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.
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:
- 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.”
- 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.
- Both the Sixth Circuit and the Second Circuit have reached the same conclusion.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The EEOC’s own interpretive guidance specifically states that the definition of impairment does not include characteristics predisposing a person to illness or disease.
- This decision pretty much torpedoes the ability to use obesity as a protected disability under the ADA.
- 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.
- This case applies to morbid obesity as well.
- 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.
- 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.
- 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.