The U.S. Court of Appeals for the Eighth Circuit recently held that obesity is not a “disability” under the Americans with Disabilities Act (ADA) unless it is caused by a physiological disorder or condition.
In Morriss v. BNSF Railway Company, No. 14-3858, 2016 WL 1319407 (8th Cir. Apr. 5, 2016), the plaintiff had received a conditional offer of employment for a machinist position, contingent on a satisfactory medical review. The medical review revealed the plaintiff was 5’10” tall and weighed 270 pounds; he had once been diagnosed as “pre-diabetic” but was not currently diabetic; and he had taken appetite-suppressant medication for weight loss purposes. The plaintiff had a body mass index (“BMI”) of over 40.
BNSF had a policy not to hire individuals for safety-sensitive positions if their BMI equaled or exceeded 40 due to significant health and safety risks. Based on this policy, BNSF revoked the plaintiff’s conditional offer of employment.
The plaintiff filed suit, alleging BNSF discriminated against him on the basis of his disability and that BNSF regarded him as disabled, in violation of the ADA. The district court granted summary judgment in favor of BNSF, holding the plaintiff failed to show his obesity was an actual disability under the ADA. In so holding, the district court noted the plaintiff did not suffer from any medical condition that caused his obesity; he did not suffer from any medical condition associated with obesity; and he had no limitations on his activities. The district court further held BNSF did not regard the plaintiff as having a disability because it acted only on its assessment of the plaintiff’s predisposition to develop an illness or disease in the future.
On appeal to the Eighth Circuit, the plaintiff argued his obesity, even without evidence of an underlying physiological disorder or condition, is a disability under the ADA and that BNSF regarded it as such. The Eighth Circuit affirmed the district court’s grant of summary judgment, holding that to succeed on a “regarded as” claim, the plaintiff was required to show his obesity was an actual or perceived “physical impairment,” and for obesity to be considered a physical impairment under the ADA, it must result from an underlying physiological disorder or condition, which was not the case here. The court also noted the ADA does not prohibit discrimination based on the perception that a physical characteristic that does not rise to the level of a physical impairment may eventually lead to such an impairment as defined under the law.
The Eighth Circuit joined the Sixth and Second Circuits in rejecting the argument that obesity may constitute a physical impairment even in the absence of an underlying physiological disorder or impairment. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). The court also rejected the plaintiff’s argument that the decisions in Watkins and Francis were inapposite because they were decided before the enactment of the ADA Amendments Act of 2008 (“ADAAA”), which expanded the interpretation of “disability” under the ADA.
Significantly, the Eighth Court rejected the position taken by the EEOC in its interpretive guidance, which, in reference to weight, states: “The definition of the term ‘impairment’ does not include physical characteristics such as . . . weight . . . that are within ‘normal’ range and are not the result of a physiological disorder.” Thus, according to the EEOC, an underlying physiological disorder is necessary to the finding of an impairment only if an individual’s weight is within “normal range.”
The EEOC had filed an amicus brief on behalf of the plaintiff, arguing that, post ADAAA, its interpretive guidance should be read to mean that to prove an impairment, a showing of an underlying physiological disorder is required only if a person’s weight is within “normal” range. The Eighth Circuit disagreed with the EEOC, stating “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 a result of a physiological disorder.”
Despite this ruling from the Eighth Circuit, employers still should tread carefully before denying employment on the basis of an applicant’s obesity. If an applicant has a medical condition caused by the obesity, such as diabetes, hypertension, cardiac disease or sleep apnea, the resulting medical condition may constitute a disability under the ADA.
If you would like for an attorney to weigh in on the Morriss decision, please contact your Kutak Rock LLP attorney or a member of our Employment Law Practice Group listed below.