Is an Underlying Condition Required for Obesity Being Protected under the ADA?

The labor and employment blogosphere, see this excellent blog entry of Robin Shea and another excellent, and always provocative, blog entry from Richard Hunt for examples, have been talking about a recent case from the Eighth Circuit holding that obesity by itself is not a disability under the ADA. Normally, if a bunch of people are blogging on a case, I tend to hold off blogging on it myself. However, if I think I can offer a different perspective, I will blog on it anyway and so here goes. Before proceeding further, I blogged on obesity once before here, where I explored a European Union case from a couple years back, which held that obesity by itself cannot be a disability. The case of the week agrees with that approach in that obesity by itself without an underlying impairment cannot be a disability. As is typical with my blog entries, I have divided the blog into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.




Morris applied for a machinist position with BNSF in March 2011, and was extended a conditional offer of employment. Since the position was safety sensitive, the offer of employment was contingent on a satisfactory medical review. He completed BNSF’s medical questionnaire and reported that he was 5’10” tall and weighed 270 pounds, that he had once been diagnosed as pre-diabetic but was not currently diabetic, that he had taken appetite suppressant medication to lose weight but not to address any health concerns, that he considered his overall health good, and that he experienced no difficulties or limitations in his daily activities. In response to a request for additional information concerning his possible history of diabetes, his doctor submitted treatment records for the first three months of 2011, which did not reflect a current diagnosis of diabetes or any symptoms of diabetes. Since BNSF’s policy was not to hire a new applicant for a safety sensitive position if a person’s BMI equaled or exceeded 40, they notified him by email that he would not currently qualify for the safety sensitive machinist position due to significant health and safety risk associated with class III obesity (A BMI of 40 or greater) and revoked the conditional offer of employment. He sued alleging both actual disability as well as regarded as disability. In particular, the District Court noted that the plaintiff had unequivocally denied suffering from any medical impairment or condition on the medical questionnaire, had described his health as good, and had disclosed no difficulties or limitations in his daily activities. Instead, he stated that he did not believe he had a physical disability, that he was not aware of any underlying condition contributing to his obesity or to his inability to lose weight, and that his weight caused no physical limitations. Accordingly, summary judgment was appropriate on the actual disability claim. The court also said that because BNSF acted only on its assessment of the plaintiff’s predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA, and therefore, granted summary judgment on the regarded as claim as well.


Court’s Reasoning

In holding that there must be an underlying impairment for a person with obesity to be protected under the ADA, the court reasoned as follows:

  1. The ADA does not define physical impairment. However, the amendments to the ADA specifically gave regulatory bodies the right to issue regulations implementing definitional terms. The EEOC defined disability, at 29 C.F.R. § 1630.2 (h)(1), as, “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”
  2. There is an EEOC interpretive guidance referring to weight stating that 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 plain reading of this interpretive guidance is that an individual’s weight is generally a physical characteristic qualifying as a physical impairment only if it falls outside the normal range AND it occurs as a result of a physiological disorder. Such a reading is supported by the EEOC’s treatment in another interpretive guidance dealing with height, weight, muscle tone, and other conditions where they specifically note that they are not impairments unless they are the result of an underlying physiological disorder.
  3. Both the Sixth Circuit and the Second Circuit have reached the same conclusion.
  4. The court did reference a case from 1993, Cook v. State of Rhode Island, Department of Mental Health, Mental Retardation and Hospitals which I always mention in my book, where the First Circuit held that morbid obesity could be a disability, but the First Circuit in deciding so, specifically noted that there was evidence of an underlying physiological impairment in that case.
  5. While it is true, that the amendments to the ADA make clear that the definition of substantial limitation on a major life activity construed by the courts and the EEOC did not go far enough, Congress did not express any disagreement with judicial interpretations of the term “physical impairment.”
  6. In an appendix to the regulations, the EEOC noted that with respect to 29 C.F.R. § 1630.2 (h), Congress expects that the current regulatory definition of physical impairment as promulgated by the EEOC was not going to change.
  7. While the amendments to the ADA may have a broad policy goal of expanding the disability universe, that policy goal is constrained by language limiting such coverage to the extent permitted by the terms of the ADA. Both the ADA, the EEOC regulations, and the interpretive guidance say that a physical impairment must be the result of an underlying physiological disorder or condition. Therefore, the general policy statement of the amendment to the ADA cannot trump such language.
  8. The argument of the EEOC that whether a person has a disability under the ADA should not demand extensive analysis does not apply either because the extensive analysis piece is focused on whether a person is substantially limited in a major life activity. A person claiming disability protection must before that allege a physical or mental impairment first.
  9. Even if you assume morbid obesity is a protected disability, the plaintiff was not morbidly obese. The plaintiff would have to weigh 400 pounds for that to be the case.
  10. The position taken by the EEOC in the litigation is contradictory to its own regulations and interpretive guidances, and is therefore not entitled to deference.
  11. The EEOC does note in its compliance manual that severe obesity, body weight more than 100% of the norm, morbid obesity), is an impairment. However, the plaintiff was not morbidly obese. Also, this pronouncement in the compliance manual explicitly contradicts the plain language of the ADA as well as the EEOC’s own regulations and interpretive guidance, all of which define a physical impairment as requiring an underlying physiological disorder or condition.
  12. The argument that BNSF perceived the plaintiff as having a current physical impairment because of the refusal to hire him on the ground that he presented an unacceptably high risk of developing certain medical conditions in the future, does not apply because the ADA prohibits an employer from discriminating against an individual on the basis of a presently existing physical impairment as defined by the ADA. The ADA does not prohibit an employer from acting on some other basis, such as on its assessment that although no physical impairment currently exists, an unacceptable risk of a future physical impairment does. That is, the ADA does not prohibit discrimination based on a perception that a physical characteristic as opposed to a physical impairment may eventually lead to a physical impairment as defined by the ADA.
  13. The EEOC’s own interpretive guidance specifically states that the definition of impairment does not include characteristics predisposing a person to illness or disease.



