August 2nd, 2019
Robin Shea at Constangy
This is getting to be a trend.
The U.S. Court of Appeals for the Seventh Circuit ruled this week that severe obesity is not a "disability" within the meaning of the Americans with Disabilities Act unless it is caused by a physiological disorder.
A short history of obesity in the United States: First, we quit smoking . . .
Three other federal appeals courts agree: the Second Circuit, the Sixth Circuit, and the Eighth Circuit. (The Second and Sixth circuit cases were decided before the ADA Amendments Act took effect in 2009.) The Equal Employment Opportunity Commission and a few lower courts say otherwise, and the Montana Supreme Court interpreted its state disability statute to protect individuals with obesity.
The plaintiff in the Seventh Circuit case was a bus driver for the Chicago Transit Authority until his employment was terminated in 2012. According to the court's decision, 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, was too heavy for the driver's seat (which had a maximum capacity of 400 pounds), his "leg rested close to the door handle," he couldn't see the floor of the bus while seated, "part of [his] body hung off the driver's seat," and he sweated heavily -- which, in the opinion of one evaluator, was a "hygiene problem" and in the opinion of the other, meant that he was at risk for having a heart "episode" of some sort.
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. A three-judge panel on the Seventh Circuit agreed.
. . . then we quit walking . . .
What's an "impairment"?
The Seventh Circuit panel quoted the EEOC's regulations, which define a physical impairment as "Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems . . ." and said that "the definition of physical impairment remains inextricably tied to a 'physiological disorder or condition,'" even though the definition of "disability" was broadened in 2009 with the ADA Amendments Act. The court also quoted from EEOC interpretive guidance saying that "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 plaintiff argued that this "exclusion" for weight does not apply if the weight is either (1) outside the normal range, or (2) the result of a physiological disorder. Because his weight was outside the normal range, the plaintiff contended that the exclusion did not apply.
But the court said that the exclusion language should be interpreted to mean that weight is not a "physical impairment" unless it is both (1) outside the normal range and (2) the result of a physiological disorder.
. . . and then we quit moving at all. "Alexa, go shopping for me!"
According to the court, the plaintiff's interpretation would drastically expand ADA coverage for weight issues. Anyone outside "the normal range" -- including people who are "overweight" or obese but not "morbidly" so -- would automatically have an ADA-covered disability. Also, anyone with a physiological disorder that affected weight -- even if the individual's weight was normal -- would have a disability.
The court also declined to consider "friend of the court" briefs from medical organizations saying that obesity is a disease. "The ADA is an antidiscrimination -- not a public health -- statute," the court said, "and Congress's desires as it [sic] relates to the ADA do not necessarily align with those of the medical community."
The Seventh Circuit panel also agreed with the lower court that the CTA did not "perceive" or "regard" the plaintiff as having a physical impairment. To have that perception, the panel said, there would have to be evidence that the CTA not only perceived the plaintiff as being impaired but also perceived that his impairment was a result of "a physiological disorder or condition."
What does it all mean?
If obesity that doesn't result from a physiological disorder isn't a "disability," then people with that condition -- no matter how severe -- aren't protected from discrimination based solely on the obesity, and employers have no obligation to make reasonable accommodations. That said, employers should not assume that they have free rein.
First, although it didn't work in this case, a severely obese person can always argue that the employer regarded him or her as having a disability. I suspect that many employers would assume that an extreme level of obesity could only be the result of a physiological disorder. Even under the Seventh Circuit's fairly demanding standard, such an assumption would be enough for a "regarded as" claim.
Second, a severely obese person who has related health problems (hypertension, diabetes, mobility impairments, joint pain, to name a few) may be able to claim discrimination based on those secondary conditions. In this case, for whatever reason, the plaintiff didn't do that, but I bet plaintiffs in the future will do so.
Third, most federal appellate courts have yet to take a position on this issue: the First, Third, Fourth, Fifth, Ninth, and the District of Columbia. They may or may not agree with the Second, Sixth, Seventh, and Eighth circuits. (It's also worth noting again that the Second and Sixth circuit decisions were issued before the ADAAA took effect.)
On the other hand, employers should be able to win cases like this even if the individual has a disability. Where a disability makes the individual unable to perform the essential functions of the job, with or without a reasonable accommodation, or where it creates a "direct threat" to the safety of the employee, co-workers, or members of the public, the employer should be able to win summary judgment. In my opinion, the CTA could have won on these grounds, too.
This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).