By Kimberly A. Ross,Firm: Ford Harrison
In a recent ruling the US Seventh Circuit Court of Appeals held that obesity alone is not an ‘impairment’ under the Americans with Disabilities Act, unless there is an underlying physiological cause for it.
On 12 June 2019, the Seventh Circuit Court of Appeals issued its ruling in the case of Richardson v. Chicago Transit Authority, which was the appeal of a dismissal of the case after the lower court found that obesity is not an impairment under the Americans with Disabilities Act (ADA) where there is no underlying physiological cause. This is the first time the Seventh Circuit (the federal appeals court with jurisdiction over Illinois, Indiana, and Wisconsin) has ruled on the issue. The court agreed with prior decisions in the Second, Sixth, and Eighth Circuits, and upheld the dismissal. The Seventh Circuit held that obesity is not an ADA impairment unless there is evidence of an underlying physiological cause. It also held that the Chicago Transit Authority (CTA) did not perceive the plaintiff, a 596-pound bus driver, to be disabled when it terminated him due to safety issues.
The driver, Mark Richardson, was sent for a safety assessment after returning from a lengthy medical leave. He was required to undergo the assessment because he weighed over 400 pounds, and the drivers’ seats were designed to hold only 400 pounds. During the assessment, he was unable to do hand-over-hand steering, he cross-pedalled (i.e. kept his foot on both the brake and accelerator at the same time), and his leg pressed against the lever that opens the rear door. All of these safety issues were due only to his physical size. Richardson argued that under the ADA, Equal Employment Opportunity Commission (EEOC) regulations, and EEOC interpretive guidance, severe obesity like his should automatically qualify as an ADA impairment, without having to show any underlying physiological cause. The Seventh Circuit found his interpretation of the ADA and its regulations to be too broad.
Richardson cited EEOC interpretive guidance that states:
‘impairment does not include the physical characteristic of weight if both of the following elements are present: (1) the weight [is] within the normal range; and (2) the weight is not the result of a physiological disorder.'
He therefore attempted a grammatical analysis by removing the two negatives and arguing that:
‘[i]mpairment does include the physical characteristic of weight if either of the following elements are true: (1) the weight is not within the normal range; or (2) the weight is the result of a physiological disorder.’
The Seventh Circuit rejected this interpretation and held that ‘a more natural reading’ of the interpretive guidance is that an 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. Agreeing with the arguments made in the amicus brief filed on behalf of the Illinois Association of Defense Trial Counsel (IADTC), the court stated that if it were to read the EEOC interpretive guidance in the way Richardson suggests:
‘any employee whose weight – or other physical characteristic – is even slightly outside the ‘normal range’ would have a physical impairment even with no underlying physiological cause.’
The court recognised that such results must be rejected because otherwise, the ‘regarded as’ prong of the ADA would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the ADA was passed.
The Seventh Circuit also disagreed with the amicus briefs filed in support of Richardson, which argued that because obesity is a disease, it is in and of itself a physiological disorder and therefore an ADA impairment. The court found the argument unpersuasive pointing out that the ADA is an anti-discrimination, not a public health statute, and Congress’s desires as it relates to the ADA do not necessarily align with the medical community. Further, the argument proved ‘too much’ because if the court were to agree that obesity is itself a physiological disorder, then, as argued in the IADTC’s amicus brief, all obesity would be an ADA impairment, which would mean that nearly 40% of the American adult population would automatically have an ADA impairment, leading to a ‘nonrealistic result.’
Richardson also argued that CTA perceived him as disabled, as shown by sending him for the testing, and by some comments about his weight and physical condition. In a succinct and narrow statement, the court stated that in order for the CTA to have regarded Richardson as disabled:
‘Richardson must present sufficient evidence to permit a reasonable jury to infer that CTA perceived his extreme obesity was caused by an underlying physiological disorder or condition.’
The court found that CTA made its decision based only on Richardson’s size and that Richardson failed to present any evidence that CTA believed that his obesity was caused by some underlying physiological condition.
In the context of obesity (and potentially other conditions), this ruling is very beneficial for employers because if an employer even thinks about the underlying cause of an employee’s obesity in the first place, it seems more likely that the employer would believe that an employee’s obesity is caused by a poor diet and a lack of exercise rather than some unknown underlying physiological cause (such as a thyroid issue or some other uncommon disease). The Court’s holding can essentially be interpreted like the old medical adage ‘When you hear hoofbeats, think of horses not zebras.’ Employees will now have the burden to show that employers thought of zebras and not horses when (and if) considering the cause of an employee’s obesity.
This decision does not prevent obese employees from receiving protection under the ADA. Aside from the situations in which the obesity is caused by an underlying physiological condition, if the employee has an ADA-recognised impairment that is caused by the obesity, such as high blood pressure, diabetes, or joint pain, those conditions may qualify for protection, without regard for the cause. This ruling only provides that the condition of obesity, in and of itself, will not automatically constitute an ADA impairment.
Employers should establish a process within the company to properly evaluate all requests for ADA accommodations, including to determine whether a condition constitutes a disability (which will frequently involve reviewing medical information), and then engaging in interactive process to determine whether there are any reasonable accommodations that would allow the employee to perform the essential functions of the job. In so doing, the employer’s process should shield those who make day-to-day employment decisions about the employee from receiving the detailed information. Instead, the interactive process should occur only between those who serve in a human resources role in order to insulate the supervisors making employment decisions from improperly considering information about an employee’s disability or medical (or mental health) status.