Is Obesity a Disability? The Effect of the 2008 Amendments to the ADA

July 2012 By Mekesha Montgomery
Tennessee Labor and Employment Newsletter

The obesity epidemic in the United States has been well documented and publicized by those in the media and health care communities.  While there have been reports that the increase in obesity rates has slowed in recent years, the statistics are staggering nonetheless.  Between 1970 and 2010, the obesity rate among adults in the United States more than doubled.[1]  Today, over a third of adults are obese, which is defined by the Centers for Disease Control and Prevention (CDC) as having a body mass index (BMI) of 30 or higher.[2]  By 2030, some experts have projected that 42 percent of adults will be obese, and 11 percent will be severely obese (BMI of 35 or higher).[3] 

This trend has dire consequences for the health care community and, by extension, government spending.  Overweight and obese individuals are at increased risk for disease, including diabetes, heart disease, and certain types of cancer.  And the CDC estimates that these obesity-related problems account for $150 billion per year in health spending.[4]  But the obesity epidemic also has legal implications, particularly for employers, as obesity may now be considered a disability under the Americans with Disabilities Act (ADA). 

Under the ADA, employers are prohibited from discriminating against employees on the basis of disability, and must provide reasonable accommodations to disabled employees.  42 U.S.C. § 12101, et. seq.  The ADA defines disability as (A) a physical or mental impairment that substantially limits one or more major life activities; (B) a record of such an impairment; or (C) being regarded as having such an impairment.  Id.  Reasonable accommodations can include making existing facilities accessible to and usable by disabled employees, job restructuring, modified schedules, reassignment, new equipment or training materials.  Id. Failure to make reasonable accommodations constitutes a form of discrimination, unless the employer can show that "the accommodation would impose an undue hardship on the operation of the business."  42 U.S.C. § 12112(b)(5)(A).

Before the 2008 Amendments to the Americans with Disabilities Act (the ADA Amendments Act or "ADAAA"), much of the conflict between employers and employees under the ADA centered on whether a particular limitation or ailment qualified as a disability under the ADA.  The Equal Employment Opportunity Commission (EEOC) Guidelines provided that except in "rare circumstances," obesity was not to be considered a disability, and most courts held accordingly.  See, e.g., Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997); E.E.O.C. v. Watkins, 463 F.3d 436 (6th Cir. 2006).  Many courts held that obesity could not be considered a disability under the ADA because it did not have a "physiological cause." Id.

The ADAAA did not change the definition of disability, but mandated that it be interpreted more broadly.  It also clarified that mitigating measures (other than eyeglasses) shall not be taken into account in assessing disability, directed the EEOC to revise its regulations regarding the term "substantially limits,"  and expanded the definition of "major life activities."  Specifically, the ADAAA provided a non-exhaustive list of major life activities, which includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.  Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). 

The ADAAA also changed the way courts apply the "regarded as" prong of the disability definition.  Prior to the ADAAA, plaintiffs could prove liability by showing that, despite whether they were in fact disabled under the ADA, their employer regarded them as disabled and discriminated against them by way of an adverse employment action.  However, the disability the employee was "regarded as" having – had to be an actual qualified disability under the ADA.  This is no longer the case.  Now, under the ADAAA, a plaintiff need only show "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."  See 42 U.S.C. § 12101(1)(C); Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). 

The effect is that the ADAAA has shifted the focus to the alleged discrimination at issue, rather than whether an individual is disabled.  The result is that particular conditions or impairments that usually would not have qualified as a disability pre-ADAAA, such as severe obesity, may now be considered a disability by courts. 

Since the passage of the ADAAA, the EEOC has taken the position that obesity sufficiently affects major life activities to warrant classification as a disability.   Several courts have agreed.  In E.E.O.C. v. Resources for Human Development, Inc., 2011 WL 6091560 (E.D. La. Dec. 7, 2011), the EEOC sued an employer for discrimination under the ADA for the termination of a morbidly obese employee.  The court held that, under the EEOC guidelines, "a physiological cause is only required when a charging party's weight is within the normal range . . . if the charging party is severely obese—there is no explicit requirement that obesity be based on a physiological impairment."  Id. at *4. 

In so holding, the court relied in part on an EEOC Guideline, which states that "being overweight, in and of itself, is not generally an impairment . . . [o]n the other hand, severe obesity . . . is clearly an impairment."  Id. The court further stated that "the cause of a condition has no effect on whether that condition is an impairment" and that "[v]oluntariness is also irrelevant when determining if a condition is or is not an impairment."  Id. 

Similarly, in Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010), an employer moved to dismiss an employee's ADA claim on the basis that obesity could not be considered a disability.  The court denied the motion, holding that "[d]espite Defendant's blanket contention, the Court is unable to say that obesity can never be a disability under the ADA, especially given the [ADAAA]."  Id. at *6.  The court placed particular emphasis on the ADAAA's modified interpretation of "regarded as," noting that "a plaintiff now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment," regardless of whether obesity actually qualifies as a disability under either of the other prongs of the definition.  Id. at *7.

Neither of these cases stands as firm recognition that obesity is a disability under the ADA.  In Resources, the employee withstood a motion for summary judgment, and in Lowe, the plaintiff merely survived a motion to dismiss.  In both cases, the employees were left to prove that their obesity was disabling under the definition, and that their employers discriminated against them because of it.  Nonetheless, the cases demonstrate that employers can no longer easily dispense with obesity-based discrimination claims through dispositive motions.

Because the ADAAA has been in effect for just over three years, case law is still relatively sparse on the particular issue of the amendments' effect on obesity.  Notwithstanding the amendments, it remains clear that being slightly overweight is not a disability.  And it may also become clear over time that courts will only view severe or morbid obesity as a disability.  But while the legal issues may be interesting and relatively complex, the advice for employers is simple: treat obesity like any other established disability under the ADA.  Employers should assume that, post-ADAAA, obese employees are protected, and focus on providing reasonable accommodations. 

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[1] Caroline Cooney, The Obesity Level in America, Livestrong.com, Dec. 28, 2010, http://www.livestrong.com/article/344563-the-obesity-level-in-america/

[2] The Centers for Disease Control and Prevention, http://www.cdc.gov/obesity/data/adult.html

[3] Lauran Neergaard, No end to obesity epidemic, 20-year forecast shows, Associated Press, May 7, 2012, available at http://www.cbsnews.com/8301-505245_162-57429423/no-end-to-obesity-epidemic-20-year-forecast-shows/

[4] Id.

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