This question is a summer-vacation inspired twist on Revolinski v. Amtrak, an obesity-based disability discrimination case that was decided on May 24, 2011 – the same day the Equal Employment Opportunity Commission (EEOC) regulations under the Americans with Disabilities Act Amendments Act (ADAAA) went into effect. 2011 WL 2037015 (E.D. Wis. May 24, 2011). In Revolinski, an employee’s application for continued employment as an assistant conductor was denied, due in part to his noncompliance with Amtrak uniform standards. Revolinski was unable to wear the uniform because of his weight, which was in the range of “morbid obesity” (defined as weight more than 100 pounds or double an individual’s optimum weight).

Because Revolinski’s claim under the Americans with Disabilities Act (ADA) was time-barred, the court considered only his disability discrimination claim under the Rehabilitation Act (the statute prohibiting federal employers from discriminating on the basis of disability). Courts frequently rely on ADA analyses when deciding claims under the Rehabilitation Act because of the statutes’ similar prima facie requirements. Using pre-ADAAA statutes and regulations (the ADAAA was not retroactive prior to its Jan. 1, 2009 effective date) the court determined that Revolinski’s obesity was not a disability under the Rehabilitation Act and awarded summary judgment for Amtrak. Due to the recent changes in disability discrimination law, though, it’s quite possible that a court would find differently if deciding whether the employer’s refusal to hire the employee in the above scenario was impermissible under the ADA. For example, a Mississippi federal court relied on the ADAAA to deny an employer’s motion to dismiss an obesity-based disability discrimination and hostile work environment claim by its former employee. Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010).

The ADA prohibits employment discrimination “against a qualified individual on the basis of disability.” See 42 U.S.C. 12112(a). An individual has a disability when she or he (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. See 42 U.S.C. 12102(1). Failure to provide reasonable accommodation to a qualified individual with a known disability is discrimination, unless the accommodation would impose an undue hardship on business operations. See 42 U.S.C. 12111 (8)-(10). The ADAAA and its implementing regulations made five key changes that expand coverage under the ADA: (1) an expanded definition of “major life activity;” (2) an expanded construction of “substantially limits;” (3) an expanded definition of “disability” that includes temporary and episodic conditions, as well as conditions in remission; (4) a list of impairments that will be considered disabilities in “virtually all cases;” and (5) an expanded definition of “regarded as disabled.”

Revolinski, like a number of other cases decided using pre-ADAAA law, held that obesity was not a disability under the ADA unless the obesity substantially limited a major life activity or was the result of an underlying medical condition. The court held that while Revolinski claimed his obesity limited some major life activities, including breathing, walking, climbing stairs, and working, Revolinski did not demonstrate that he was significantly limited in these activities compared to the general population. Therefore, the court held that he was not substantially limited in these or other major life activities.

The ADAAA regulations’ nine rules of construction of the term “substantially limits,” however, could be game changing to a court’s analysis of whether obesity is a disability under the ADA. See 29 C.F.R. § 1630.2(j)(1)(i)-(ix). These rules instruct, among other things: that “substantially limits” is to be construed broadly and is not a demanding standard; that the relevant comparison is to most people, not those similarly situated to the individual requesting the accommodation; the impairment need not prevent or severely restrict a major life activity (although not every impairment is a disability); and that the primary question is a whether discrimination occurred, not whether an impairment substantially limits a major life activity. Based on these changes to the analysis of “substantially limits,” a court could find that obesity is a covered impairment under the ADA, regardless of whether it is due to a medical disorder.

The ADAAA regulations state that physical “characteristics,” including height, muscle tone, and weight that are within the “normal range” and are not the result of a physiological disorder are not covered impairments. 29 C.F.R. 1630 App. § 1630.2(h). The regulations, however, do not speak to the classification of these characteristics when they are outside the normal range, leaving open the possibility that a court would find severe obesity (or perhaps even a lesser degree of obesity) a covered impairment.

In addition, there are several areas of the regulations’ expanded definitions that may be relevant for a claim that obesity is a covered impairment. The regulations added sitting, reaching, bending, and lifting to the list of “major life activities.” See 29 C.F.R. § 1630.2(i)(1)(i). Each of these activities could be substantially limited by obesity. The regulations also added “major bodily functions” as major life activities. Id. § 1630.2(i)(1)(ii). The functioning of an individual’s skin, cardiovascular, endocrine, and musculoskeletal systems are some of the listed major bodily functions that may be affected by obesity.

The Revolinski court also rejected the plaintiff’s claim that he was unlawfully discriminated against because his employer regarded him as disabled. This decision, the court explained, was because Revolinski had not presented information showing that Amtrak believed he had an impairment that substantially limited one or more major life activities, as was necessary for a successful claim under the “regarded as” prong of the definition. Under the new regulations, though, an employee does not have to show that the impairment the employer bases its action upon is an impairment that substantially limits a major life activity, only that the employer took the employment action due to its belief regarding the employee’s impairment. As a result, if an employee is perceived as limited because of her weight, the employer may have regarded her as disabled even if obesity is not a covered impairment.

