Davina MartinIRPApril 1, 2013

“Obesity According to the Americans with Disabilities Act and the Americans with Disabilities

Act Amendments Act: Is it a Protected Disability or Can Employees Get Fired for Being

Overweight?”

INTRODUCTION

There are highly consistent negative attitudes toward overweight persons in today’s society.

Studies have revealed distressing weight-based stereotypes that “overweight and obese

individuals are lazy, weak-willed, unsuccessful, unintelligent, lack self-discipline, have poor

willpower, and are noncompliant with weight-loss treatment”.1 These stereotypes give way to

“stigma, prejudice, and discrimination against obese persons in multiple domains of living,

including the workplace, health care facilities, educational institutions, the mass media, and even

in close interpersonal relationships.2”

“Do you think she is qualified to do the job without having a lot of absences and difficulties

doing her work” my CEO asked immediately after an applicant I interviewed had left my office.

“I thought she was a great fit for the job, I replied, why would you think she would not be?”

This applicant like many other obese workers in the United States was being stereotyped because

of her weight. She was to the public eye a person that had no concern for her physical

1 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib12 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib1

characteristics and therefore, obviously could not be productive in a business environment. Why

would a company executive want to hire a person that, in their mind, could not even take care of

their own temple, let alone someone else’s? But the better question is, would I be breaking any

laws if we chose to not offer this qualified candidate a position due to her weight? Nothing

explicitly written in the Americans with Disabilities Act3 would prevent my CEO from rejecting

this very qualified applicant based solely upon her weight. Could this potential employee could

take the matter to court claiming the company violated the Americans with Disabilities Act as

amended in the Americans with Disabilities Act Amendments Act4? Depending upon current

interpretation of the law, obesity is in fact, a covered disability under the American's with

Disability Act5 and the Americans with Disabilities Act Amendments Act6; however, because of

the ambiguity of the law, it is not being enforced. 

BACKGROUND

Weight stigma has been socially acceptable for many years within jobs. Attitudes that are

negative towards overweight employees have been commonly reported by coworkers,

employers, students, peers, families, medical personnel, and even small children.7 “Recent

estimates suggest that the prevalence of weight discrimination has increased by 66% over the

past decade, and is now comparable to prevalence rates of racial discrimination in America.”8

3 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)4 ADA Amendments Act of 2008. In enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage. 5 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)6 ADA Amendments Act of 2008. 7 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib18 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib1

On Average, overweight employees are paid $1.25 less an hour.9 Over a 40-year career, obese

workers will earn up to $100,000 less before taxes than their smaller, more size acceptable

peers.10 Slightly heavy women make about six percent (6%) less in wages than standard weight

women. (Baum, 2004).11 Very heavy women make 24% less. Men experience significant wage

penalties only at the highest weight levels. (Roehling, 1999)12 Heavier workers are not given

raises as often as thinner workers. In a study of over 2000 women and men, wage growth rates

were 6% lower in a three-year period for heavier workers. (Loh, 1993)13

It has been found that younger women (ages 18 to 25) employees “are especially penalized if

they are larger than average, earning 12% less than their thinner counterparts (Register, 1990)

and being more likely to be found in low-paying jobs (Pagan, 1997).”14 Other factors were ruled

out, and the reason for the difference was found to be social bias and discrimination. (Gortmaker,

1996; Stunkard, 1993).15

People that were 50% or more above their ideal weight on the height-weight charts, that were

surveyed, reported that 26% of them were denied benefits such as health insurance because of

their weight, and 17% reported being fired or being pressured to resign because of their weight

(Rothblum, 1990).16

9 (Rebecca Puhl, Chelsea Heuer, 2010) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2866597/#bib110 http://www.cswd.org/docs/stats.html11 http://www.cswd.org/docs/stats.html12 http://www.cswd.org/docs/stats.html13 http://www.cswd.org/docs/stats.html14 http://www.cswd.org/docs/stats.html15 http://www.cswd.org/docs/stats.html16 (McAfee) http://www.cswd.org/docs/stats.html

With these astounding facts and percentages of people that are affected by obesity while trying to

work in a competitive job market, this paper will address an overall outlook on why protection

from obesity discrimination is important, and why the clarity of such protection is much needed.

First we will examine the statistical factors of obesity in America, how it relates to the

employment market, and the perception of being an overweight employee amongst supervisors

and peers. We will then examine court cases that interpret the ADA17 and ADAAA18 and how

the law was interpreted and applied to obese individuals. Lastly, we will suggest ways to prevent

further disparate treatment of overweight employees.

