Dean R. Dietrich, Marquette Law School Graduate 1977, is a Shareholder with Dietrich VanderWaal, S.C. in Wausau, Wisconsin, where he has practiced in the areas of employment, labor relations. school law, ethics and professional responsibility for more than 40 years.
The 7th Circuit Court of Appeals recently ruled that extreme obesity, by itself and alone, does not constitute a disability under the Americans With Disabilities Act. Employers must be careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties.
We have finally received a decision about obesity from the 7th Circuit Court of Appeals which governs employers in the state of Wisconsin. In this decision (Richardson v. Chicago Transit Authority, No. 17-3508 & 18-2199) (7th Cir. June 12, 2019)), the federal Court of Appeals held that extreme obesity, by itself and alone, does not constitute a disability under the Americans with Disabilities Act. We do not have a clear decision from the Equal Rights Division on this topic, so hopefully the ERD will follow the same reasoning as the Court of Appeals. 1 This is important because Wisconsin is high on the list of states with a large population of obese residents; 32 percent of Wisconsin residents qualify as obese.
The decision holds that an individual suffering from extreme obesity, meaning significantly overweight for his/her height, does not constitute a disability for which ADA protections must be provided. Employers must be careful, however, because there are two circumstances where the decision could be different: (1) instances where the obesity is the consequence of a physiological disorder or impairment, or (2) situations where the employer perceives the employee to be disabled because of his/her health condition being that of extreme obesity. Under either of these scenarios, the employee may be afforded protection from discrimination.
In another recent 7th Circuit Court of Appeals decision, the Court held that an employer did not violate the Americans with Disabilities Act when it had concerns about a future impairment that could be experienced by a candidate suffering from obesity. Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030 (7th Cir. Oct. 29, 2019) The Court held that the employer did not discriminate when it refused to consider an applicant suffering from extreme obesity for a safety-sensitive position that included the operation of heavy equipment. The Court held that the employer did not regard the candidate as disabled because the candidate did not “have” an impairment at the time although concern was expressed about a future impairment.
 The LIRC has held in Elmhurst v. School District of Neillsville (ERD Case No. CR 200500684) that an “’overweight condition’ cannot be considered a disability where there is no indication of glandular or other physiological disorder and the complainant’s weight was totally within the complainant’s control. Plizka v. A.O. Smith (DILHR Comm., 08/19/75).”
Other federal and state Supreme Courts have looked at this issue and provided different guidance. For example, the Court of Appeals for the 9th Circuit in Valtierra v. Medtronic, Inc (926 F. 3rd 881, 2019) failed to reach a conclusion whether obesity (standing alone) is an actionable “impairment” under the Americans with Disabilities Act. The 9th Circuit Court of Appeals ruled similarly to the 7th Circuit by holding that obesity cannot constitute a disability unless the obesity is caused by an underlying physiological condition. The 9th Circuit Court of Appeals found that the plaintiff had not shown a causal relationship between his obesity and his termination from employment.
On the opposite side of the spectrum, the Supreme Court for the State of Washington held that obesity is always an impairment under the Washington Law Against Discrimination and did not require a showing that the obesity is related to some other medical condition. Casey Taylor v. Burlington Northern Santa Fe Railway Company (2019 WL 3023161, Wash., July 11, 2019). The Washington State Supreme Court did not define obesity but relied upon a definition of disability. Disability under the Washington Law is defined as the presence of a sensory, mental, or physical impairment regardless whether it limits life activities that either is medically recognizable or diagnosable or exists as a record or history or is perceived to exist whether in fact it exists in actuality. The Court held that obesity is always an impairment because obesity is both a condition and a disorder affecting various bodily systems. The Court did distinguish situations where simply being overweight would not constitute a disability as compared to situations where an individual would be medically classified as suffering from obesity. The Court relied upon a 2013 pronouncement by the American Medical Association that defined obesity as a medical condition.
Employers need to be very careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform his/her duties. While the employer, under the recent 7th Circuit opinion, would appear to have the right to determine that the employee cannot perform the regular duties of his/her position, there is always the concern that the employer is thereby perceiving the employee to be disabled. In order to avoid that perception, the employer must make a reasonable and fact-based analysis of the ability of the employee to perform his/her regular duties even with the challenges of an extreme weight condition.