A case currently pending before the U.S. Court of Appeals for the Eighth Circuit will address whether the protections of the Americans with Disabilities Act (ADA) should extend to obese workers. With more than two-thirds of adults in the United States considered overweight or obese, recognition of obesity as a disability — defined as physical or mental impairment that substantially limits one or more major life activities — will result in accommodations and protections in unprecedented numbers.

In January 2013, Melvin Morriss III filed suit in U.S. District Court for the District of Nebraska against BNSF Railway Co. He alleged that BNSF rescinded its conditional offer of employment, claiming that he was not qualified “due to significant health and safety risks associated with Class 3 obesity.” Morris claimed that the decision to rescind the offer constituted discrimination, based on an actual or perceived disability, in violation of the Nebraska Fair Employment Practices Act and the ADA, which protects individuals who are disabled, regarded as being disabled, or have a record of being disabled. In November 2014, the District Court granted the employer’s motion for summary judgment on the grounds that “[t]here is no evidence that Morriss’s obesity was caused by a physiological disorder, nor is there any evidence that his weight affected one or more body systems” … “or that it substantially limited one or more major life activities” and thus, “his claim of discrimination based on actual disability necessarily fails.” The court likewise concluded that there was no evidence that he was perceived as disabled. Instead, the court determined that the offer was rescinded not because of any current health risk but because of the belief that he could develop such health risks in the future. In December 2014, Morriss appealed the judgment to the Eighth Circuit.

There has been significant litigation over what meets the ADA’s definition of disability since its enactment in 1990, with consensus among federal and some state courts seeming to be that obesity is at least an impairment under the ADA. In 1993, the First Circuit held that obesity could constitute a perceived disability if the employer based its decision on the belief that an employee’s weight substantially limited the employee’s ability to work. In 1996, the Southern District of Texas found an employee to be regarded as disabled due to her severe obesity, without introducing evidence of any physiological condition. In 2010, the Northern District of Mississippi held that obesity could constitute an impairment even if it is not causally linked to a disorder. In 2011, the Eastern District of Louisiana found that obesity could constitute an impairment. In so deciding, it recognized that neither the Equal Opportunity Employment Commission (EEOC) nor any other court “ever required a disabled party prove the underlying basis of [his] impairment” and “[t]he cause of a condition has no effect on whether the condition is an impairment.” In 2012, the Montana Supreme Court determined that a job applicant’s obesity constitutes a disability because his weight was outside the normal range and it affected one or more body systems.

These decisions are consistent with the changing tides in the medical community and abroad. In 2013, the American Medical Association joined the World Health Organization, the U.S. Food and Drug Administration and the National Institutes of Health in classifying obesity a disease. And, in December 2014, while finding that obesity is not in and of itself a disability, the European  Court of Justice, the EU’s highest court, held that if obesity hinders “full and effective participation” at work, then it could constitute a disability.

The Second and Sixth Circuits have had contrary holdings. However, those decisions were issued before amendments to the ADA in 2008 made it easier for people with disabilities to obtain protection. Since those amendments, Morriss seems to be one of only a few federal cases to hold that obesity is not an impairment under the ADA.

The EEOC and AARP filed amicus briefs in support of Morriss’s position. Conversely, the Chamber of Commerce of the United States filed an amicus brief in support of BNSF. If obesity is determined to constitute a disability, the Chamber of Commerce worries that employers would be exposed to a significant increase in claims of disability discrimination and they could become overwhelmed with accommodation requests, “diverting time and resources from the needs of individuals with impairments that, without question, do fall within the ADA’s purview.”

No doubt, if obesity is determined to be an impairment under the ADA, employers could be exposed to claims of discrimination and harassment on that basis, and almost 70 percent of U.S. adults could potentially seek ADA protections. However, the more likely and complicated result will be the need to provide reasonable accommodations to obese employees. Such accommodations could potentially include wider seats, larger tables, specially made uniforms, additional handicapped parking, more frequent breaks, a seatbelt extender for vehicles or equipment, and limiting or making changes to tasks that require certain levels of physical exertion, such as climbing stairs, walking long distances, and lifting or carrying. Accordingly, a decision in this case, and others like it, has the potential to greatly impact employers and their day-to-day operations. Employers with ill-equipped managers and outdated handbooks, training manuals, and policies will face liability from scores of employees.

The Eighth Circuit is not likely to hear argument until late fall 2015 or early spring 2016. We will then have to wait for the decision. In the meantime, for more information on this case or the status of obese workers in your state, please contact:

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.