This week, the United States Supreme Court declined to review an 8th Circuit decision which centered on the issue of whether obesity is covered by the Americans with Disability Act (“ADA”). In the case of Morriss III v. BNSF Railway Company, the Eighth Circuit Court of Appeals held that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. The case arose when BNSF revoked an offer of employment to Morriss for a safety-sensitive position for which BNSF requried a body mass index (“BMI”) of 40 or less after two physical examinations revealed that Morriss had a BMI in excess of 40. Morriss filed suit alleging that BNSF discriminated against him based upon his obesity. The Eighth Circuit followed the EEOC’s guidance in holding 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.