Statistics

“Your waistline shouldn’t impact your job search, but unfortunately it may be a deciding factor

when it comes to gaining employment.”19 A study was conducted by the International Journal of

Obesity that showed employees themselves have stereotypical views towards one another if they

are overweight. The case study revealed employees rated other potential colleagues lower when

they were shown pictures of the candidates before weight loss surgery and gave them higher

marks in when shown post-surgery thinner photographs. These candidates’ resumes were equal

in education, skills, and experience. They were not revealed to the scorers that there were; in-

fact; the same persons.20 The categories being rated in the surveys were starting salary,

leadership potential, and likelihood of being hired. According to the outcomes of the survey,

17 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)18 ADA Amendments Act of 200819 The Editors, Study: Obese Job Seekers Have Less Chance of Finding Work, August 15, 2012, http://www.coreperformance.com/daily/live-better/study-obese-job-seekers-have-less-chance-of-finding-work.html20 The Editors, Study: Obese Job Seekers Have Less Chance of Finding Work, August 15, 2012, http://www.coreperformance.com/daily/live-better/study-obese-job-seekers-have-less-chance-of-finding-work.html

overweight people had less chance of being hired. Even if the heavier candidates managed to get

hired and seen more for their skills over their weight, the ratings showed they still would have

faced lower salaries and limited career progression.21

How many Americans are dealing with obesity and how does this affect the workforce?

According to the Center of Disease Control, More than one-third of U.S. adults (35.7%) are

obese.22 Those statistics indicate that one-third of the United States populations are at risk for

unfair treatment in the workplace based upon their weight. With current laws being so vague as

to not specifically identify when obesity discrimination has occurred, it is fair to say that many

people will be unfairly rejected from a job with no consequence from the law due to obscurity of

obesity as a protected category included in the language within the Americans with Disabilities

Act23 and the Americans with Disabilities Act Amendment Act.24

“We live in a society that is obsessed with appearance, and studies show that many people equate

appearance to success.”25 There are employers whom are trying to control appearance in the

workplace by imposing weight restrictions on job applicants or employees as a condition of

employment.”26 Most employees are not aware of what the current law is as it pertains to

21 The Editors, Study: Obese Job Seekers Have Less Chance of Finding Work, August 15, 2012, http://www.coreperformance.com/daily/live-better/study-obese-job-seekers-have-less-chance-of-finding-work.html22 http://www.cdc.gov/obesity/data/adult.html, In 2009–2010, 35.7% of U.S. adults were obese and almost 41 million women and more than 37 million men aged 20 and over were obese.23 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)24 ADA Amendments Act of 200825 Julie Ungerman and Jennifer Jones, Will the Imposition of weight restrictions in the workplace present a hefty problem for employers under the ADA?, Thomas Reuters News and Insight, 9/12/2012, http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_the_ADA_/26 Julie Ungerman and Jennifer Jones, Will the Imposition of weight restrictions in the workplace present a hefty problem for employers under the ADA?, Thomas Reuters News and Insight, 9/12/2012, http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_

companies having weight restriction policies. People want to know if this is this legally

acceptable.

Background: THE ADA

“Whether these policies are permissible can only be answered with a “maybe.” There is no

federal law that prohibits obesity discrimination, so plaintiffs have brought weight discrimination

claims under the Americans with Disabilities Act27 (“ADA”) with varying degrees of success.

Title I of the Americans with Disabilities Act of 199028 prohibits private employers, state and

local governments, employment agencies and labor unions from discriminating against qualified

individuals with disabilities in job application procedures, hiring, firing, advancement,

compensation, job training, and other terms, conditions, and privileges of employment.29

An individual with a disability is defined as a person who:

Has a physical or mental impairment that substantially limits one or more major life

activities;

Has a record of such an impairment; or

Is regarded as having such impairment.

When establishing the required elements of a prima facie case of disability

discrimination under the ADA three elements must be proven:

(1) the individual’s impairment qualifies as a disability within the meaning of the ADA;

the_ADA_/

27 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)28 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)29 Equal Employment Opportunity Commission (EEOC.gov)

(2) the individual is qualified to perform the job-essential functions with or without

reasonable accommodations; and

(3) the individual has suffered an adverse employment action owing to the employer’s act

or omission against the individual.30

THE ADAA

Because of the confusion and uncertainty caused by the ADA and the courts’ varied interpretations of its

scope, the ADA Amendments Act (ADAAA) was passed in 2008. The ADAAA expanded the definition of

disability to include impairments of manual tasks, walking, seeing, hearing, speaking, breathing, learning

and bending as well as impairments of the immune system, digestive, bowel, brain, respiratory,

circulatory, endocrine and reproductive functions.31

The passing of the ADA Amendments Act of 2008 (the "ADAAA")32, signaled congress's intent

that the definition of disability should be construed broadly. Prior to the ADAAA, the EEOC's

Interpretive Guidance included the statement that, "except in rare circumstances, obesity is not

considered a disabling impairment.”33 The EEOC has since removed that language.34 The

Americans with Disabilities Act Amendments Act (ADAAA) significantly expanded the

definition of "substantially limits" and "major life activities," increasing the likelihood that

morbid obesity or even obesity constitutes a disability under the ADAAA. 

