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Obesity Not Disability Without Underlying Medical Cause

In June of last year, we pondered whether obesity is a mere physical characteristic or a disability protected by the Americans with Disabilities Act (ADA) as now amended by the Americans with Disabilities Act Amendments Act (ADAAA). In that inquiry, undertaken in the context of a pending appeal of a federal court’s dismissal of a case, we noted that organizations from the American Medical Association to the American Association of Retired Persons had weighed in on the question, generally supporting the argument that morbid obesity, in and of itself, should qualify as a disability under the ADA’s now broadened definition of “disability.”

Well now we have an answer – at least from one federal appellate court. Unless caused by an underlying disorder, obesity is not a disability under federal law. When confronted with a possible disability scenario, employers should therefore focus their analysis on whether there is a demonstration of whether the employee’s obesity results from a physiological or other medical condition.

In considering this question, the Eight Circuit Court of Appeals (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota) rejected the argument that morbid obesity, in and of itself, is a disability even if not caused by an underlying physiological condition. While other appellate courts had previously reached that same conclusion, the Eight Circuit is the first appellate court to reach that conclusion under the substantially broadened definition of disability.

The case arose from the rescinding of a conditional job offer for what the employer considered a safety-sensitive position. After medical testing determined that the applicant had a body mass index above 40 and the employer pulled the job offer based on its existing guidelines for the position, the employee sued under the ADA alleging disability discrimination. However, that applicant supplied no evidence that his obesity was caused by any type of physiological issue.

The Equal Employment Opportunity Commission (EEOC), along with several interest groups, filed briefs in the applicant’s support. The appellate court was not swayed, and even pointed out that the EEOC’s own regulations, which the Commission argued against, supported the opposite conclusion. The court also acknowledged that while the primary purpose of the ADAAA was to expand the definition of “disability,” even as amended, the ADA still dictates that obesity is not a “physical impairment” unless it is a physiological disorder and affects a major body system. (Notably, the court did not address whether obesity deriving from a psychological condition might be a disability, but logically that conclusion might follow from the court’s reasoning.) According to the appellate court, the employee’s weight was not the result of such a disorder and therefore he could not show that the employer regarded the employee as having a physical impairment covered by the ADA.

The case provides employers will helpful guidance on their legal obligations when a potentially obese individual applies for a job or requests accommodation. As a legal matter, no federal legal obligations arise unless and until the employer has knowledge of a physiological condition or other medical disorder that arguably causes the employee’s physical circumstances (which an employer should explore with the employee through a good-faith interactive process). It is important to note however that state law may treat obesity as a disability without the need for an underlying medical condition. Michigan’s Elliot-Larsen Civil Rights Act is one such example.

Whether such a legally-based approach comports with the employer’s culture is for each organization to decide, but this recent decision will help employers make that type of determination with more clear legal guidelines that they can consider. As always, it is also a good idea, whenever uncertainty exists, to seek assistance from your friendly neighborhood legal counselor.

© 2022 Foley & Lardner LLPNational Law Review, Volume VI, Number 103

About this Author

Christopher Ward, Litigation Attorney, Foley Lardner Law Firm

Christopher Ward is a partner and litigation attorney with Foley & Lardner LLP, where he focuses on representing and counseling employers in all aspects of labor and employment law throughout the country. He is a member of the firm’s Labor & Employment Practice.

Mr. Ward regularly handles wage and hour matters, including wage and hour class and collective actions under both the federal Fair Labor Standards Act and the provisions of the California Labor Code and Business & Professions Code. Mr. Ward routinely counsels clients on wage...