Obesity doesn’t fall under the ADA
April 19, 2016
Article courtesy of SBAM Approved Partner, ASE
by Anthony Kaylin
As the population has aged, waists have expanded. Studies have shown that the American lifestyle is conducive to obesity. However, as a general rule, obesity does not fall under the ADA unless it occurs as the result of a physiological disorder.
Melvin Morriss III, a 5’10” man who weighed 270 pounds, applied for a machinist position with BNSF in March 2011 and was extended a conditional offer of employment. The offer was contingent on a medical exam since the position was considered a safety-sensitive one. Morriss completed BNSF’s medical questionnaire, reporting that he had once been diagnosed as “pre-diabetic” but was not currently diabetic, that he had taken appetite-suppressant medication to lose weight. Overall, Morriss identified himself as having no health concerns and being in good health. In addition, he reported that he experienced no difficulties or limitations in his daily activities.
BNSF doctors requested further information about the diabetes issue from Morriss’ doctor, who responded that Morriss had no current diagnosis and was not diabetic.
Afterwards, BNSF doctors conducted two physical examinations of Morriss. At one of them, Morriss weighed 285 pounds and had a body mass index (BMI) of 40.9; at the other, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40.
BNSF revoked the conditional offer of employment because of Morriss’s BMI, and emailed the following statement to him: Morriss was “. . . [n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).”
Not surprisingly, Morriss sued. He alleged that obesity was an actual disability under the ADA and that BNSF “regarded” his obesity as an actual disability. However, at the trial court level Morriss alleged neither that he had medical impairment nor that his obesity affected his daily activities at all. In fact, he stated that he was essentially in good shape. He also did not show that a medical condition led to his obesity or that his obesity led to any physiological disorder or condition that affected one or more major body systems.
At summary judgement the trial court ruled in favor of BNSF, stating that Morriss failed to show that he was a qualified individual with a disability under the ADA. The trial court also ruled that BNSF did not regard him as having a disability under the ADA.
Morriss appealed, arguing that obesity by itself falls under the ADA, even without evidence of an underlying physiological disorder or condition. The 8th Circuit Court of Appeals disagreed and upheld the trial court’s summary judgement in favor of BNSF.
First, both sides argued that the EEOC’s interpretive guidance of the ADA supported their position (Appendix to Part 1630—Interpretive Guidance on Title I of the ADA (interpretive guidance), 29 C.F.R. Pt. 1630, App’x § 1630.2(h). The court stated that regulatory language makes it clear. . .
. . . that a more natural reading of the interpretive guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder. . . . In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.
The court also ruled that the new amendments under the ADAAA did not support a change in the definition of obesity as a qualified disability. Further, the court ruled that even though the EEOC’s Compliance Manual may support the idea that obesity by itself is a disability, it is in conflict with EEOC’s interpretive guidance and case law. Therefore, obesity by itself is not a disability.
The 6th Circuit has previously ruled on this issue similar to the 8th Circuit in EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006)
For HR professionals there are two takeaways. First, although federal EEOC law does not protect obesity, under Michigan law weight is a protected class. Therefore, hire/fire decisions based on weight need to be reviewed and run by legal counsel. Second, the 8th Circuit did not adequately answer the second question of perceived disability under the ADA or ADAAA. There is a question as to validity of the 40 BMI requirement, which was not discussed by either side. In addition, the court did allude to future illness, implying that obesity could be the cause of future disabilities and thus a perceived disability.