30 ADA Amendments Act of 200831 Victoria Stern, The Murky Landscape of Weight Discrimination Law, General Surgery News, ISSUE: SEPTEMBER 2012 | VOLUME: 39:932 ADA Amendments Act of 200833 Suzanne E. Peters, Esq., Wait, Watch Her: Obesity as a Disability under the ADA, Employment Law Monthly December 201234 citing 29 C.F.R> pt. 1630 app. Section 1630.2(i); see also Section 902 Definition of the Term Disability, http://www.eeoc.gov/policydocs/902cm.html

DETERMINING THE TERMS “SUBSTANTIALLY LIMITS” AND “MAJOR LIFE

ACTIVITY”

The term “substantially limits” shall be construed broadly in favor of expansive coverage,

to the maximum extent permitted by the terms of the ADA35. “Substantially limits” is not

meant to be a demanding standard.36

Impairment is a disability within the meaning of this section if it substantially limits the

ability of an individual to perform a major life activity as compared to most people in the

general population. An impairment need not prevent, or significantly or severely restrict,

the individual from performing a major life activity in order to be considered

substantially limiting. Nonetheless, not every impairment will constitute a disability

within the meaning of this section.37

The primary object of attention in cases brought under the ADA should be whether

covered entities have complied with their obligations and whether discrimination has

occurred, not whether an individual's impairment substantially limits a major life activity.

Accordingly, the threshold issue of whether an impairment “substantially limits” a major

life activity should not demand extensive analysis.38

The determination of whether an impairment substantially limits a major life activity

requires an individualized assessment.39

35 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)36 citing 29 C.F.R> pt. 1630 app. Section 1630.2(i); see also Section 902 Definition of the Term Disability, http://www.eeoc.gov/policydocs/902cm.html37 citing 29 C.F.R> pt. 1630 app. Section 1630.2(h); see also Section 902 Definition of the Term Disability, http://www.eeoc.gov/policydocs/902cm.html38 citing 29 C.F.R> pt. 1630 app. Section 1630.2(i); see also Section 902 Definition of the Term Disability, http://www.eeoc.gov/policydocs/902cm.html39 http://www.law.cornell.edu/cfr/text/29/1630.2

 “The ADAAA instructs that ‘substantially limits’ is to be construed broadly and is not a

demanding standard. Now, the impairment need not prevent or significantly restrict a major life

activity to be considered substantially limiting, and the relevant comparison is to most people

and not those similarly situated.”40

“Additionally, the ADAAA expands the scope of “major life activities” to include the operation

of major bodily functions, and to include activities such as sitting, reaching, bending, and

lifting.  The addition of these activities may be relevant to a claim that obesity is a covered

impairment.”41

Regarded As-PERCEIVED DISABILITY

The Americans with Disabilities Act includes protection from individuals that have been discriminated when an entity (e.g. an employer) takes an action prohibited by the ADA based on an actual or perceived impairment.42 Under the "regarded as" prong of the ADAAA43, an employee must only show that the employer took an action because of its “belief” regarding the employee's impairment.  The employee does not have to “show” impairment that substantially limits a major life activity44. The ADA regulations provide that an individual is "regarded as disabled" if she: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments specified in the ADA subsection45, but is treated by an employer as having a substantially limiting impairment. Therefore, an individual will be "regarded as disabled" when others behave toward that individual as if she had a substantially limiting impairment, regardless of whether the individual actually has such an impairment.46

40 http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_the_ADA_/41 http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_the_ADA_/42 ADA Amendments Act of 200843 ADA Amendments Act of 200844 citing 29 C.F.R> pt. 1630 app. Section 1630.15(f)l45 29 C.F.R. § 1630.2(h)(1)-(3).46 See, e.g., Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995) (stating that

The "regarded as disabled" provision, which is derived from similar language in the ADA's precursor statute, the Rehabilitation Act of 1973,47 was intended by Congress to provide relief to individuals who are discriminated against because of the "myths, fears, and stereotypes associated with disabilities."48 “In short, the ‘regarded as disabled’ provision was designed as a safety net for the individual who, though not in fact disabled from performing a particular job, was nevertheless discriminated against based upon the erroneous assumptions of others about such individual's ability to perform that job.”49

“Of course, that does not mean that an employer's belief that an individual is unqualified for a

particular job because of a physical attribute or condition necessarily renders that individual

"handicapped," or that the employer's failure to hire that individual constitutes handicap

discrimination. The attribute or condition, as perceived by the employer, must be in the nature of

a mental or physical impairment substantially limiting the capacity to work.50 “Perceived

disability discrimination occurs when the employer treats the employee unfairly because the

employer believes the employee is disabled when he/she is not, has an unreasonable bias against

the perceived disability or medical condition or, without a proper basis, believes that the perceived

disability or medical condition may change for the worse in the future.”51

To an average employee, this is an area that can be obscure within the ADAAA52. There seems

to be no definitive ways of proving an action based on an employers perception unless the

employer admittedly volunteers the information. If obesity is not translucently stated as a

protection, it is very difficult to know when the protection is being violated.