  1. This decision pretty much torpedoes the ability to use obesity as a protected disability under the ADA.
  2. The decision seems pretty well reasoned, and so I would not suggest an appeal to the United States Supreme Court. In addition to that, people with obesity suffer from severe stigmas and that would make only prevailing at the Supreme Court even more difficult considering the thoroughness of the reasoning in this case.
  3. This case applies to morbid obesity as well.
  4. So, if a person is obese, morbid or otherwise (it is becoming more more of a problem in American society), do they have a disability claim? This case makes a regarded as claim difficult. As far as an actual disability claim, it would not be unheard of (please note I am most emphatically NOT saying always), for a person with obesity to have underlying MH issues, such as anxiety or depression. In that situation, a perceived disability case would still be difficult because you would have to show that it wasn’t the obesity that was perceived but rather an underlying MH issue. If there is an underlying MH issue, the actual disability approach might be the stronger approach.
  5. Paragraph 4 of the Takeaways section lead to another issue. That of direct threat. Direct threat, which originates in this U.S. Supreme Court case and can be found in the ADA implementing regulations at 29 C.F.R. § 1630.2(r), says that a person with a disability is not protected by the ADA if they are a direct threat to themselves or others. However, per a different U.S. Supreme Court case, in order for a person to be a direct threat, the employer’s decision must be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Note though that for direct threat to apply, the person must have a disability in the first place. Therefore, forcing an employer to argue direct threat if you have obesity without an underlying condition won’t work. However, if you have obesity and an underlying condition, such as an MH condition, if the MH condition is disclosed, the direct threat defense would then apply. So, on a policy level, this decision may actually have the positive effect of increasing the possibilities of whether people get assessed for MH issues, again assuming that such an MH issue is present in the first place which may or may not be the case, and that those MH issues are brought into the open in the workplace.
  6. It is true that the ADA focuses on present physical or mental conditions. For those conditions that may happen in the future, you want to look at the Genetic Information Nondiscrimination Act.






The ADA and Bar Examiners: Uphill Climb for Wannabe Attorneys may have just become less so

In a previous blog entry, I talked about how a person with an MH history desiring to be an attorney faces an uphill climb with respect to the State Bar’s character and fitness gauntlet that has to be run. In particular, I talked about a case from the Supreme Court of South Dakota that denied a person with MH a license to practice law in South Dakota despite having passed the bar and having obtained a license to practice law in another jurisdiction. Now, the Department of Justice has weighed in via a response to a letter from the Vermont Human Rights Commission inquiring about whether the questions contained in the typical request for preparation of a character report violate the ADA. The Department of Justice letter concludes that it does.

The questions at issue, which are found in the National Conference of Bar Examiners standard request for preparation of a character report, are:

25. Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?

26A. Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner?

26B. If your answer to question 26A is yes, are the limitations caused by your mental health condition or substance abuse problem reduced or ameliorated because you receive ongoing treatment (with or without medication) or because you participate in a monitoring program?

27. Within the past five years, have you ever raised the issue of consumption of drugs or alcohol with the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, mitigation, or explanation for your actions in the course of any administrative or judicial proceeding or investigation; any inquiry or other proceeding; or any proposed termination by an educational institution, employer, government agency, professional organization, or licensing authority?

