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Obesity in the Workplace
August 29, 2019
Parsons Behle & Latimer Legal Briefings


Obesity is a major issue in the U.S. and may cause job restrictions in the workplace. But is obesity considered a disability under the Americans with Disabilities Act (ADA)? The answer, in classic legal form, is it depends on where you are when you ask that question.

According to the Centers for Disease Control and Protection, approximately 93.3 million U.S. adults, or 39.8 percent of America’s adult population, is affected by obesity.[1]  Obesity has been recognized as a disease by the American Medical Association, National Institutes of Health and the World Health Organization. Even the EEOC states in its Compliance Manual that “being overweight, in and of itself, is not generally an impairment… On the other hand, severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.”[2] 

Whether obesity qualifies as a physical impairment under the ADA or under state law is a legal issue before both federal and state courts and one that is yielding varied results. According to federal circuit courts that have considered whether obesity alone is a disability, the answer is clearly no.  According to the Washington State Supreme Court, the answer is yes.

Seventh Circuit: Richardson v. Chicago Transit Authority

In a June 2019 decision, the Seventh Circuit joined the Second, Sixth and Eighth Circuits in holding that obesity alone is not a disability under the ADA. In the case Richardson v. Chicago Transit Authority, an employee was deemed to be unsafe to work in his position as a bus driver for the Chicago Transit Authority (CTA) due to his extreme obesity.  926 F.3d 881 (2019). The employee weighed more than 400 pounds. CTA terminated the employee after a two-year light-duty work arrangement expired, and the employee spent months working in a temporary medical disability area.

The employee filed his lawsuit alleging the CTA violated the ADA by refusing to allow him to return to work as a bus operator because he was obese. The district court granted summary judgment in CTA’s favor, finding that the employee’s obesity did not qualify as a protected physical impairment under the ADA. The Seventh Circuit affirmed.

More specifically, the Seventh Circuit found that obesity is an impairment under the ADA only if it results from an underlying physiological disorder or condition, which the employee failed to show.  The Court further held that arguments from established medical organizations that obesity alone is an impairment were unpersuasive and non-dispositive as “[t]he ADA is an antidiscrimination—not a public health—statute, and Congress’s desires as it relates to the ADA do not necessarily align with those of the medical community.”

Washington Supreme Court:  Taylor v. Burlington N. R.R. Holdings, Inc.

In July 2019, approximately one month later, the Washington Supreme Court came to the opposite conclusion. Notably, the Washington Supreme Court was not relying on the ADA’s definition of physical impairment but rather the state statutory definition of disability. Importantly, however, the Court relied heavily on the opinions of the medical community defining obesity as an impairment. 

The Washington case began with a lawsuit by an employee accusing BNSF Railway (BNSF) of violating the Washington Law Against Discrimination (WLAD) when it perceived him to be physically impaired because of his weight and rescinded an offer it had made him in 2007 to work as an electronic technician. The employee originally filed a disability discrimination suit in Washington state court in 2010 and BNSF removed the matter to federal court in 2011. In 2016, the federal district court awarded BNSF summary judgment stating (consistent with the federal courts to date) that obesity alone was not a disability under Washington law. The employee appealed to the Ninth Circuit. The Ninth Circuit “certified the question” i.e. asked the Washington Supreme Court to provide guidance on whether obesity qualifies as an impairment under WLAD. The Washington Court stated that it does.

According to Washington law, “Disability” means the presence of a sensory, mental, or physical impairment that: is medically recognizable or diagnosable; or exists as a record or history; or is perceived to exist whether or not it exists in fact.” See RCW 49.60.040(7) (emphasis added). In medically recognizing obesity as a disease, the Washington Supreme Court judges’ majority opinion relied heavily on studies and reports from groups and agencies including the American Medical Association, the World Health Organization, the U.S. Food and Drug Administration, the National Institutes of Health, the Internal Revenue Service and the health insurance company CIGNA.

The Court ultimately concluded and certified to the Ninth Circuit that “…obesity qualifies as an impairment under the plain language of our statute…” and, therefore, it is “illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”

Key Takeaways

Neither the Ninth Circuit nor the Tenth Circuit Courts of Appeal have weighed in on the issue of whether obesity is a disability under the ADA, which is particularly relevant to employers in Utah, Idaho and Nevada. However, as the Washington case above demonstrates, how an employer treats an obese employee may turn solely on the state’s definition of disability.[3], [4], [5]  For example, Utah’s statutory definition of disability relies solely on the ADA definition, so obesity alone would likely not qualify as a physical impairment in Utah. The definitions of disability in Nevada and Idaho, both states within the Ninth Circuit, are broader and either expressly (Idaho) or implicitly (Nevada) rely on medical authority or diagnosis. 

In addition to being aware of state law requirements, employers should also:

  • Exercise caution when presented with a request for an accommodation from an obese employee. Such an employee may still have an ADA-covered disability, if there is an underlying physiological disorder or condition, such as hypothyroidism.

  • Be mindful that obese employees often suffer from medical conditions that are ADA-impairments, such as diabetes or heart disease. In those instances, whether the employee is obese should not matter in determining whether the employee is entitled to the protections afforded by the ADA.

If you question whether your ADA accommodation policies and practices are up to date and are properly tracking your state’s law defining disability, send an email to Maria Hart at mhart@parsonsbehle.com or call (208) 562-4900.  

 

[1] See https://www.cdc.gov/obesity/data/adult.html; see also the summarized findings ser forth in 2015-16 study by the CDC at https://www.cdc.gov/nchs/data/databriefs/db288.pdf.

[2] EEOC Compliance Manual available at https://www.eeoc.gov/laws/guidance/compliance.cfm.

[3] In Utah, “Disability” means a physical or mental disability as defined and covered by the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12102. See UCA 34A-5-102(f) (emphasis added). 

[4] In Idaho, “Disability” means a physical or mental condition of a person, whether congenital or acquired, which constitutes a substantial limitation to that person and is demonstrable by medically accepted clinical or laboratory diagnostic techniques. A person with a disability is one who (a) has such a disability, or (b) has a record of such a disability, or (c) is regarded as having such a disability.  See Idaho Code § 67-5902(15) (emphasis added).

[5] In Nevada, “Disability” means, with respect to a person: (a)?A physical or mental impairment that substantially limits one or more of the major life activities of the person, including, without limitation, the human immunodeficiency virus; (b)?A record of such an impairment; or (c)?Being regarded as having such an impairment. See NRS 613.310.

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