the focus is on the impairment's effect upon the attitudes of others).47 29 U.S.C. § 706(8)(B).48 H.R. REP. No. 101-485(II), at 30-31 (1990), reprinted in 1990 U.S.C.C.A.N. 452,452-53; see also School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 (1987)("regarded as disabled" provision intended to combat the effects of "archaic attitudes,"erroneous perceptions, and myths that disadvantage persons with, or regarded as having,disabilities).49 Risa M. Mish, “Regarded As Disabled” Claims Under the ADA: Safety Net or Catch-All?”, https://www.law.upenn.edu/journals/jbl/articles/volume1/issue1/Mish1U.Pa.J.Lab.&Emp.L.159(1998).pdf50 American Motors Corp. v. Labor and Indus. Review Comm'n, 350 N.W.2d 120, 125 (Wis. 1984).51 http://www.schwartzandperry.com/lawyer-attorney-1269323.html52 ADA Amendments Act of 2008

For instance, if a person is 250lbs. or 500lbs, what are the parameters that outline what is considered as

“morbidly obese?” “The EEOC’s interpretive guidance53 states that being overweight, in and of itself,

generally is not an impairment but that “severe obesity, which has been defined as body weight more

than 100% over the norm, is clearly an impairment.”54 Terms such as “100% over the “norm” in addition

to others that I will mention, are areas that need to be explicitly ironed out, in order to offer clear

interpretation of the law for everyone.

Essential Functions and Reasonable Accommodations

If an employee or candidate can perform the essential functions of his or her job duties, no other factor should matter when retaining employees. The Equal Employment Opportunity Commission defines ‘essential functions’ as, “the basic job duties that an employee must be able to perform, with or without reasonable accommodation.”55 They further define reasonable accommodations as, “any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”56 It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business. Undue hardship means that the accommodation would require significant difficulty or expense.57

Analysis

The importance of being able to clearly define obesity discrimination under the ADA, is crucial in order

to protect businesses from suffering high financial consequences, as well as qualified personnel from

being disregarded as employable and well qualified employees.

53 citing 29 C.F.R> pt. 1630 app. Section 1630.2(i); see also Section 902 Definition of the Term Disability, http://www.eeoc.gov/policydocs/902cm.html54 http://www.hrhero.com/hl/articles/2012/04/26/obesity-big-ada-problem-for-employers/55 EEOC.gov56 EEOC.gov57 EEOC.gov

Let’s look at the first element of defining a disability and how ambiguous it can be when

determining whether or not obesity qualifies under the current definition. Under the changes

made by the ADAAA, a disability is having a physical or mental impairment that substantially

limits a major life activity; or a record of a physical or mental impairment that substantially

limited a major life activity; or when an entity (e.g.. an employer) takes an action prohibited by

the ADA based on an actual or perceived impairment.58 What are the remedies of action if an

employer terminates or fails to promote an obese employee that does not have an impairment

that limits a major activity? Have they not committed discrimination? Where are the protections

from an obese person that can perform his or her job duties but are not given the opportunity to

advance based on stereotypes of society?

The law should specifically state obesity as disability. Obesity should be protected because it

has no bearing on whether an applicant can fulfill the essential functions of a job. Also, if we

take a look at the elements discussed previously that defines disability and the medical issues

that obesity causes the human body, the qualification, in most instances, fit. “In addition to the

physical limitations associated with increased body weight, obesity is also associated with health

conditions such as hypertension, diabetes, heart disease and increased risk for certain types of

cancer.”59 It is without question that the morbidities associated with obesity can significantly

interfere with an individual’s ability to perform his or her job.60 “Unfortunately, while the

physical and health limitations brought on by obesity may be significant, the ADA itself does not

58 http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_the_ADA_/59 Larry Justice Jr., Is Obesity a Disability Under the ADA?, http://www.thestaffingstream.com/2012/10/23/is-obesity-a-disabilty-under-the-ada/60 Larry Justice Jr., Is Obesity a Disability Under the ADA?, http://www.thestaffingstream.com/2012/10/23/is-obesity-a-disabilty-under-the-ada

identify obesity as a disability.”61 However, in saying this, limitations does not mean the job

cannot be done, simply being overweight may only affect how the job is performed. The nature

of how the task may be completed does not necessarily make an overweight person unsuitable

for a position. In addition, the question of how obesity affects the body should have no bearing

on deciding if a person is qualified for a job.

Under the current statute, court rulings have been split when the issue of obesity discrimination

has been presented. The issues that have arisen are due to the current language of the statute

within the American with Disabilities Act and the implementation of the Americans with

Disabilities Act Amendments Act. The conflicting judgments are due to the fact that the ADA

does not specifically define when obesity is considered to be a disability. Previous to the

ADAAA, obesity was considered a disability only when an underlying physiologic disorder

existed and the obesity was not a result of voluntary actions.

As I delve into cases such as and Cook vs. State of Rhode Island Department of Mental Health62

it will discuss the stigma of how employers negatively perceive obesity as a factor in being

qualified for a job when it should not be. An employer in another case I will review, Greenberg

v. BellSouth Telecommunication Inc63 the employer made no attempt to provide for reasonable

accommodations, nor take into account the fact that the workers weight did not prevent him from

performing the essential functions of his job, yet because he was overweight; he was unjustly

terminated but was able to use the law to his advantage. The court rulings will further show why

some employers have prevailed under the law and others have conceded in terminating

61 Larry Justice Jr., Is Obesity a Disability Under the ADA?, http://www.thestaffingstream.com/2012/10/23/is-obesity-a-disabilty-under-the-ada62 Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993)63 Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1264-65 (11th Cir. 2007)

employees as a result of unclear guidelines interpreted by courts when determining the factors

that qualifies for protection from obesity discrimination within the Americans with Disabilities

Act64 and the Americans with Disabilities Act Amendments Act.65 As I will discuss further,

there are bona fide circumstances where placing weight restrictions on candidates and employees

are necessary in order to be qualified for a position such as demonstrated in the case of Hill v.

