Unless the individual’s lack of height – or other physical characteristic – is tied to a physiological disorder, the Americans with Disabilities Act does not apply, as the U.S. Court of Appeals for the Eleventh Circuit recently explained.
In Colton v. FEHRER Automotive, North America, LLC, the 4’6” employee was assigned to work at a table that was too tall for her. Her request for a shorter table or a step stool was refused. Her complaint to Human Resources was brushed off, and she was then terminated as “not a good fit” (perhaps literally?) for the company. She then sued, but the trial court dismissed her lawsuit for failure to state a discrimination claim.
The Eleventh Circuit affirmed the dismissal of her lawsuit, finding that she did not have a disability within the meaning of the ADA. Under the ADA, an individual has a disability if they: (1) have a mental or physical impairment that substantially limits one or more major life activities; (2) have a record of such impairment; or (3) are regarded as having such impairment.
In its regulations, the EEOC has defined “impairment” to mean “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems …” The EEOC has also issued further guidance that such impairments do “not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” And the Eleventh Circuit noted that even the U.S. Supreme Court has stated that employers are “free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others.”
In this case, the employee did not assert that her short stature was the result of any kind of physiological disorder. This deficiency was fatal to her claim under the ADA. And although she tried to invoke the “regarded as” prong of the disability definition, the Eleventh Circuit noted that the employer would have to regard her as having a physiological disorder, even if she did not actually have one. That was not the situation here.
Although the employee was not protected by the ADA, we want to remind employers that many state and local jurisdictions have discrimination protections for personal appearance, which would include physical characteristics such as height.