Employers often call with questions about the Americans with Disabilities Act (ADA) as they navigate when and how to make reasonable accommodations for employees with known disabilities. Most are generally familiar with the ADA’s prohibition of discrimination against a “qualified individual”—an individual who can perform the essential functions of the position with or without a reasonable accommodation. A murkier situation arises, however, when an employee alleges discrimination not due to a disability, but for being “regarded as” disabled.

The ADA provides that “[a]n individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under the 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.”

Although the statute does not define “impairment,” the regulations define it as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.” So, when does an employer face liability for perceiving an impairment? Two cases, factually similar but a decade apart, may shed some light. The Sixth Circuit held in 2006 that to prevail on an ADA “regarded as” claim, the plaintiff must show that the employer perceived an impairment protected under the ADA. In Equal Employment Opportunity Commission v. Watkins Motor Lines, Incorporated, the plaintiff claimed that his employer viewed him as disabled because he was overweight, and it terminated his employment as a result. The District Court and the Sixth Circuit both reasoned that because the plaintiff failed to identify any underlying physiological disorder causing him to be overweight, he could not establish that he was regarded as impaired. This holding is consistent with the EEOC’s guidance that an ADA-protected impairment “does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.”

Last month, a panel of Eighth Circuit judges heard oral argument in an ADA case where the plaintiff alleged that an employer failed to hire him because it regarded his weight as an impairment. Morriss v. BNSF Railway Co. The District Court granted summary judgment to the employer for the same reason as in Watkins—Mr. Morriss failed to link his obesity to any underlying physiological disorder. When pressed on oral argument why Morriss warranted a different outcome than Watkins (click here to listen to the recording of the Morriss oral argument), plaintiff’s counsel and the EEOC as amicus argued that the 2008 amendments to the ADA indicated that “the definition of disability…shall be construed in favor of broad coverage.” This argument is unlikely to carry the day for Mr. Morriss; as one of the panel judges pointed out during oral argument, the ADA amendments “address a different subject. They don’t even touch on this issue.”

Stay tuned for the Eighth Circuit’s ruling. The panel’s tone at oral argument suggests that the court will rule consistently with Watkins that general obesity, without more, does not warrant ADA protection. As the Sixth Circuit noted in Watkins, courts have expressed concern about broadening “ADA protection to all ‘abnormal’ (whatever that term may mean) physical characteristics.” If the Eighth Circuit extends protection for “regarded as” claims, however, employers will need to take a fresh look at how they handle potential disability issues as to current and prospective employees.