Verizon Maryland,66 however; there are justifications for those requirements. In Equal

Employment Opportunity Commission vs. BAE Systems, Inc.67 I will show how an employee was

terminated simply because he was overweight and the employer did not attempt to provide for

reasonable accommodations which are very necessary and should be considered in order to avoid

discrimination. The court reasoned that “in a society that all too often confuses ‘slim’ with

‘beautiful’ or ‘good,’ morbid obesity can present formidable barriers to employment” and, where

these “barriers transgress federal law, those who erect and seek to preserve them must suffer the

consequences.”68 Two cases brought about by the Equal Employment Opportunity Commission,

E.E.O.C vs. Watkins Motor Lines, Inc.,69and E.E.O.C. v. Texas Bus Lines70, shows how societies

perception towards obesity is so deep that it has effects on physicians who we would think would

know better, however; their medical evaluations were clouded by their discriminatory

conceptions.

Case Review “Perceived Disability/Regarded as” claims

64 ADA Amendments Act of 200865 ADA Amendments Act of 200866 Hill v. Verizon Maryland, Inc., 2009 WL 2060088 (D. Md. July 13, 2009)67 See Civil Action No.:11-cv-349768 Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993)69 463 F.3d 436, 440 -445 (6th Cir. ... 200670 EEOC v. Texas Bus Lines, 923 F.Supp. 965, 973-74 (S.D.Tex.1996)

One of the first cases to address discrimination based upon obesity was Cook vs.

State of Rhode Island Department of Mental Health.71 “The plaintiff, Bonnie Cook,

alleged that she was discriminated against by the defendant Rhode Island

Department of Mental Health, a federally funded institution, when her application

for employment as an institutional attendant at a facility for retarded persons was

denied because she was perceived as disabled due to her weight. Bonnie was a

former employee for The Department of Mental Health from 1978 to 1980. Cook

voluntarily resigned in 1981 and returned to her position for a five year period,

working continuously until 1986. Thereafter, the plaintiff again voluntarily left the

position for personal reasons. There was no negative history marks in her

employment file during her employment term before leaving. In 1988 Ms. Cook

applied for rehire within the same position she held before her resignation. At the

time of her application, she was 5 ft. 2 inches and over 320 pounds. All applicants

were required to undergo a routine pre-hiring physical examination. During this

examination, the company nurse came to the conclusion that even though Bonnie

was morbidly obese, she was physically fit to do the job. The physician reviewing

the pre-hire physical examination denied plaintiff the position. The Department of

Mental Health did not deny that the plaintiff's obesity was the only reason they

refused to hire Bonnie. The plaintiff contended that the defendant's failure to offer

her the job for which she applied, based solely upon her obesity, constituted

actionable discrimination under the Federal Rehabilitation Act of 198472 and under

two Rhode Island Statutes pertaining to disability discrimination. The plaintiff 71 Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993) (morbidly obese plaintiff can be considered disabled, and thus, entitled to protection from discrimination)72 29 u.s.c. § 794 (section 504)

alleged that the defendant's conduct constituted discrimination on the basis of a

"perceived disability," which the plaintiff argued was encompassed by Section 50473

protecting not only the disabled, but those who suffer from discrimination because

of a perceived disability. The jury specifically found that the plaintiff was capable

of performing the duties required of the position she had applied for and that the

defendant had discriminated against her in violation of Federal and State Statutes.74

Bonnie Cook prevailed because her employer refused to hire her solely due to her

obesity. The courts reasoning for their decision was that MHRH perceived her

obesity as a handicap, therefore; Cook would be an ‘individual with handicaps’

within the meaning of The Americans with Disabilities Act.75 In this case, the

employee prevailed, however; depending on a matter of interpretation of the terms

used by the Americans with Disabilities Act76; a different judge in a different court

room could have possibly ruled in favor of the defendant without obesity clearly

becoming a protected disability.

Case Review: “Reasonable Accommodations” claims

73 29 u.s.c. § 794 (section 504) 74 Cook v. State of Rhode Island, Dep’t of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993)75 See 29 U.S.C. § 794 (a) states No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from theparticipation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.76 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)

There has been a long history of loyal workers whom have been discharged from their employers

because of their weight. Even if weight is a factor in the way a person completes there job

duties, by mandating an obesity discrimination statue, employers will be forced to make

reasonable accommodations in order for obese individuals to be successful in their position in the

company without fear of being discriminated against. In Greenberg v. BellSouth

Telecommunication, Inc.,77 Allan A. Greenberg, formally employed with BellSouth was

terminated because of his weight. His job duties consisted of climbing ladders and using various

equipment for installing and maintaining telephone service for BellSouth’s’ customers. Because

of the nature of his job, there were mandatory weight limitations in place due to safety concerns.

