Daily Labor Report®

Should Obese Workers Get Disability Protection? 7th Cir. to Say (1)

Sept. 17, 2018, 10:21 AMUpdated: Sept. 17, 2018, 8:08 PM

A former Chicago city bus driver hopes to show that severely obese workers must be protected from job discrimination under federal law, even without an underlying medical condition.

That’s the issue percolating in the U.S. Court of Appeals for the Seventh Circuit. Specifically, Mark Richardson wants the court to say that the Chicago Transit Authority violated the Americans with Disabilities Act when it fired him because it perceived his severe obesity as a disability.

The Equal Employment Opportunity Commission considers severe obesity alone to be a physical impairment protected under the Americans with Disabilities Act. But several courts have ruled the opposite way, requiring proof that an underlying physiological condition is causing the obesity.

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.

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 court’s ruling will affect employers within the Seventh Circuit’s jurisdiction—Illinois, Indiana, and Wisconsin.

Multiple groups have filed friend of the court briefs with the Seventh Circuit in support of Richardson, including the Obesity Action Coalition, AARP, and various other organizations.

The AARP’s brief notes that “adults over age 40 experience disproportionate rates of obesity,” hinting at a potential overlap between age and obesity discrimination issues.

Emerging Problem, No Consensus

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. By contrast, about 40 percent of Americans have non-severe obesity, according to the CDC.

“Our society is growing heavier, so I can see this issue becoming an emerging field. But this isn’t an area the courts have delved into, so there’s not a lot of precedent,” Douglas Oldham told Bloomberg Law. He’s of counsel with Barnes & Thornburg LLP in Columbus, Ohio, where he represents employers in employment discrimination disputes.

The ADA prohibits discrimination against qualified workers because of their disability. Workers who feel an employer discriminated against them must show a court that they’re impaired within the meaning of the ADA, they’re qualified to do the job, and they’ve experienced bias because of the disability.

Workers can fulfill the first requirement by showing they actually have a physical or mental impairment, they have a record of such impairment, or they’re “regarded as” having the impairment.

Even if an employer perceives an obese worker as having a disability, “that perceived disability still has to be covered by the ADA,” Oldham said, adding: “And that’s the question: Is morbid obesity alone covered by the ADA?”

Severely obese workers have had a hard time proving that their obesity is covered by the ADA. Most courts have held that obesity alone, without proof of some underlying disease or disorder, is more like a physical characteristic than an impairment.

That can stem from language in the EEOC’s guidance, which says that “physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder” aren’t impairments under the ADA—but the agency itself doesn’t read it that way.

Nevertheless, courts have read the guidance to mean that weight outside the “normal range,” absent an additional physiological disorder, is just a physical characteristic and not protected under federal disability law.

8th, 2nd, 6th: No Disability Without Medical Issue

The Eighth Circuit came to just that conclusion in 2016, ruling against a prediabetic, 280-pound man with a BMI of 40 whose offer of employment as a BNSF Railway machinist was rescinded after medical reviews.

Based on a “natural reading” of the EEOC guidance, the court said as long as the applicant couldn’t show an associated disorder, he couldn’t show a claim that he was “regarded as disabled,” and so the rest of his lawsuit had to fail. The Supreme Court in 2016 declined to review the case.

The Second Circuit and the Sixth Circuit ruled the same way in obesity-related cases.

EEOC: Not What We Meant

But the EEOC doesn’t agree with that “natural reading” of the guidance.

The EEOC disagrees “with the position taken by some courts that morbid or severe obesity must be caused by a physiological disorder in order to qualify as an impairment,” an EEOC spokesperson told Bloomberg Law in an Sept. 13 email. However, “an individual with morbid or severe obesity will have a disability under the ADA only if the condition substantially limits a major life activity,” the agency spokesperson said.

The commission filed a brief in a case before the Ninth Circuit, arguing that morbid obesity is well outside the “normal range” of weight and should be considered an impairment regardless of an underlying disorder.

The Ninth Circuit certified the central question of the case to the Washington Supreme Court on Sept. 17. The plaintiff had sued under a Washington state law that can be interpreted using the ADA and EEOC guidance. But given the circuit split over the ADA’s coverage, and no direct precedent from the state supreme court, the Ninth Circuit believes the state court should interpret the state statute before handing it back over to the federal court.

The First Circuit has sided with the EEOC, holding that obesity can be considered a disability and that the details of the case should be sent to a jury. And the U.S. District Court for the Eastern District of Louisiana—within the jurisdiction of the Fifth Circuit—has ruled against an employer at the summary judgment stage, saying severe obesity is an impairment under the ADA and that the court didn’t need proof of an underlying condition to let the case go to a jury.

Seventh Circuit’s Move

Richardson’s lawsuit argues that the Chicago Transit Authority regarded him as disabled because of his severe obesity and fired him, though Richardson says he’s still able to work as a bus driver. He lost his case in the lower court and appealed. At the time of his firing, Richardson had a BMI of 80 and weighed 594 pounds.

“Mark Richardson’s fight against CTA’s unlawful conduct is a fight for all employees who suffer from extreme obesity and are perceived as disabled because of biases and stereotypes about obesity in the workplace,” Taylor Muzzy, Richardson’s attorney, told Bloomberg Law in a Sept. 12 email. Muzzy is with Jacobs, Burns, Orlove & Hernandez in Chicago.

The Obesity Action Coalition says in its brief that obesity has been viewed “as simply a matter of personal responsibility or willpower. Evolving research in the field, especially throughout the past two decades, has shown that obesity is a chronic, relapsing, multifactorial condition consistent with a disease.”

The Chicago Transit Authority hasn’t yet filed a brief in the Seventh Circuit and declined to comment for this article.

The discussion in the courts is important, but some say that the broader purpose of the ADA and its amendments is to prevent discrimination on the part of the employers, not necessarily to classify different disorders. In that vein, the focus should turn on what employers presume about the health and livelihood of their workers, not necessarily the sorting of disorders into “protected” and “unprotected” piles.

“Generally speaking, employers need to look at their workers as individuals,” Oldham said. “They should be making sure decisions about jobs are about the job, and not their assumptions about a worker’s abilities based on their appearance. Make sure to undertake a proper investigation before arriving at conclusions.”

(updated to include Ninth Circuit decisions issued same day as article publication)

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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