The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against a qualified individual on the basis of a disability. In 2008, Congress amended the ADA, to ensure that the ADA’s definition of disability was construed broadly. The amendment added a “regarded as” disabled component, meaning that applicants and employees who cannot prove that they have an actual disability within the meaning of the ADA may still be able to show that their employer regarded them as having such a disability. This broader reading provides obese plaintiffs a greater opportunity for success in disability discrimination claims; however, this amendment has created differences in interpretation regarding the extent to which obesity is considered a disability under the ADA.
The Seventh Circuit is the Fourth Federal Appeals Court to Hold That Obesity, Alone, is Not a Protected Disability Under the ADA.
On June 12, 2019, the Seventh Circuit Court of Appeals joined the Second, Sixth, and Eighth Circuits holding obesity must be the result of an underlying physiological disorder to qualify as a disability under the ADA in the case of Richardson v. Chicago Transit Authority. In Richardson the plaintiff, a bus driver who weighed over 400 pounds took medical leave due to hypertension and influenza. After he resolved the medical issues and was deemed fit to return to work, his employer required him to take an assessment because the bus seats were not designed to accommodate drivers over 400 pounds. The assessment determined that the plaintiff could not make hand-over-hand turns, he simultaneously used both of his feet on the gas and brake pedals, and he rested his leg near the door handle. His employer transferred him because of safety concerns regarding his operation of the equipment in question. He sued under the ADA, claiming that he should be “regarded as” disabled due to his obesity. The Seventh Circuit affirmed summary judgment for the employer. The court determined that under the ADA, the plaintiff must allege that he suffers from a medical impairment, and that obesity is a physical characteristic -- not an impairment -- and should not be regarded as an impairment.
The Second, Sixth, Eighth, and now Seventh Circuit Courts are applying what they consider a “natural reading” of the EEOC’s interpretative guidance. This reading concludes that physical characteristics, such as obesity, that are not the result of a physiological disorder do not qualify as a disability under the ADA. The opinion in Richardson suggests that if claims for obesity without an underlying physiological condition are allowed, interpretation of what could be “regarded as” a disability would become overly broad and open the court to results that are inconsistent with the ADA’s text and purpose, including potential claims for weight-based claims from individuals with weight slightly outside of a normal range without any physiological basis as the cause, and making the “regarded as” amendment a catch-all for discrimination based on appearance, size, and more, none of which are disabilities the ADA was designed to protect.
What Are Other Jurisdictions Saying?
In the First Circuit case of Cook v. State of R.I., Dept. of Mental Health, Retardation, & Hosps., the First Circuit held that obesity, by itself, should be protected without evidence of an underlying physiological disease or disorder. The Court took the position that the issue is a question of fact for a jury to decide.
Likewise, although the Fifth Circuit has not directly ruled on this issue, a case arising in the U.S. District Court for the Eastern District of Louisiana, a federal trial court within the Fifth Circuit, EEOC v. Res. for Human Dev., Inc., held that severe obesity can be a disability under the ADA, without evidence of an underlying physiological disorder.
Lastly, a 2018 Ninth Circuit case, Taylor v. Burlington N.R.R. Holdings, Inc., arising under Washington’s state anti-discrimination law, involved a plaintiff who was rejected for a job because he was considered outside of the company’s weight standards for the position. The Court certified to the Washington Supreme Court for guidance the question of under which circumstances obesity qualified as an impairment under the state law. Interestingly, although not arising under the ADA, the EEOC filed a brief in the case, arguing that weight is not an impairment when it is within the “normal” range and lacks a physiological cause, but may be an impairment when it is either outside the “normal” range or occurs as the result of a physiological disorder. The Ninth Circuit acknowledges that whether obesity is to be “regarded as” a disability under the ADA remains an open question in that jurisdiction. The Washington Supreme Court responded this year that obesity is an impairment under the Washington law.
Guidance for the Future
The Second, Sixth, Seventh, and Eighth Circuits “natural reading” of the EEOC’s interpretative guidance rejects the EEOC’s stance that obesity should be “regarded as” a disability. The Richardson opinion makes clear that a court can reject a federal agency’s interpretation when they feel that deference to the agency is inconsistent with the regulation. However, employers should proceed cautiously when taking adverse action against an employee due to obesity and should ensure compliance with the law in their particular jurisdiction. The scope of obesity as a disability is divided amongst circuits and remains a question of fact in others, and the ADA may still protect an employee if there is evidence that an underlying physiological condition causes the employees obesity.
* Jasmine Riddick, Summer Law Clerk, assisted in the research and drafting of this post. Riddick is a rising 2L student at Emory University in Atlanta, Georgia.