off therecord

“Ebeltoft Sickler provides Jerome Distributing with practical advice when it comes to our needs, goals and objectives. Jerome Distributing relies on Ebeltoft Sickler for a solution to legal matters by understanding our business, the way we operate, and changes in our industry.”

Arthur Jerome, Vice-President,
Jerome Distributing, Inc.

2017

2016

2015

2014

2013

2012

2011

2010

Mar 14, 2016

Is Obesity a Qualifying Disability under the ADA?

By: Allison Mann

This is the question currently before the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co. This decision will be directly binding on the Federal Court for the District of North Dakota.

Melvin A. Morriss sought a job at BNSF as a machinist. He received a conditional offer of employment, but was required to complete a health assessment. At that assessment, the physician determined that Mr. Morriss was 5’10” and weighed 285 pounds, which means he has a BMI of 40.9. The CDC considers anyone with a BMI of over 30 to be obese. After this examination, BNSF revoked its offer of employment, stating that Morriss was “Not currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity (Body Mass Index of 40 or greater).”

Mr. Morriss subsequently brought suit under Title I of the Americans with Disabilities Act (ADA) and Nebraska state law, claiming first, that he was actually disabled under the act, and second, that BNSF regarded him as disabled.

ADA Standards

The ADA definition of disability is three pronged: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such impairment, or (3) being regarded as having such an impairment. It was amended in 2008 to clarify and expand the statute’s reach. First, the amendment explained that the term “substantially limits” should be broadly construed by courts. Second, it indicated that a “regarded as” disability covers physiological disorders even where those disorders do not cause any functional impairment.

The EEOC offers guidance on what is considered a physical impairment: “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.” It goes on to state that an impairment “does not include characteristic predisposition to illness or disease.”

A handful of courts have previously determined the issue, but the majority of the circuits have held that obesity itself, even morbid obesity, must be the result of an underlying physiological condition in order to be considered an impairment under the ADA.

The Federal District Court

Consistent with the majority position, Judge Kopf of the United States District Court for the District of Nebraska held that obesity itself is not a disability under the ADA. In other words, Morriss either needed to show that his obesity was caused by a physiological disorder or that it negatively affected one of his body systems. When asked to provide such evidence, Morriss was unable—his obesity was not caused by any disease and it did not limit him physically. In addition, Morriss was unable to provide evidence that BNSF refused to hire him because BNSF regarded him as having a current health risk.

Morriss has since appealed the District Court decision and both parties have submitted their briefs to the Eighth Circuit for consideration. Other groups have also shown significant interest. The EEOC and AARP have each submitted a brief in support of Morriss, while the Equal Employment Advisory Council, the U.S. Chamber of Commerce, and the National Federation of Independent Business have all joined in one brief in support of BNSF.

The Takeaway:

One commentator predicts that if the Eighth Circuit categorizes obesity as a disability it will wrongly extend ADA protection to all physical attributes and characteristics than an employer may find undesirable or unattractive, and, as a result, it will leave every employment decision open to second-guessing based on a physical attribute that may be considered “abnormal.”

While the consequences of the decision may not be quite so dramatic, extending ADA coverage to obese individuals will impact employers subject to the ADA (any employer with more than 15 employees). Proactive employers should be ready to react to the decision the Eighth Circuit, whatever the outcome. What this means is that employers should monitor this litigation, and if the need arises, will have to offer reasonable accommodations to otherwise qualified candidates that are not able to perform essential job duties because of their obesity.

Stay tuned.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)


I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the March, 2016 Southwest Area Human Resource Association newsletter.