People who respond affirmatively to question 25 or 26 have to complete a form authorizing each of the treatment providers to provide information without limitation relating to mental illness, including copies of their records pertaining to advice, care, or treatment provided. They also have to complete a form describing the condition and treatment or monitoring program. Finally, they are required to furnish a thorough explanation.

The Department of Justice in their letter from Jocelyn Samuels, Acting Assistant Attorney General, to the Executive Director of the Vermont Human Rights Commission said that these questions are unnecessary, overbroad, and burdensome for applicants. The letter reasoned as follows:

1. Conduct related questions enable states to assess effectively and comprehensively an applicant’s fitness to practice law in response to conduct related questions can be taken into account by the State Bar. Numerous questions on the standard form seek information concerning an applicant’s conduct. For example, the questions go to whether a person has been the subject of charges, complaints, grievances, or other discipline related to professional conduct or complaints in an administrative forum. Other questions go to whether a person has been cited for, arrested for, charged with, or convicted of any violations of the law. Yet other questions go to whether a person has had adverse action taken against him or her by a college or university. Then there are questions going to whether a person has been terminated, laid-off, permitted to resign, or disciplined by an employer and whether the person has managed debt and credit responsibly. All of which go to in a nondiscriminatory manner whether an applicant is currently fit to practice law.

2. While states often use the National Conference of Bar Examiners character and fitness application as a tool for conducting character and fitness screenings, using a third party to gather that information does not insulate a public entity from complying with the ADA. Also, it is state offices that determine how to interpret the National Conference of Bar Examiner report, what actions to be taken based on that report, and how the information in that report is applicable to the applicant’s fitness to practice law. Thus, the State Bar licensing authorities have the obligation to comply with the ADA (a point that the South Dakota Supreme Court agrees with, though not necessarily as to what it means).

3. Questions as to conduct are one thing but questions as to status are quite another. That is, the applicant’s MH diagnosis and treatment history are being presumed to be questions appropriate for further investigation. As such, the inquiries are based upon mere speculation, stereotypes, or generalizations about people with disabilities and are prohibited by the ADA. Such questions screen out persons with disabilities in violation of the ADA and the implementing regulations.

4. The questions are not necessary to achieve the objectives of whether individuals applying for admission to the bar are fit to practice law because there are other effective nondiscriminatory methods for identifying unfit attorney applicants already covered in the standard request for preparation of a character report. In addition to not effectively identifying unfit attorney applicants, the questions also have an effect counterproductive to the objective of ensuring that license attorneys are fit to practice.

5. In addition to the numerous questions in the standard application for character and fitness that go to conduct, prospective attorneys are also required to provide at least six personal references as well as contact information for every employer and residence for the past 10 years. Between all of that, a comprehensive basis for determining an individual’s fitness to practice law exists and it is not necessary to resort to discrimination regarding a person’s mental health history. Also, follow-up questions are permitted if a state bar licensing authority determines that the response to the standard questions going to conduct do not provide enough information to determine whether the person possesses the character and fitness to practice law.

6. The best predictor for present and future mental fitness is past behavior and not diagnosis. Further, history of mental health diagnosis or treatment does not provide, according to the experts, any basis for predicting future misconduct. In fact, both Rhode Island and Virginia have agreed that attorney licensing question related to MH status of treatment are unnecessary because they have little if any predictive value.

7. Question 26A, which inquires into the possible effect of an applicant’s disability if untreated, focuses the question on the diagnosis and not the real effect of that diagnosis on his or her fitness to practice law. It also focuses on the hypothetical future and not on the applicant’s future ability to practice law. In essence, it assumes a worst-case scenario, which may never happen. Further, the question is intended to single out individuals with an MH condition or substance abuse problem because it assumes that a yes answer is related to those conditions. The Department of Justice did note that if the language, “if untreated could affect” were taken out, then the question becomes focused on conduct and would be permissible.

8. Question 27 also singles out MH diagnoses unnecessarily because numerous other questions in the standard report would get the bar to the same place. Therefore, question 27 is unnecessary.

9. The effect of the questions is likely to deter applicant from seeking diagnosis, counseling and/or treatment for mental health concerns since disclosure would make it extremely difficult for them to become members of the bar. That doesn’t make a lot of sense to the Department of Justice if the purpose is ensuring the fitness of licensed attorneys. In particular, the court referenced the case against the state of Virginia, Clark v. Virginia Board of Bar Examiners, where a law school counselor testified that many students with MH issues are deterred from seeking treatment for MH matters. Any questions that deter applicants from seeking mental health treatments rather than ensuring that licensed attorneys are fit to practice sends the message that a person with an MH history cannot come out if they want to be a licensed attorney. Such a message, according to the Department of Justice, has the perverse effect of preventing those who could benefit from treatment from attaining it while penalizing those who are better able to successfully practice law because they have acted responsibly in taking steps to manage their condition.

