The United States Supreme Court has declined to hear an appeal of a decision by the Court of Appeals for the Eighth Circuit, which held that that an obese job applicant was not disabled for purposes of a lawsuit under the Americans with Disabilities Act ("ADA"). By declining to hear the case, the Supreme Court left unresolved an issue splitting federal courts, and leaving employers without guidance as to reasonable accommodations and other requirements under the ADA.
Obesity is a subject most employers are likely to face. According to the Centers for Disease Control and Prevention ("CDCP"), more than one-third (36.5%) of U.S. adults qualify as obese (my home state has unfortunately once again tied for the silver medal in this competition). This has a significant impact on employee health-related costs. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer, some of the leading causes of preventable death. The CDCP estimates that the annual medical cost of obesity in the U.S. is $147 billion, and the medical costs for people who are obese are $1,429 higher than those of normal weight.
The story of Morriss v. BNSF Railway Company began in 2011. Melvin Morriss applied for a machinist position with BNSF Railway Company ("BNSF"), and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review.
BNSF doctors conducted two physical examinations of Morriss, who was 5’10" tall. In the first, Morriss weighed 285 pounds and had a body mass index ("BMI") of 40.9. In the second, 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. The company notified Morriss by e-mail that he 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)", and revoked its conditional offer of employment. Other than being overweight, Morriss had no other health problems, was not diabetic, and experienced no difficulties or limitations in his daily activities.
Morriss filed a lawsuit under the ADA, which was dismissed by a Nebraska federal District Court, which held that Morriss had failed to provide any evidence that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. Morriss appealed the decision to the United States Court of Appeals for the Eighth Circuit.
"Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled ‘severe,’ ‘morbid,’ or ‘Class III’ obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder.
As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while ‘normal deviations’ in weight ‘that are not the result of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such deviations may constitute impairments.’ The Compliance Manual also states that ‘severe obesity,’ namely, ‘body weight more than 100% over the norm,’ is an impairment. We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance, which, as previously explained, all define ‘physical impairment’ to require an underlying physiological disorder or condition.
In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment. Because Morriss failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, the district court properly concluded that Morriss did not have a physical impairment under the ADA."
The
Eighth Circuit is not the first U.S. appellate court, post ADAAA, to require
that obesity or morbid obesity must be caused by a physiological condition to
be considered a disability. See EEOC v.
Watkins Motor Lines, Inc., 463 F.3d 436 (6th
Cir. 2006).
However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA. The case of EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job. Before the EEOC filed suit, Harrison died. In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:
"A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range that is, if the charging party is severely obese there is no explicit requirement that obesity be based on a physiological impairment. At all relevant points, Harrison was severely obese; when she was hired, she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds."However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA. The case of EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job. Before the EEOC filed suit, Harrison died. In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:
However the case never went to trial. Following the District Court’s ruling against the employer, the addiction treatment facility settled with the EEOC for $125,000.
So after the Supreme Court’s decision to not review the Eighth Circuit ruling in Morriss, where does this leave employers? First of all, employers should not consider the Morriss ruling to mean that obesity can never be a disability under the ADA. As in all such cases, a determination of whether an employee has a covered disability requires an individualized assessment of the particular facts and circumstances. However, the ruling by the District Court in Louisiana also should be troubling to employers, because under that interpretation, more than a third of the adults in this country could conceivably be considered disabled, based on the CDCP’s statistics. Expect to see the Supreme Court forced to weigh-in on this issue in the future.
