8th Circuit: Obesity Not an ADA-Protected Disability
In previous posts, we’ve contemplated whether obesity might qualify as an ADA-covered disability under the more relaxed standards ushered in by the 2009 amendments to the Act. Courts are answering that question mostly in the negative. In Morriss v. BNSF Railway Co. (April 5, 2016), the Eight Circuit joined the Second and Sixth Circuits in holding that obesity qualifies as an ADA-covered disability only if “it falls outside the normal range and it occurs as the result of a physiological disorder.” In other words, garden-variety obesity, not caused by an underlying medical condition, will not cut it under the ADA, even as amended.
In Morriss, the employer extended the candidate an offer of employment condition upon the candidate’s passing of a physical examination. The employer’s policy was not to hire a candidate whose body mass index, or “BMI,” equaled or exceeded a measurement of 40. Because the candidate’s BMI measured 40.9 and 40.4 in two separate tests, the employer withdrew the candidate’s conditional offer of employment. The candidate sued, alleging that the employer had unlawfully refused to hire him on the basis of disability. The candidate alleged that he was “actually disabled” and “regarded as” disabled within the meaning of the ADA.
The district court rejected both claims, granting summary judgment for the employer, and the Eighth Circuit affirmed. In rejecting the “actual disability” claim, the Eight Circuit joined the Second and Sixth Circuits in holding that—notwithstanding the recent liberalizing amendments to the ADA—obesity arises to the level of an ADA covered-disability only under limited circumstances:
“[W]e conclude 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. Both requirements must be satisfied before a physical impairment can be found. 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 most interesting aspect of the Court’s opinion, however, dealt with the candidate’s “regarded as” claim. The candidate argued that the employer’s policy of categorically denying employment to high-BMI candidates ran afoul of the ADA’s “regarded as” provision. The argument has some surface appeal because the law generally holds that such categorical policies violate the ADA’s “reasonable accommodation” mandate.
But the Eighth Circuit never even got to the issue of reasonable accommodation, holding instead that the employer did not regard the candidate as disabled merely because he had a high BMI. It reasoned that:
“The ADA prohibits an employer from discriminating against an individual on the basis of a presently existing ‘physical impairment’ as that term is defined under the Act. See id. § 12102(A), (C) (defining disability as a ‘physical impairment’ or ‘being regarded as having such an impairment.’ (emphasis added)). But the ADA does not prohibit an employer from acting on some other basis, i.e., on its assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment. An individual has a ‘disability’ under the ADA if he has ‘a physical . . . impairment’ or is ‘regarded as having such an impairment.’ 42 U.S.C. § 12102(1)(A),(C) (emphasis added). In other words, as a threshold matter, [the candidate] was required to show that [the employer] perceived his obesity to be a condition that met the definition of ‘physical impairment.’ The ADA does not prohibit discrimination based on a perception that a physical characteristic—as opposed to a physical impairment—may eventually lead to a physical impairment as defined under the Act. Instead, the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment. As noted by the district court, the EEOC’s own interpretive guidance specifically states that ‘the definition [of impairment] . . . does not include characteristic predisposition to illness or disease.’ 29 C.F.R. Pt. 1630, App’x § 1630.2(h).”
In short, the Eight Circuit held that having a marker for a future impairment is not the same as having an actual, existing impairment, which (it concluded) was all that the ADA was meant to cover. It thereby validated the employer’s policy of rejecting candidates who possessed such a marker, i.e., a high BMI.
This case is yet another in a series of cases that suggest obesity will be treated as an ADA-covered disability only in the narrowest of cases, i.e., those where the obesity is substantial and derives from an underlying physiological condition.