Between 25% and 30% of all adults in New Mexico are obese.1 With such a significant percentage of New Mexicans being affected by obesity, employers are increasingly faced with issues regarding whether or not they must accommodate employees for impairments relating to their weight and whether obesity itself qualifies as a disability under the Americans with Disabilities Act (“ADA”). The ADA makes it unlawful for a covered employer to discriminate against any “qualified individual on the basis of disability”.2 The purpose of this article is to explain the current state of the law affecting New Mexico employers who are faced with employees claiming obesity as a disability.

The ADA defines the term "disability" to mean any of the following: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C)  being  regarded  as  having  such  an  impairment. Although the Tenth Circuit Court of Appeals (which sets precedent with respect to New Mexico federal cases) has not directly addressed whether obesity itself qualifies as a disability in any published decision, it has indicated that it is not discriminatory for an employer to reassign an employee to a lower paying position where the employee failed an annual fitness exam due to obesity and diabetes because the job’s physical fitness requirements were job- related, uniformly enforced and necessary for safe operation of the facility.3 Earlier this month, however, another Circuit Court provided guidance on whether obesity qualifies as a disability under the ADA.

On April 5, 2016, the United States Court of Appeals for the Eighth Circuit, in Morriss v. BNSF Railway Company 4, issued an  opinion determining that  obesity was not a covered condition under the Americans with Disabilities Act. The Court ruled that obesity only qualifies as a protected category if it is both abnormal and caused by an underlying condition such as cardiac disease, sleep apnea, hypertension or diabetes.

The Plaintiff applicant in Morriss alleged that he passed all the required tests to earn a position as a machinist, but that BNSF revoked its conditional job offer after Plaintiff underwent a required medical review which revealed that he was obese. Plaintiff was five feet ten inches tall, weighed between 281 and 285 pounds and had a body mass index just above 40. BNSF’s company policy was not to hire anyone with a BMI of 40 or greater for positions that were “safety sensitive” due to the risk that the worker might develop impairments in the future. The applicant sued under the ADA, seeking protection on the basis of having an actual disability and on the basis of his obesity being regarded as a disability. Plaintiff failed on both theories, however, because he could not show that his obesity was a threshold “physical impairment,” or that BNSF regarded him as having a physical impairment.

The Eighth Circuit determined that BNSF had the right to deny employment to the otherwise qualified obese job applicant because his weight was not the result of another physiological impairment. Based on the EEOC’s regulations, the Court stated that “obesity is not a physical impairment unless it is a physiological disorder or condition and it affects a major body system.” The Court also noted that the EEOC’s interpretive guidance on the ADA indicates that impairments do not include physical characteristics, including weight, that are both within the normal range and not the result of a physiological disorder. The Eighth Circuit stated “[a]n individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder.” The Court explained that “[b]oth requirements must be satisfied before a physical impairment can be found. In other words, even weight outside the normal range — no matter how far outside that range — must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.”

Plaintiff attempted to rebut the argument that his obesity was simply a physical characteristic by claiming that his obesity, in and of itself, is a physical impairment because it has been labeled as “severe”, “morbid” or “Class III” obesity. Plaintiff also argued that he should be given ADA protections because BNSF perceived him as having a physical impairment. The Court rejected these arguments and determined that the ADA only applies to current physical impairments, and that the denial of employment based on the finding that someone was likely to develop impairments in the future was permitted under the law.

While we do not have direct published guidance on how this issue would be decided by the Court of Appeals for the Tenth Circuit or by New Mexico Courts, the Morriss case suggests that obesity alone does not provide protection under the ADA. It is important for employers to note, however, that the Eighth Circuit’s decision does not mean that obesity can never be a disability.  Rather, if an employee’s obesity is a result of another physiological impairment, an obese employee may be found to have a “disability” and accommodations may need to be considered. Thus, an employer should always be cautious when dealing with obesity and employment decisions and should be aware that a more detailed analysis of an employee’s condition may be necessary. It should also be noted that the EEOC filed an amicus brief on behalf of the Plaintiff in this matter and took the position that after the enactment of the ADA Amendments Acts of 2008, EEOC guidance should be read to mean that to prove an impairment, an employee is only required to show an underlying physiological disorder if his weight is within “normal” range. Accordingly, an employer needs to remember that the law is always changing and that this issue will likely continue to be highly contested.