Is Obesity a Disability Under the ADA?
By Jim Griffin, JD, Employment Counsel
Published April 19, 2016
Is obesity a disability under the Americans with Disabilities Act (ADA)? Less than 10 years ago, the clear answer to that question was “No.” Any court that faced that question held that obesity alone did not constitute a disability under the ADA.
However, the ADA was amended in 2008 in response to several Supreme Court opinions that, according to Congress, improperly narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect. The goal of the amendments was to ensure that the term “disability” was broadly construed to provide expansive coverage under the Act.
The ADA amendments, combined with the June 2012 declaration by the American Medical Association that obesity constituted a “disease,” may have contributed to a number of lawsuits being filed, alleging that obesity constituted a disability under the ADA. In fact, in several instances, the Equal Employment Opportunity Commission (EEOC) has successfully obtained settlements on behalf of employees alleging that the discrimination they faced due to their obesity violated the ADA.
Nevertheless, the first federal circuit court to address this issue, the Eight Circuit Court of Appeals (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota), rejected the plaintiff employee’s argument that his obesity constituted a disability, and affirmed summary judgment in favor of the employer.
In the case, Morriss v. BNSF Railway Co., the plaintiff received a conditional offer of employment for a safety-sensitive position, contingent on passing a medical examination. The medical examination found that he had a body mass index of just over 40, which disqualified him from the job. The employer observed that the plaintiff’s obesity level created an unacceptable risk that he would develop certain medical conditions in the future, such as diabetes.
The applicant sued under the ADA, alleging both that his obesity was a disability, and that the employer perceived him as having a disability. The Court of Appeals did not find either argument convincing and found in favor of the employer.
The EEOC and several interest groups submitted briefs in favor of the applicant. Ultimately, the court did not find them persuasive. The court even analyzed the EEOC’s interpretive guidance pertaining to the ADA, and stated that it did not support a finding in favor of the plaintiff. The portion of the EEOC’s interpretive guidance that refers to weight states:
It is important to distinguish between conditions that are impairments and physical, psychological,
environmental, cultural, and economic characteristics that are not impairments. 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.
The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions,
such as pregnancy, that are not the result of a physiological disorder are also not impairments.
29 C.F.R. Pt. 1630, App'x § 1630.2(h) (emphasis added).
While the applicant and the EEOC argued that obesity that was either outside the normal range or the result of a physiological disorder constituted a disability, the court disagreed with that reading of the guidance. Instead, the court stated that obesity would be a disability only if it was outside the normal range and caused by a physiological disorder.
Therefore, the only federal Court of Appeals that has ruled on this issue has held that obesity alone does not constitute a disability under the ADA; rather, it has to be outside the normal range and the result of a physiological disorder.
Employers should also be wary of “regarding” an employee as disabled based on an employee’s weight. In order to make sure that employers comply with the “regarded as” prong of the ADA, employers should never assume that an employee who is obese has work restrictions and/or is unable to perform essential functions until the employee provides supporting medical documentation. If an employer observes that an employee is unable to perform the essential functions, the employer may 1) treat the matter as a performance issue and proceed accordingly, or 2) consider sending the employee for a medical examination. In deciding the right course of action for a specific situation, employers should consult with legal counsel.