The EEOC has asserted that obesity is a disability under the ADA. In September, 2010 the EEOC brought a claim alleging that an employer had engaged in discriminatory conduct in violation of the ADA. EEOC v. Resources for Human Development, Inc., No. 2:10-cv-03322-ILRL-JCW (E.D. La. Sept. 30, 2010). The complaint states that the employee, who is now deceased, suffered from “severe obesity, which is a physical impairment within the meaning of the ADA” and which the employer regarded as such an impairment. The employee worked with young children whose parents were undergoing treatment for addiction and was, according to the EEOC, able to perform the essential functions of her position at all times.

There hasn’t been a ruling in the case, but based on the new law, the result may be different than the EEOC’s pre-ADAAA obesity-based claim against an employer for impermissible disability discrimination. In EEOC v. Watkins, the EEOC argued that a 405-pound employee had an actual impairment of morbid obesity that was erroneously regarded by his employer as limiting his ability to perform his job. 463 F.3d 436 (6th Cir. 2006). The court explained that for a plaintiff to successfully bring a “regarded as” claim under the ADA, the employee must allege to have been perceived to have an impairment protected under the ADA. The court held that obesity, even morbid obesity, is not a covered impairment unless it has a physiological cause. The regulations’ changes to requirements for “regarded as” claims, however, mean that a court may find differently in Resources for Human Development.

Even if a court found that obesity is not a covered impairment, there are still a number of ways in which an employer’s actions in response to an employee’s weight or request for accommodations related to his or her obesity could result in ADA violations.

First, it’s possible that an employee could receive obesity-related medical treatment that causes an employee to suffer from a covered impairment. Prior to the ADAAA regulations, several U.S. Courts of Appeal had noted that the detrimental side effects of treatment could result in a covered impairment if the treatment is required in the “prudent judgment of the medical profession” and there is not an available alternative that is equally effective without similarly disabling side effects. See e.g., Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 187 (3d Cir. 2010). The ADAAA regulations, however, go a step further, stating “any negative (non-ameliorative) effects of mitigating measures used determine whether an impairment is substantially limiting.” 29 C.F.R. 1630 App. § 1630.2(j)(1)(vi).

Second, an employee could claim that her employer refused to hire her because it regarded her as disabled due to her obesity. Under the ADAAA regulations, however, an employee no longer must prove that she is actually disabled under the ADA to proceed under the “regarded as” prong of the definition. 29 C.F.R. 1630.2(l). An employee is regarded as having an impairment if the employee is “subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to substantially limit, a major life activity.” Therefore, an employee who is obese may bring a successful “regarded as” claim if her employer takes prohibited action based on its belief that her weight is an an impairment.

Third, an employer may engage in prohibited retaliation if it takes adverse employment action against an employee in response to the employee’s request for accommodation. Unlike a claim of discrimination, a claim of retaliation does not require that the plaintiff demonstrate a disability within the meaning of the ADA. An individual claiming retaliation under the ADA must only show that she had a “reasonable, good faith belief that [s]he was entitled to request the reasonable accommodation he requested.” Sulima, 602 F.3d at 188.

Before determining how to proceed, an employer in a situation like the resort scenario above should carefully consider the essential functions of its position. While an employer has a right to control the appearance of its employees, there is a competing policy of providing protection for genuinely capable individuals who face discrimination in employment because of stereotypes regarding their disabilities. If a weight requirement for employees is directly related to the essential requirements of the job, then an employer may impose that requirement. See Hill v. Verizon Maryland, Inc., 2009 WL 2060088 (D. Md. July 13, 2009) (upholding employer policy that telephone pole service repair persons may not perform pole service using regular ladders if they weigh more than 275 pounds or using a heavy-duty ladders if they weigh more than 325 pounds).

If a requested accommodation does not affect an employee’s ability to perform the essential functions of the position, employers would be well-advised to shift their focus to the interactive process of providing a reasonable accommodation. If an employee comes forward seeking a workplace change based on a medical condition – the employee does not need to use the words “disability” or “accommodation” – the employer should participate in the accommodation process.

In this resort scenario, the essential functions of the position are most likely taking orders for and serving food and beverages, while providing high-quality customer service. While it is a legitimate business concern to have a way for guests to quickly determine who is on staff in order to provide prompt service, it seems likely that there are ways to accomplish this goal with the returning employee. Reasonable accommodations in this scenario could be finding another uniform supplier that offers larger sizes, purchasing custom-made uniforms for the employee, or allowing the employee to substitute similar clothing for the uniform. To refuse to hire the individual without even exploring these possibilities risks taking action based on the employer’s perception of the employee’s limitations rather than what the employee could do with accommodation – the precise type of employer behavior the ADA is intended to limit.