Allan’s employer instructed him to lose 50 pounds in order for him to keep his job. After he was

unable to lose the weight or be assigned to another position within the company, Greenberg was

terminated. The court ruled in favor of BellSouth Communications. The court ruling was due to

the fact that “Greenberg had not established the required elements of a prima facie case of

disability discrimination under the ADA.”78

Cases such as this could possibly have a different outcome if Allan Greenberg had been

protected from obesity discrimination under clear guidelines through the ADA. Greenberg

“testified that he informed BellSouth that a stronger ladder could accommodate his weight.

When he requested that BellSouth purchase these ladders, however, he received no response.”79

Because Greenberg was not regarded as having a disability; reasonable accommodations were

77 Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1264-65 (11th Cir. 2007) 78 Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1264-65 (11th Cir. 2007) (plaintiff’s obesity was not an impairment that substantially limited a major life activity. Therefore, plaintiff was not disabled under the ADA).79 http://www.ca11.uscourts.gov/opinions/ops/200615134.pdf

not obligatory (regarding his request for a stronger ladder) therefore; the blatant disregard for the

request was not even examined and in turn, his weight resulted in his termination.

There are situations where mandating weight restrictions will be necessary in the workplace, this

however, does not exclude the fact that employers still need to provide for reasonable

accommodations. In the case of Hill v. Verizon Maryland,80 the plaintiff, Andy Hill claimed he

discriminated against because his of his weight. Hill was over the 275 pound weight limit

required for service technicians as similar to the Alan Greenberg case, however; this differs

slightly because of two concrete reasons that justified in Verizon ultimately not being able to

retain him in his position. First, unlike BellSouth, Andy Hill was given reasonable

accommodations when he exceeded weight limitations when Verizon supplied him with a heavy

duty ladder that could support his weight up to 325 pounds. Verizon specifically stated their

reason for establishing a maximum weight standard due to “Service Technicians must meet the

weight restriction to comply with OSHA/Company safety standards. They must follow

established safety practices and guidelines. The policies recognize the inherent danger in having

obese individuals work at heights, on equipment not designed to withstand their weight. Mr. Hill

would have posed a danger not only to himself, but to bystanders and pedestrians as well. His

inability to comply with those legitimate policies rendered him unable to perform an essential

function of his job even with reasonable accommodations.”81

Of course there will be justified circumstances where weight restrictions are necessary in order to

perform the essential functions of the job, (which was used as BellSouth’s reasoning for the

80 Hill v. Verizon Maryland, Inc., 2009 WL 2060088 (D. Md. July 13, 2009)81 Hill v. Verizon Maryland, Inc., No. RDB-07-3123, 2009 WL 2060088 at *2, 11 (D. Md. July 13, 2009)

termination, however; they made no effort to accommodate him beforehand) as demonstrated in

Hill v. Verizon Maryland, Inc.82, but having statues in place, will force employers to comply with

reasonable requests for accommodations that will not cause the business undue hardship prior to

terminating an overweight employee. If obesity was clearly recognized as a disability within the

American Disabilities Act83, this case would have had an opposite outcome as exampled in the

case of EEOC v. BAE Systems, Inc.84

In EEOC v. BAE Systems, Inc.,85 The plaintiff Ronald Kratz was an employee weighing over 600

pounds which job duties consisted of driving a forklift and material handling in BAE’s

manufacturing facility. The majority of his job Kratz was responsible for consisted of desk work

(90 percent), and a very small portion he was responsible for standing, and/or driving a forklift

(10 percent). Ronald Kratz was instructed to wear a seatbelt whenever he used the company

forklift, and due to his weight, he requested a seatbelt extender. The plaintiff did not receive the

extender; instead, he was terminated two weeks later because, according to BAE, “he could no

longer perform his job due to his weight.”86 The EEOC said, “The Company did not engage in

any discussion with him to determine whether reasonable accommodations were possible that

would have allowed him to continue to perform his duties. So long as an employee can perform

the essential job duties of a position, with or without reasonable accommodation, the employee

should be allowed to work on the same basis as any non-obese employee.”87  “Employers cannot 82 See. e.g., Hill v. Verizon Maryland, Inc., No. RDB-07-3123, 2009 WL 2060088 at *2, 11 (D. Md. July 13, 2009) (upholding employer’s policy that telephone pole service repair persons may not weigh more than 325 pounds to perform aerial work)83 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)

84 EEOC v. BAE Systems, Inc, U.S. Dist. Ct. S. D.. Tex. No. 4:11-cv-03497 (Sept. 27, 2011).

85 EEOC v. BAE Systems, Inc.,. Civil Action No. 4:11-cv-349786 See EEOC v. BAE Systems, Inc.,. Civil Action No. 4:11-cv-349787 EEOC v. BAE Systems, Inc.,. Civil Action No. 4:11-cv-3497

fire disabled employees based on perceptions and prejudice” said Kathy Boutchee, the EEOC’s 

senior trial attorney in Houston who was commenting on the outcome of the settlement.  The suit

was settled for $55,000 to be paid to Ronald Kratz along with outplacement services in addition

to other agreements.88 Although this was a financial victory for Kratz and the EEOC, it was not

a permanent solution. Ronald still did not recover his job back. Had obesity been clearly

included in the definition of “disabled” perhaps requests from employees weighing over the

average height and weight would be taken more seriously.

