Is Obesity a Disability?

The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all other places that are open to the general public.[1]   When it comes to employment, the ADA provides that employers covered by the statute may not discriminate against “qualified individuals” with a disability with respect to employment matters.[2]  The ADA defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job.[3]    Thus, the most contested issue becomes the question of whether or not the employee has a disability, as that term is defined by the Act.

One type of claimed disability that is increasingly the subject of litigation is obesity.  Although courts initially were reluctant to recognize obesity as a qualifying disability for purposes of the ADA protections, courts are increasingly willing to consider obesity as a disability giving plaintiffs status to raise ADA claims.

How Does ADA Define “Disability”?

The ADA defines “disability” with respect to an individual as a “physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. “[4]   The 2008 addition of the phrase “regarded as” is a catchall term that means that applicants and employees who cannot prove that they have an actual disability within the meaning of the ADA may still be successful in proving discrimination if they can show that their employer regarded them as having such disability.

EEOC Guidance

In order to provide some guidance on the issue, the Equal Employment Opportunity Commission (EEOC) was charged by Congress with interpreting and enforcing the ADA.  According to the EEOC’s interpretive guidance issued in 2015, “the definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder.”[5]   This follows that weight would not constitute impairment, if it is within “normal” range, and not a result of a psychological disorder. But what is a normal range? Unfortunately, this crucial element is not defined by any statute. According to the CDC, obesity is typically assessed using Body Mass Index (“BMI”).  A BMI of 18.5-25.0 is considered “normal,” and a BMI of 30.0 or higher is considered “obese.”  Individuals with a BMI of 40.0 or higher are usually categorized as “extremely” or “severely” obese.

Obesity Claims under ADA in Court

In the recent years, the number of cases involving claimants filing disability discrimination cases based on obesity has significantly increased.  Based on the “natural reading” of the EEOC’s interpretive guidance, most courts have concluded in the past that physical characteristics, such as weight, that are not the result of a physiological disorder are not considered disabilities under the ADA.  Specifically, the Second, Sixth, and Eighth Circuits have held that even weight outside the normal range – no matter how far outside that range – must be the result of an underlying physiological disorder to qualify as a disability under the ADA. ( See Morriss v. BNSF Railway Co, No. 14-3858 (8^th Cir. 2016); EEOC v. Watkins Motor Lines, No. 05-3218 (6^th Cir, 2006), Cook v. State, 10 F.3d 17 (1993)). Specifically, in Cook v. State, the federal court concluded that, although simple obesity probably would not qualify, morbid obesity caused by a psychological disorder would be a disability entitling the plaintiff to ADA protection.  The court’s finding was premised on the fact that the disorder was permanent, and that the claimant’s weight gain was not meaningfully voluntary.

An increasing number of courts, however, are taking the ADA claims based on obesity more seriously. In September of 2011, the EEOC filed suit in the U.S. District Court for the Southern District of Texas on behalf of a 600lb forklift operator who was allegedly discriminated against on the basis of weight. (Civil Action No. 4:11-vv-03497)  Plaintiff had asked his employer for a seat belt extender in an effort to comply with the safety requirements of his job.  The employer refused the accommodation and two weeks later terminated his employment.  Plaintiff had received positive performance reviews the previous two years and other than needing a large seatbelt, Plaintiff believed that his weight did not interfere with his job requirements.  Eventually, the EEOC and the employer settled the matter for $55,000 and training for managers and human resource employees on the subject of discrimination laws and compliance.

Illinois Courts Weigh In

Recently, the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled that severe obesity is not a “disability” within the meaning of the ADA unless it is caused by a physiological disorder. Richardson v. Chicago Transit Authority, No. 18-2199 (7t0h Cir. 6/12/2019). The plaintiff was a bus driver for the Chicago Transit Authority until his employment was terminated in 2012.  At one point, the plaintiff’s weight reached 566 pounds. He also had high blood pressure and sleep apnea, but he apparently did not claim that those were disabilities — only the obesity.  During an assessment of his fitness for duty conducted in 2010, the CTA found (among other things) that he drove with his foot on the gas and brake pedals at the same time, could not make hand-over-hand turns on the steering wheel, and was too heavy for the driver’s seat (which had a maximum capacity of 400 pounds).  Not surprisingly, the CTA determined that the plaintiff was not safe to operate a city bus.  He was placed on temporary disability status and was eventually terminated.  After he sued, a federal district court granted summary judgment to the CTA on the ground that the plaintiff did not have a “disability” within the meaning of the ADA and was not “regarded as” having one.  The Seventh Circuit agreed, noting that the CTA did not “perceive” or “regard” the plaintiff as having a physical impairment.  To have that perception, the judges said, there would have to be evidence that the CTA not only perceived the plaintiff as being impaired but also perceived that his impairment as a result of “a physiological disorder or condition”, which it was not.

Compare this case, however, to Shell v. Burlington Northern Santa Fe Railway Company, that was decided in the North District of Illinois in 2018 (No. 15-cv-11040, N.D. Ill, 2018). In Shell, the Court suggested that liability could attach where an employer regarded an obese individual as disabled.  In this case, BNSF Railway (“BNSF”) maintained a policy prohibiting employees with a body mass index (“BMI”) over 40 from holding safety-sensitive positions based on its belief that such individuals are at a substantially higher risk of developing medical conditions that “can manifest as a sudden incapacitation or a serious impairment of alertness or cognitive ability.”  Ronald Shell applied for the position of the intermodal equipment operator, a job category that BNSF classified as safety-sensitive because it involves using heavy equipment.  However, a post-offer physical established that Shell’s BMI was 47.5 and his conditional job offer was withdrawn.

BNSF argued that Shell was not protected by the ADA because obesity — by itself — is not a disability.  The Court acknowledged that BNSF did not regard obesity as a disability.  However, it pointed to the fact that BNSF’s policy is based on concerns that someone with a BMI over 40 “would develop sleep apnea, diabetes, or heart disease” and become incapacitated.  All of these conditions, the Court noted, are disabilities.  As a result, the Court held that BNSF was “acting based upon an anticipated worst case scenario derived from precisely the sort of myth, fear, or stereotype which the ADA is meant to guard against,” and denied summary judgment under the “regarded as” prong of the ADA.

Conclusion

It is important to note that the suits under the ADA involve not only actual discrimination based on a person’s obesity, but many involve the perceived disability of an obese employee.  Weight requirements in a job posting or assumptions about an individual’s ability to perform the job based on weight will continue to get employers into trouble unless policies are modified to account for this trend.  With no clear guidance from the regulations or case law, when dealing with obese employees, it is important that employers not make employment decisions based solely on obesity.

 

[1] 42 U.S.C. §12101 et seq

[2] 42 U.S.C. §12112

[3] 42 U.S.C. §12111

[4] 42 U.S.C. §12102

[5] 29 C.F.R. §1630.2(h)