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Obese Workers Shielded From Bias? Seventh Circuit Will Hear Case

May 13, 2019, 10:22 AM

Chicago bus driver Mark Richardson weighed nearly 600 pounds when his employer of more than a decade decided it wasn’t safe for him to perform his job. Now a federal appeals court is poised to consider whether allegedly using his obesity as a reason to fire him violated federal disability law.

The case tests the scope of reforms over the last decade meant to tackle myths surrounding obesity, which the American Medical Association designated as a disease in 2013.

If severe obesity is recognized as a disability on its own under the ADA, affected workers would be entitled to certain protections. Employers would have to make reasonable accommodations for their impairments and ensure that the workplace is free of harassment based on the person’s weight. Employees also couldn’t be fired, demoted, or subjected to another adverse job action because of their condition.

The Chicago Transit Authority allegedly fired Richardson after a “special assessment” conducted by the company concluded that he couldn’t properly turn a steering wheel or keep his foot from pushing the brake and gas pedal at the same time.

The case, Richardson v. CTA, will be argued May 14 before the U.S. Court of Appeals for the Seventh Circuit. It will be the latest appeals court to examine whether obesity should be considered a disability under the Americans with Disabilities Act, an issue that has divided appeals courts and explores questions about how far the federal law should extend.

Richardson’s attorneys want the appeals court to overturn a district court’s dismissal of the case. They argue the court erred in saying that all non-physiologically obese individuals are excluded from the ADA. The transit authority denies it fired Richardson because he is obese, but argues that obesity must result from a disorder to qualify for protections under the ADA.

Authority attorneys Irina Dmitrieva and Stephen Wood didn’t immediately respond to request for comment. Richardson’s attorney Sherrie Voyles, with Jacobs, Burns, Orlove & Hernandez, also didn’t respond to request for comment.

Issue Divides Courts

The divisive question comes at a time when views on disability have evolved. While the Equal Employment Opportunity Commission and the First Circuit say obesity alone should be protected from discrimination, the Second, Sixth, and Eighth circuits require workers to show an underlying medical condition is contributing to their weight before the ADA is triggered.

Congress’s 2008 amendments to the ADA were meant to be a guard against “society’s accumulated myths and fears about disability and disease,” Richardson argued in a brief to the Seventh Circuit, quoting the U.S. Supreme Court. Requiring proof of an actual disease before he can move forward with his claim that he was “regarded as” disabled would be contrary to congressional intent, he says.

Obesity as a condition has, so far, not seen the benefit of the significant reforms in the law meant to tackle myths associated with disease, said Dan Kohrman, senior attorney at the AARP Foundation. He said the medical science has changed dramatically surrounding obesity. Performance and ability to do a job should be a primary concern.

“A lot of conditions that used to be the subject of a big fights with extensive back and forth are now focused on issues that go to the core of civil rights law,” Kohrman said. “Obesity is trailing in that regard. On that issue we are back in the bad old days where the fight is over whether these folks have a covered condition under the law.”

But rubber stamping these regarded-as claims without requiring any medical information would increase the number of employees that could claim an actual physical impairment, potentially overburdening employers and making the interactive accommodation process unworkable, the Illinois Association of Defense Trial Counsel told the court. The counsel argued there is no “clear-cut and agreed upon” definition of obesity.

“Such a holding would place a severe burden on employers in multiple ways, including vastly increasing the number of ‘impaired’ and ‘disabled’ employees in all companies, overwhelming employers engaging in the “interactive process” with obese employees, requiring burdensome and costly accommodations, and causing increased claims of discrimination by employees, to name a few of the burdens,” Kimberly A. Ross, attorney with Ford Harrison, wrote in the brief for the Defense Counsel.

Medical Groups Support Worker

Obesity is determined based on body mass index, a calculation of body fat using a person’s height and weight. A BMI of 18.5-25 is considered “normal,” 30-40 is considered obese, and over 40 is considered severely obese, according to the Centers for Disease Control and Prevention. Richardson, who is 5 feet 11 inches tall, had a body mass index of 82, which is 300 times higher than what is considered a healthy weight range.

The rates of severe obesity increased 120 percent between 2000 and 2010, according to the National Institutes of Health. Just about 6 percent of Americans fall into the severe obesity category, the NIH reports. About 40 percent of Americans have non-severe obesity, according to the CDC.

Richardson has supporters in a number of medical associations.

Medical authorities already recognize obesity as a physiological disorder on its own that impacts major bodily systems, the Obesity Action Coalition said in a brief supporting Richardson. The Academy of Nutrition and Dietetics, the Association of Clinical Endocrinologists, the Black Women’s Health Imperative, and Equip for Equality are some of the associations that joined OAC’s brief.

“The science has evolved to make it clear that excessive obesity is a disease and should fall in the definition of the ADA,” said Barry Taylor, who co-authored the brief for the Obesity Action Coalition. “You shouldn’t have to prove impairments to get your day in court.”

Taylor said the case represents the disconnect between medical science and public perception. He said there is an idea that “will power and dieting” will solve obesity but science says that’s not correct.

The BNSF Railway’s friend-of-the-courtbrief in support of the CTA says the medical groups are improperly combining two distinct events: excess weight, and the health consequences of that weight. Weight is an unprotectable physical characteristic, and only physical impairments traceable to an underlying physiological condition are protected even under the ADA’s 2008 amendments, BNSF says.

To contact the reporters on this story: Erin Mulvaney in Washington at; Porter Wells in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Terence Hyland at