10. While investigation into conduct is permissible, a history of MH cannot be used as a screening device to determine whether further investigation is needed because that places additional burdens on applicants with disabilities that are not placed on applicants without disabilities and as such violates the ADA.

11. MH diagnoses cannot be used as the basis of restrictions or conditions on applicant’s license to practice law because of that diagnosis. (Full disclosure here. I am the president of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Center For Mental Health Law to the Department of Justice saying that this practice, which is happening in Louisiana, violates the ADA). That is, a person qualified to be admitted to the bar as an attorney cannot be relegated to a separate admission status solely on the basis of the MH diagnosis unless conduct indicates otherwise. However, if such conduct indicates otherwise, then separate admission status is permissible providing it is justified by objective evidence of the applicant’s conduct and not based upon generalization or stereotypes because of the applicant’s MH diagnosis.

12. MH information can be requested only in the situation where an applicant’s mental health condition currently affects his or her fitness to practice law. Also, the bar licensing authorities do have the option to request voluntary disclosure of disability related information as a mitigating factor in the admission process if the bar licensing authority intends to recommend denial or restriction of admission because of conduct. It is in those situations that the Department of Justice believes an applicant should be provided with a voluntary opportunity to present disability related information explaining the conduct.

13. With respect to 12, such request by the bar licensing authorities has to be limited and narrowly tailored to assess the impact of the condition that was voluntarily disclosed on the applicant’s current fitness to practice law application, and any health-related information or records has to be kept strictly confidential. The Department of Justice views the confidentiality piece as being particularly important because if there is a lack of confidentiality, additional burdens are placed on the applicants in violation of the ADA. It also may violate an applicant’s liberty interest. Finally, exposing the information prevents individuals with disabilities from pursuing the legal profession, seeking treatment, and also reduces employment opportunities by allowing prospective employers to find out information about the disability which they would not be otherwise entitled to have.


1. I don’t know what the timeframe is for reconsidering a decision of the South Dakota Supreme Court, but it seems that this particular individual, if it is not too late, would want to see if he could not get the Department of Justice involved in light of this letter. The problem this particular applicant would have is that the South Dakota Supreme Court had many issues before it pertaining to the applicant’s conduct and it wasn’t simply a matter of an MH diagnosis. That said, there are aspects of the decision that would be considered problematic in light of the Department of Justice letter.

2. It will be interesting to see whether state bars push back against the Department of Justice. After all, it is the courts that are going to have the final say. The stigma associated with MH being what it is, it is unclear just how the courts would react. As the South Dakota Supreme Court mentions in their decision, the way the ADA is structured, where a person has to be a person with a disability as well as a qualified individual, that could give the state bars considerable latitude in their investigation. Where that latitude turns into discrimination, may be a point that some state bars choose to determine in the courts. Finally, there are decisions out there that allow state licensing authorities for attorneys to inquire into an applicant’s mental health diagnosis, but the Department of Justice believes that those decisions are wrongly decided and are inconsistent with the ADA. That said, state bars may disagree with that premise and attempt to rely on those decisions upholding the questions. The final answer will have to be worked out in the courts.

3. The letter is certainly a victory for persons with MH as it shows where the Department of Justice stands on the matter and is a wake-up call to state bars so that they now know there are additional risk to some of their ongoing practices.

4. As a preventive manner, a bar licensing authority is probably better off if it wants to prevent litigation eliminating the MH questions mentioned above and ensuring that any investigation is narrowly focused on conduct going to whether the person can practice law. Alternatively, if a state bar licensing authority wanted to rely on the decisions allowing these questions, which probably means expensive litigation via taking on the Department of Justice at some point, then any investigation as a result of these questions being answered should be extremely narrowly tailored to finding out how the condition affects current fitness to practice law. Any investigation going beyond that would be extremely problematic.

5. I look for a lot of litigation going forward in the area of persons with MH trying to get admitted to state bars and to being able to practice law without restrictions.

6. Other licensing bodies for other professions are going to want to read this letter to see if their practices, particularly if they are inquiring as to MH history, are exposing them to ADA liability.

Finally, as my disclaimer to my site says, the opinions expressed here are my own and not necessarily representative of any organization that I am a part of.