Is Obesity an Impairment Under the Americans With Disabilities Act?

Employers are in a quandary when it comes to determining if obesity is an impairment under the Americans with Disabilities Act. When Congress passed the ADA in 1990, it defined a disability as an impairment that substantially limits a major life activity, a record of such an impairment or being regarded as having such an impairment. The ADA Amendments Act of 2008 did not change the words in the definition of actual disability, but it indicated that the terms "substantially limited" and "major life activity" should be broadly interpreted.

Specifically, in the ADA Amendments Act, Congress rejected the U.S. Supreme Court precedent that an impairment must prevent or significantly restrict a major life activity permanently or for a long time to be "substantially" limiting. Further, Congress redefined major life activities to include major bodily functions. Finally, Congress indicated an employee is regarded as disabled when (1) an employee has an impairment or the employee's employer thinks he or she has an impairment, (2) that is not temporary (lasting less than six months) and minor and (3) the employee suffers an adverse action because of the impairment. The Equal Employment Opportunity Commission subsequently indicated that the terms "substantially limited" and "major life activity" should be broadly construed in the revised ADA regulations. However, neither Congress nor the EEOC changed the definition of impairment.

So how does the law define "impairment?" According to the Code of Federal Regulations, an impairment is "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." Dorland’s Illustrated Medical Dictionary defines physiologic as "characteristic or conforming to the normal functioning state of a body area tissue or organ." Therefore, an abnormal or pathological functioning of the body, tissue or organ is a physiological disorder. Moreover, the EEOC Interpretative Guidance specifically states that the "definition of the term 'impairment' does not include physical characteristics such as eye color, hair color and left-handedness, height, weight or muscle tone that is within the 'normal' range and is not the result of a physiological disorder." Consequently, an individual's weight arguably does not qualify as an impairment unless it meets two criteria: (1) it is outside the normal range, and (2) it is the result of a physiological impairment. Therefore, the presence of a physiological or mental or psychological disorder is a threshold issue in determining whether a disability exists.

Notwithstanding the statutory requirement indicating an impairment cannot exist absent a physiological disorder, the EEOC always has taken the position that in "extreme" cases, physical characteristics can rise to the level of an ADA impairment even absent a physiological disorder if the physical characteristic is far outside the normal range. The EEOC used this reasoning to assert that morbid obesity could be a disability.

So, does this mean that an obese person cannot be disabled under the ADAA unless he has an underlying impairment that causes the disability? According to the EEOC the answer is "no."

With the advent of the ADAAA, the EEOC expanded its views about simple and morbid obesity. Specifically, the EEOC's pre-ADAAA  position was that morbid obesity could be a disability, but that simple obesity rarely ever would be. After the ADAAA passed, the EEOC deleted the language indicating simple obesity "rarely" would be a disability when it revised its  Interpretive Guidance. Further, in a 2011 Texas lawsuit filed against BAE Systems, the EEOC asserted that morbid obesity is a disability. Importantly, even though the definition of impairment remained the same, and even though Congress did not intend the "broad construction" of the term "disability" to eliminate the impairment requirement, some courts have used the ADAAA to conclude that weight outside the normal range may be an impairment even when no underlying physiological disorder exists that causes it.  For example, two federal district courts in Louisiana and Mississippi and the Montana Supreme Court have held that severe obesity can be an impairment even if it is not based on a physiological disorder. Only a New York district court has disagreed and continued to require a plaintiff to have an underlying impairment that causes the obesity.

Given the EEOC's apparent belief that mere obesity can be an impairment and courts' differing opinions on whether the term "impairment" now must be broadly construed to encompass obesity that is not the result of a physiological disorder and the broad interpretation of "substantially limits," employers should be careful not to make assumptions about obese individuals' ability to do a job. Managers and supervisors should not convey to obese applicants or employees any belief that the individual cannot perform the essential functions of the job held or sought or that the individual presents a safety risk. Moreover, supervisors and managers should not make any comments suggesting to applicants or employees any belief that the employee's weight is an impairment.

Further, employers should not automatically reject accommodation requests from morbidly obese or obese employees. In the BAE System case, the plaintiff who weighed over 600 pounds was required to drive a forklift, which required him to wear a seatbelt. BAE allegedly terminated his employment after he requested a seatbelt extension on the grounds that he no longer could do his job. If true, the seatbelt extension was an easy accommodation to make. When an obese or morbidly obese employee requests an accommodation, an employer has the right to seek information from the individual's physician to determine whether a physiological disorder caused the obesity. If no disorder exists, the employer will have to decide whether to accommodate the employee or "roll the dice" and risk litigation if the employee cannot do his job without it.

Finally, ongoing jokes about an obese employee's weight can result in an ADA harassment claim. Therefore, supervisors should not dismiss complaints about such comments, and they should be investigated like any other complaint under a company's "no harassment" policy.

So, do we have a clear definition of obesity as an impairment under the ADA? The bottom line is that given the ambiguity and uncertainty that currently exists with regard to whether obesity can be an impairment without an underlying physiological disorder, employers must exercise a high degree of caution.

Myra Creighton, JD, is a partner at Fisher & Phillip's Atlanta office. Her practice in labor and employment law has focused on litigation and counseling clients concerning issues under the Americans with Disabilities Act, Family and Medical Leave Act and sexual harassment. She also routinely presents seminars and training programs on those areas of the law. Prior to joining the firm, Ms. Creighton was a law clerk for Judge Duross Fitzpatrick.

More Articles on the ADA:

Trinity Health Systems to Pay $218K Over Failure to Provide Interpreters for the Deaf
Henry Ford Health Settles Alleged Violation of Americans With Disabilities Act

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