Court Rules the ADA Does Not Protect Obesity Unless Resulting From Underlying Physiological Disorder
The Americans with Disabilities Act of 1990 (“ADA”) does not protect obese employees unless the obesity results from a physiological disorder, according to a recent ruling from the Eighth Circuit Court of Appeals (“Eighth Circuit”).[1] The Eighth Circuit (which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) further held that the ADA Amendments Act of 2008 (“ADAAA”), which significantly expanded the ADA’s coverage, did not alter the requirement that a physical characteristic, such as a person’s weight, must be the result of a physiological disorder or condition before potentially falling within the ADA’s protections. This article analyzes the Eighth Circuit’s decision and practical implications for employers.
The ADA, ADAAA, and the Eight Circuit’s Decision
The ADA prohibits covered employers[2] from discriminating against any “qualified individual on the basis of disability,”[3] and defines “disability” as “a physical . . . impairment that substantially limits one or more major life activities . . . .”[4] Although the ADA does not define “physical impairment,” Equal Employment Opportunity Commission (“EEOC”) regulations define the term as “[a]ny physiological disorder or condition . . . affecting one or more body systems[.]”[5]
In Morriss v. BNSF Railway Co., the Eighth Circuit analyzed whether obesity qualifies as a disability under the ADA.[6] The plaintiff-employee (“Morriss”) in Morriss applied to work as a machinist with BNSF Railway Company (“BNSF”).[7] BNSF extended a conditional offer of employment to Morriss, contingent upon a satisfactory medical review because the machinist position was safety sensitive.[8] Morriss considered his overall health to be good and had no difficulties or limitations to his daily activities. However, BNSF’s doctors conducted two examinations, which revealed Morriss had a body mass index (BMI) over 40.[9] BNSF subsequently revoked its conditional offer of employment based on the company’s policy to not hire applicants with a BMI over 40 for safety-sensitive positions.
Morriss filed suit against BNSF for ADA disability discrimination based on his obesity, and the district court granted BNSF’s motion for summary judgment. The district court reasoned that Morriss’s obesity did not meet the ADA’s definition of disability because it was not a “physical impairment” resulting from a physiological disorder, “such as diabetes, hypertension, cardiac disease, or sleep apnea[.]”[10]
The Eighth Circuit affirmed the district court’s ruling, holding that “for obesity, even morbid obesity, to be considered a physical impairment [and potentially receive ADA protection], it must result from an underlying physiological disorder or condition.”[11] In reaching its ruling, the Eighth Circuit looked to and applied previous decisions from the Second and Sixth Circuit Courts of Appeal.[12] The Morriss court found that the Second and Sixth Circuit decisions remained good law despite the fact they predated the ADAAA, because the ADAAA did not change any definitions or regulations regarding physical impairments.[13]
Employer Takeaways
The Eighth Circuit is the third federal appellate court to have addressed the issue of obesity as a disability. Notably, all three appellate courts to have considered the issue (which, altogether, cover federal appeals from fourteen states: Arkansas, Connecticut, Iowa, Kentucky, Michigan, Minnesota, Missouri, Nebraska, New York, North Dakota, Ohio, South Dakota, Tennessee, and Vermont) have come to the same conclusion: obesity is not a physical impairment unless it is the result of a physiological disorder or condition.[14]
The Morriss decision is significant beyond the application of employers’ physical qualification and screening policies.[15] Applying the decision, employers investigating employees’ ADA accommodation requests based on obesity should, in the interactive process, request information regarding the underlying nature of the obesity.[16] Where there is no physiological disorder or condition causing the obesity, the obesity will not be considered a disability in the Eighth, Second, and Sixth circuits, and very likely will not be considered a disability in other federal circuits.
Morriss is also significant for what it does not hold. The decision does not give employers carte blanche to make employment decisions based on weight. Obesity often is associated with and/or caused by an underlying physiological disorder or condition such as diabetes or hypertension. These associated limitations are within the scope of the ADA and may require the employer to provide a reasonable accommodation. Moreover, a blanket policy prohibiting obesity that is not carefully tailored to meet a legitimate business need may be viewed by courts as having a disparate impact on disabled employees, in violation of the ADA.
To ensure compliance with the all applicable laws, employers should consult with counsel to determine whether a planned action or existing policy complies with state and local laws.
[1] Morriss v. BNSF Ry. Co., 2016 WL 1319407 (8th Cir. Apr. 5, 2016); see also Kevin McGowan, No ADA Claim for Obesity Absent Physical Disorder Link, Court Says, Bloomberg BNA, Daily Labor Report (Apr. 5, 2016).
[2] The ADA applies to employers with fifteen (15) or more employees. See 42 U.S.C. § 12111(5)(A).
[3] 42 U.S.C. § 12112(a).
[4] 42 U.S.C. § 12102(1)(A).
[5] 29 C.F.R. § 1630.2(h)(1).
[6] Morriss, 2016 WL 1319407 at *2.
[7] Morriss, 2016 WL 1319407 at *1.
[8] Id.
[9] Id. The first examination showed Morriss had a BMI of 40.9, while the second examination showed Morriss had a BMI of 40.4.
[10] Id. The district court also noted “that Morriss had no limitations placed on his activities; and that Morriss was capable of performing the duties of the machinist position.”
[11] Id. at *7.
[12] EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 442-43 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 86 (2d Cir. 1997).
[13] Id. at *5-6. The Eighth Circuit noted that Congress enacted the ADAAA to address case law that had improperly narrowed the scope of the ADA’s protection, and directed the EEOC to revise certain regulations, but “gave no instructions regarding the definition of physical impairment.” Further, the court reasoned that subsequent federal district court decisions supporting the theory that obesity alone is a physical impairment relied upon “Congress’s general policy statements in the ADAAA . . . to provide ‘broad coverage’ of individuals with disabilities” and fail to reflect Congress’s actual intent to leave the definition of physical impairment untouched.
[14] While state disability discrimination laws often track the ADA’s definitions and rulings, employers must be aware of whether their state’s laws protect obesity, and employers should still consult with counsel to determine whether their proposed actions comply with state and other local laws.
[15] Employers may require applicants to undergo medical screening or ask medical questions related to disabilities only after making a conditional offer of employment. See 42 U.S.C. § 12112(d)(2); see also 29 C.F.R. §§ 1630.13(a) and 1630.14(a), (b). If an employee is screened out because of a disability, the employer must demonstrate that the reason for the rejection is "job-related and consistent with business necessity." 42 U.S.C. § 12112(b). if the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a "direct threat."
[16] See 29 C.F.R. §§ 1630 App’x, and 1630.9. Such a request is a disability-related inquiry, which can only be made after the employee requests an accommodation, or if the inquiry is job-related and consistent with a business necessity. See also 42 U.S.C. § 12112(d)(4)(A).