Recently there has been a lot of discussion about whether obesity should qualify as a defined disability under the Americans with Disabilities Act (ADA). For example, on September 27, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against BAE Systems, Inc. (BAE Systems), a Virginia-based military vehicle manufacturer, alleging that the company engaged in unlawful disability discrimination against employee Ronald Kratz II. According to the complaint, Kratz had been affiliated with BAE Systems since 1994 and worked as a material handler from 2001 until his 2009 termination. The EEOC contends that Kratz was morbidly obese at the time of his discharge, and his obesity substantially limited him in one or more major life activities and rendered him “disabled” under the ADA Amendments Act of 2008 (ADAAA). The EEOC further asserts in the alternative that the company “regarded” