The nation’s highest Court began its new term on Monday, October 3, 2016 by, among other things, declining to review the Eighth Circuit’s ruling that an obese applicant did not have an actual or “regarded as” disability under the Americans with Disabilities Act (“ADA”). The Court’s decision ends a hotly contested battle which saw “friend of the court” briefs filed by the EEOC, the US Chamber of Commerce, AARP, the Equal Employment Advisory Council, and the National Federation of Independent Business Small Business Legal Center.

In 2011, BNSF Railway Co. (“BNSF”) extended a conditional offer of employment for a Machinist position to Melvin A. Morriss III. The offer of employment was contingent upon a satisfactory medical review. After Mr. Morriss’ medical review, BNSF rescinded the conditional offer of employment noting that Mr. Morriss was “[n]ot qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).” BNSF’s policy was not to hire applicants for safety-sensitive positions if their BMI equaled or exceeded 40.

Mr. Morriss sued BNSF for disability discrimination claiming his obesity was an actual ADA disability and BNSF regarded him as disabled. BNSF argued it did not discriminate against Mr. Morriss since “obesity did not meet the definition of a disability under the ADA because it was not a ‘physical impairment.’” A Nebraska district court granted BNSF summary judgment.

On appeal, the Eighth Circuit affirmed the district court’s decision holding “for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition.” Rejecting the “regarded as” claim, the Court reasoned, “[t]he ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.” The Eighth Circuit’s decision is available here Morriss v. BNSF Railway Company, Case No. 14-3858 (8th Cir. Apr. 5, 2016).

In his petition seeking the Supreme Court’s review, Mr. Morriss argued that the split in the circuits regarding whether obesity is an ADA covered disability made “resolution of this issue [] of great importance.” The Supreme Court nevertheless declined to review the case. The Sixth Circuit and the Second Circuit have both held that obesity (even morbid obesity), must be the result of a physiological condition to constitute a covered disability under the ADA. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); and, Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). However, an Eastern District of Louisiana court held “a physiological cause for obesity is required only when an ADA disability-discrimination claimant’s weight is within the normal range.” EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D.La. 2011).