May 09, 2016

Follow Up: Obesity and the ADA

By: Allison Mann

As previously reported in the March column, Is Obesity a Qualifying Disability under the ADA?, the Eighth Circuit considered the question in Morriss v. BNSF Ry. Co. Now, the Eighth Circuit Court of Appeals has given us its answer—no.

A Brief Review:

First, a quick refresher of the facts is in order. The plaintiff in Morriss sought a job at BNSF, and was extended a conditional offer, but was not ultimately hired because of a negative health assessment based on his weight. BNSF stated that it would not hire plaintiff because of the safety risks posed by the job position he sought and his obesity.

Plaintiff sued under the Americans with Disabilities Act (ADA). The Federal Court denied plaintiff coverage under the ADA after finding that plaintiff’s obesity (where it is not accompanied by a physiological condition) is not a qualifying disability under the ADA.

On appeal, plaintiff argued that obesity, “even without evidence of an underlying physiological disorder or condition, is a physical impairment—and thus a disability—under the ADA.” More specifically, plaintiff argued that BNSF regarded him as having a disability because of his obesity, thus, that it was covered by the ADA.

The Eighth Circuit Opinion:

Once again, the Court rehashed the specific definitions of “disability,” and “physical impairment,” under the ADA and its related regulations. Importantly, the Equal Employment Opportunity Commission (EEOC) describes a physical impairment as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems . . .”

Plaintiff’s argument at the Eighth Circuit focused on the changes made by the ADA Amendments Act of 2008 and the corresponding amendments to the EEOC guidelines. Plaintiff argued that Congress passed the amendments and instructed the EEOC to afford for “broad” coverage under the ADA. In particular, plaintiff pointed to EEOC guidance that stated: “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 the ‘normal’ range and are not the result of a physiological disorder.” In sum, Plaintiff argued that if an individual’s weight is not in the “normal” range, it need not be caused by a physiological disorder in order to be considered an ADA impairment.

The Court completely rejected plaintiff’s position. Instead, it found that this guidance shows that weight is generally a physical characteristic, and that a deviation from “normal” is not ADA eligible unless it is caused by a physiological disorder. Thus, in order to elicit ADA coverage for obesity, a plaintiff must be able to show that its weight is outside the normal range and that it was caused by a physiological condition.

Two other circuit courts had previously issued opinions that are in accord with the current ruling. The Sixth Circuit rejected the EEOC’s argument that a physical impairment includes morbid obesity regardless of its cause, and the Second Circuit held that physical characteristics, such as weight, that are not the result of a physiological disorder are not considered impairments for the purpose of determining ADA disability. However, there are federal and state courts that have come to the opposite conclusion. These rulings were primarily prior to the ADA amendments being passed.

The Eighth Circuit Court of Appeals is the first appellate court to consider this issue since Congress passed the ADA Amendment Act. It stands for a very clear message: obesity, without more, is not an ADA impairment. However, note that the EEOC thinks otherwise. It submitted an amicus brief arguing that weight outside the normal range is an ADA impairment notwithstanding an underlying physiological condition. It is unlikely that the EEOC will just give up on this argument, and will very likely aggressively pursue a different outcome in future cases.

The Takeaway:

The BNSF opinion stands for the position that, in some instances, an employer can choose to not hire an individual because of their weight. However, this is not carte blanche to discriminate against current or potential employees based on weight alone. There are some instances under the ADA where weight is considered an impairment—for example, where obesity is caused by a physiological condition.

In addition, state law must be considered. As of now, the North Dakota Human Rights Act does not include weight as a protected class. However, the North Dakota Supreme Court has stated: “We believe that these commonly understood meanings of disability and handicap may comprehend an obese condition which significantly impairs a person's abilities.” However, the ND Supreme Court stipulated that obesity by itself is not enough—there must be some type of physical limitation. See Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 796 (N.D. 1987). This language is in line with the Eighth Circuit’s holding in Morriss, but it is a bit dated, and it is hard to predict how North Dakota courts may evaluate the issue in the future.

So, what can human resource professionals do to address the issue of weight discrimination in the workplace? First, they must recognize that while the ADA may not outright protect against obesity, there are many underlying conditions that it will protect against (i.e., diabetes, heart disease, depression, and arthritis). For some guidance, consider these practical tips:

1. Provide training to management and employees alike on the bounds of ADA coverage, along with state and local laws. Make sure that supervisors are aware of the effects law and that employee’s know their rights and how best to exercise those rights (i.e. company policy on how to make a request for an accommodation).
2. Carefully consider each request for an accommodation, and grant accommodations when reasonable. Never outright refuse a reasonable request merely on the grounds that the ADA does not cover obesity.
3. Ensure that any job requirement that would preclude an overweight individual from holding the position is absolutely necessary.
4. Foster a workplace where employees know they are to treat their coworkers with respect, regardless of appearance. Do not tolerate disrespect. Jokes about a person’s weight or appearance can quickly evolve into a harassment claim.

These are just a few hints that can help an employer stay on the right side of the law related to discrimination. In addition, a carefully drafted, well-published and always-followed anti-discrimination policy is one of the best defenses.

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Reprinted with permission from an article submitted for publication in the May, 2016 Southwest Area Human Resource Association newsletter.