Pre-ADAAA Cases – Physiologic Cause

Previous to the ADAAA89, the Americans with Disabilities Act90 stated that morbid obesity may be an ADA impairment “where it has a physiological cause91,” and that non-physiological morbid obesity is not an “impairment92” under the ADA. An “impairment,” for purposes of the ADA93, is any “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of various body systems.”94

Pre-ADAAA; in the case of E.E.O.C vs. Watkins Motor Lines, Inc.,95Stephen Grindle was an overweight bus driver and dock worker for Watkins Motor Lines that was terminated because of what he believed to be his weight. While working on the job, he was involved in an injury that caused him to be out of work for a six month period. Prior to Stephen’s attempt to return to his duties, he received a doctor’s clearance for dull duty but was denied the return due to a list of demands that Watkins requested for his doctor to complete. Watkins employer in turn insisted that he would need to be examined by the companies’ physician prior to a full release back to

88 See http://www.eeoc.gov/eeoc/newsroom/release/7-24-12c.cfm89 ADA Amendments Act of 200890 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)9129 CFR 1630.2 (g)92 29 CFR 1630.2 (h) Physical or mental impairment means (1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

93 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990)94 29 C.F.R. 1630.2(h)(1).95 463 F.3d 436, 440 -445 (6th Cir. ... 2006

duty. The doctor that completed the exam notated that Stephen Grindle was over 400 lbs and regardless of the fact that he met the Department of Transportation standards for truck drivers, in his opinion, he could not perform his job safely. Grindle was eventually terminated. The district court found that “non-physiologically caused obesity is not an impairment under ADA.”96 The United States Court of Appeals agreed.

In contrast, E.E.O.C. v. Texas Bus Lines97, an employer’s perception that a former employee was

disabled by her morbid obesity was enough for the employee to win the discrimination suit,

without arguing a physiologic cause. Arazella Manuel was an applicant for Texas Bus Lines. As

required by DOT Regulations, Manuel had to pass a physical examination in order to drive the

passenger van for the company. Even though Arazella passed the road test, the medical

examiner disqualified her from receiving a clearance certificate because he noticed her having a

slight waddle as she rose from her chair preparing for her exam. The doctor noted the reason for

his rejection was Ms. Manual would not be able to move around fast enough if there were to be

an accident on the van. Texas Bus Lines consequently, disqualified her from employment. The

Court noted that, “although an individual may have an impairment that does not in fact

substantially limit a major life activity, the reaction of others may prove just as disabling.

"Such an impairment might not diminish a person's physical or mental capacities, but

nevertheless substantially limits that person's ability to work as a result of the negative

reactions of others to the impairment."98

The need for protection from obesity discrimination and the ambiguity surrounding its coverage

will become more crucial as society progresses in North America.

Recommendations96 29 C.F.R. 1630.2(h)(1).97 EEOC v. Texas Bus Lines, 923 F.Supp. 965, 973-74 (S.D.Tex.1996)98 Arline, 480 U.S. at 283, 107 S.Ct. at 1128-29

How do we know who is protected under the ADA and/or ADAAA under the current statute?

“Employers should be careful not to make assumptions about obese individuals' ability to do a

job. Managers and supervisors should not convey to obese applicants or employees any belief

that the individual cannot perform the essential functions of the job held or sought or that the

individual presents a safety risk. Moreover, supervisors and managers should not make any

comments suggesting to applicants or employees any belief that the employee's weight is an

impairment. Further, employers should not automatically reject accommodation requests from

morbidly obese or obese employees.”99

Recommendations

Employers should be forced to provide accommodations for overweight employees if we are

to treat obesity as a disability. Simple accommodations to protecting the rights of an obese

individual can be something as little as purchasing a seat belt extender or buying a heavy duty

ladder. “A reasonable accommodation is a modification of the conditions under which a

particular job must be performed so as to permit a handicapped person to perform it despite

that person's handicap.”100

In order to minimize the high financial impact that obesity discrimination can have on businesses

as well as employees, the ADA should be further amended using the guidelines set forth in the

Supreme Court case decision in BNSF Railway Company v. Feit.101 This case examined in detail,

99 Myra Creighton, JD, Is Obesity an Impairment Under the Americans with Disabilities Act?, Beckers Hospital Review Business and Legal Issues for Health System Leadership, December 20, 2012, http://www.beckershospitalreview.com/hospital-management-administration/is-obesity-an-impairment-under-the-americans-with-disabilities-act.html100 See Bento, 599 F. Supp at 745.101 BNSF RY. CO. v. FEIT. 281 P.3d 225 (2012). 2012 MT 147

the statute set forth in the Americans with Disabilities Act, the Americans with Disabilities Act

Amendments Act, and the Equal Employment Opportunity Commission regulations and

interpretive guidelines, in order to come to the conclusion that obesity qualifies as a disability.

