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
Previously published in the December 20, 2012 edition of Becker's Hospital Review.
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