1) shall have a body mass index which qualifies them as obese, (2) has high cholesterol, and (3) consumes "fast food" while off duty. Any employee in violation of this policy shall be subject to discipline, up to and including termination." The hotel published the new policy on the "News for Employees" board in the back office. When Frank got into the office, he saw the posting and became extremely distressed. He decided he needed to take the rest of the day off to collect himself and made an appointment to speak with his supervisor the following day.

When Frank arrived for his appointment with Jesse, Jesse stated, "I'm sure you have had time to review the new policy. The company will be asking all its employees to go in for medical testing next month and they are going to have to submit the results to our health insurance carrier to see if we can get a better rate. I don't know how we will be able to continue operating the business if we don't get some kind of break in our costs. I hope you understand that the company is serious with this policy. It is for financial reasons and has nothing to do with you personally."

Frank responded, "I feel like I am being targeted. I have never had an issue at the company and because I have put on some weight you are going to fire me. There is no way that I would be able to lose enough weight by next month. On top of that, do you really think you can fire someone for eating fast food outside of work? That's insane. The company can't try to control people's lives like this!" As he spoke, Frank became more and more agitated, eventually reaching a state of anger, and said, "You just try to fire me! I'll sue you so fast it will make your head spin."

Jesse answered, "This is an employment-at-will state. The company can get rid of you at any time. You better watch who you threaten!" Frank stormed out of the office and Jesse phoned the company's HR consultant to determine whether he could go ahead and terminate Frank for having unruly behavior in his office.

QUESTIONS:

1. Would Frank likely be covered under the Americans with Disabilities Act?

a. No, the company must have more than 50 employees before it is subject to the requirements of the ADA.

b. Yes, if Frank has an underlying psychological cause.

c. No, obesity is not protected under the ADA.

d. Yes, if Frank has an underlying physiological cause or is morbidly obese.

2. Can the company use the medical exam for purposes of lowering insurance premiums?

a. No, any employer can never require a medical exam of any employee.

b. Yes, but only may require applicants to submit to an exam, not someone already employed.

c. No, an employer can only require a medical exam of an existing employee to determine if the employee can still perform his job.

d. Yes, as long as all employees submit to the same exam.

3. What is the company's best defense against a claim of "disparate impact" by Frank in regards to his termination based on the company's policy?

a. Frank is not covered under the ADA, but, even if he was, the employer has a legitimate safety reason for not employing obese shuttle drivers.

b. The policy will help all employees live a healthier lifestyle.

c. The company did not discriminate against a protected class.

d. The policy applies equally to all employees.

4. Assume Texas does not have any state laws or case precedent protecting employees from discipline or discharge based on their off-duty conduct. If the CEO witnesses Frank eating at a local fast-food establishment on his day off, may the CEO fire Frank for-cause?

a. No, it is not the right of the employer to determine what kind of food an employee eats.

b. Yes, but only after Frank receives a written warning first.

c. No, eating fast food is a lawful activity and workers cannot be fired for engaging in any lawful activity.

d. Yes, because the right to eat fast food is not protected by any federal or state statute.

5. Assume that Frank is the only employee who was not born in the United States, although he currently possesses the credentials to work in the United States. Further, assume he is the only employee terminated under the new "health" policy allegedly due to being the only employee in violation by being obese, though Frank knew of at least one other person who was also obese but who retained his job. Which of these causes of action Frank could bring against the company?

a. The company has retaliated against Frank.

b. The company is in violation of Title VII of the Civil Rights Act.

c. The company is in violation of both the ADA and Title VII of the Civil Rights Act.

d. The company is in violation of the ADA.