The facts of the case are as followed:

BNSF offered an applicant by the name of Eric Feit an offer of employment conditional upon a

successful completion of a physical, drug test, background check, I-9 documentation, and the

company’s medical questionnaire. BNSF thereafter informed Feit he wasn’t qualified for the

position as an conductor trainee due to health and safety risks that are associated with obesity.

The company also told Eric Feit that he would no longer be considered for the position until he

did one of two things, lost 10% body weight or passed a physical exam in which he must pay for

himself. Feit did in fact pass his self funded exam with one exception, he did not complete a

sleep test which was part of the testing because of the high cost associated with the procedure.

Eric was then faced with the second option of losing 10% body weight since he could not pay for

the $1800.00 sleep test. Feit filed a discrimination charge against BNSF for perceived disability

discrimination because of his obesity. The case went through the Department of Labor, Montana

Human Rights Commission, and U.S. District Court and all three opinions were in favor of Eric

Feit in accordance to the “regarded as”102 factor in accordance with the Americans with

Disabilities Act Amendments Act.103

Following are the criterion the District Court used in determining whether or not obesity should

be covered according to the guidelines set forth in the Americans with Disabilities and the

102 29 C.F.R. § 1630.2(h)(1)-(3).103 ADA Amendments Act of 2008

Americans with Disabilities Act Amendments Act in order to clear up the ambiguity. It is in my

opinion, future decisions on this issue should follow suit when deciding on obesity

discrimination.

“In BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012), in a four-to-one decision, the

Montana Supreme Court held that obesity is an impairment that can qualify as a protected

disability under the Montana Human Rights Act (MHRA), state laws that parallel the ADA, even

if it is not symptomatic of a physiological disorder - that is, even if the obesity is self-imposed,

rather than weight gain caused by an underlying medical condition.”104

“The Montana Supreme Court in Feit relied on the ADA Amendments Act of 2008 (ADAAA)

and the EEOC's interpretive guidelines, revised since then, to find that obesity is an impairment

and can be a protected disability under the MHRA, even if it is not a symptom of a physiological

disorder. The ADA defines a "disability" as a "physical or mental impairment that substantially

limits one or more of a person's major life activities." The EEOC's guidelines define

"impairment" to include "[a]ny physiological disorder or condition . . . affecting one or more

body systems . . . "See 29 C.F.R. §1630.2(h)(1) (2011). The ADAAA does not expand either of

those definitions, but it does chastise the federal courts for being too restrictive in deciding who

is and who is not disabled. It also expressly states that, as matter of public policy and

Congressional intent, "the definition of disability . . . shall be construed in favor of broad

coverage . . . to the maximum extent permitted" by law.”105

104 David Farren, Obesity in the Workplace, October 25, 2012, http://www.law.suffolk.edu/library/research/bluebook/electronic.cfm105 David Farren, Obesity in the Workplace, October 25, 2012, http://www.law.suffolk.edu/library/research/bluebook/electronic.cfm

“Thus, the ADAAA has spurred the EEOC to rewrite its guidelines and policies to pronounce, or

at least to suggest, that one's weight, if excessive, is or can be a physical impairment that

qualifies as a protected disability, even if it is not symptomatic of a physiological disorder. See

29 C.F.R. pt. 1630 app. §1630.2(h) (2011). The EEOC's Compliance Manual, used by courts to

gain helpful insight into the agency's interpretations of the law, states that "being overweight, in

and of itself," is generally not an impairment, but that "severe obesity, which has been defined as

body weight more than 100% over the norm . . . is clearly an impairment." EEOC Compliance

Manual §902.2(c)(5)(ii). Moreover, although the distinction between self-imposed obesity and

obesity that is caused by a physiological disorder has often been drawn as a means to segregate

persons who can be "blamed" for their condition from those who can't, the EEOC has always

taken the position that "[t]he cause of a condition has no effect on whether that condition is an

impairment" under the ADA. See EEOC Compliance Manual §902.2(e). In theory, then, obesity

should be treated no differently from physical impairments caused by smoking.”106

“While it remains unclear whether the ADAAA includes obesity as a disabling impairment, an

employer must use caution when imposing weight restrictions as a condition of employment. 

Weight requirements should be:

• Directly related to the essential functions of the job, and

• Required to ensure that the employees safely perform their jobs without endangering

themselves or others.”107

106 David Farren, Obesity in the Workplace, October 25, 2012, http://www.law.suffolk.edu/library/research/bluebook/electronic.cfm107 Julie Ungerman and Jennifer Jones, Will the Imposition of weight restrictions in the workplace present a hefty problem for employers under the ADA?, Thomas Reuters News and Insight, 9/12/2012, http://newsandinsight.thomsonreuters.com/Legal/Insight/2012/09_-_September/Will_the_imposition_of_weight_restrictions_in_the_workplace_present_a_hefty_problem_for_employers_under_the_ADA_/