Fifth Circuit: Obese Employee Not Disabled Under the ADA (US)
As discussed in our prior posts on obesity and disability law, there is continuing disagreement in the courts concerning whether obesity alone constitutes a disability, or whether obesity must result from a physical disease or condition in order to be a disability. On February 27, 2020, the U.S. Court of Appeals for the Fifth Circuit became the latest federal circuit court to consider whether obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”) in a case called Lumar v. Monsanto Company.
Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Further, the ADA prohibits employers from discriminating against “qualified individuals” with disabilities, and defines such individuals as applicants or employees who, with or without reasonable accommodation, can perform the essential functions of the job. In 2008, Congress amended the ADA to provide a broader interpretation of the definition of disability under the statute, and added a “regarded as” disabled component of disability discrimination. Thus, under the amendments, applicants and employees who cannot show they have an actual disability within the meaning of the ADA may nonetheless prevail if they can prove their employer regarded them as disabled.
In the years since the amendments, obese plaintiffs in multiple jurisdictions have used this more expansive interpretation of disability to argue that their employers have violated the ADA, as amended, by discriminating against them or creating a hostile work environment because of their obesity. Courts and relevant federal agencies have reached conflicting conclusions regarding the extent to which obesity is protected under the ADA. For example, the U.S. Equal Employment Opportunity Commission (“EEOC”) has taken the position that obesity can constitute an impairment under the ADA in some, but not all, circumstances. Specifically, the EEOC’s interpretive guidance explains that the definition of the term “impairment” does not include physical characteristics, including weight, that are within “normal” range and are not the result of a physiological disorder. Applying a “natural reading” of the EEOC’s interpretive guidance, the Second, Sixth, Seventh, and Eighth Circuits have all held that obesity alone, without evidence of an underlying physiological condition, is not a physical impairment amounting to a disability under the ADA.
But other jurisdictions have come to the opposite conclusion. For example, the First Circuit held in Cook v. State of R.I. Dept. of Mental Health that morbid obesity can be a disability under the ADA even without an underlying physiological disorder and concluded that this issue is ultimately a question for a jury to decide. Further, as we recently reported here, the Ninth Circuit and the Washington Supreme Court have been grappling with this same issue under the Washington Law Against Discrimination (“WLAD”). After the Washington Supreme Court ruled that obesity is protected under the WLAD, the Ninth Circuit reversed a district court’s grant of summary judgment to the employer in the case, holding that the plaintiff’s claim of discrimination based on his obesity asserted a valid legal theory. Although the case did not specifically address the issue of obesity as a disability under the ADA, the Ninth Circuit’s revival of the obesity discrimination claims under state law could mean that the circuit would be willing to find a valid disability claim under federal law as well.
Until now, the Fifth Circuit had not directly ruled on the issue of obesity as a disability under the ADA. However, the U.S. District Court for the Eastern District of Louisiana (which is a district within the Fifth Circuit) held in 2011 that severe obesity is a disability under the ADA and does not require proof of a physiological basis for it to quality. The Fifth Circuit, however, seems to be more discerning when it comes to obesity discrimination claims.
In Lumar, the plaintiff sued his employer under the ADA alleging that the employer discriminated against him and subjected him to a hostile work environment because of his morbid obesity. In order to prevail on his claims, the plaintiff was required to first show that he was disabled. Mr. Lumar contended that his obesity qualified as a disability and alternatively, he claimed that even if his obesity did not qualify as an actual disability, his claims could proceed because his employer regarded him as being disabled, in violation of the ADA. However, the court declined to consider the plaintiff’s regarded-as theory of recovery because he failed to exhaust his administrative remedies and did not assert this argument until his response to his employer’s motion for summary judgment.
Ultimately, the court rejected Mr. Lumar’s claims. Although the court did not join the other circuits in specifically holding that obese plaintiffs need to show that their obesity is the result of an underlying physiological disorder in order for it to qualify as an impairment under the ADA, the court did hold that the plaintiff failed to prove he was disabled. The court reasoned that, even assuming that the plaintiff’s obesity was a physical impairment, there was no evidence that his weight limited his life activities in any way, which was underscored by the plaintiff’s own emphatic testimony that it did not. Therefore, the court held that the plaintiff failed to show he was disabled for purposes of the ADA.
The Fifth Circuit’s decision further illustrates the division among courts regarding the extent to which obesity is protected under the ADA. Accordingly, employers should continue to be cautious when making employment decisions involving this issue and should consider consulting with counsel before making such decisions to ensure compliance in their particular jurisdiction. As always, we will continue to keep you apprised as more courts provide interpretations on this issue.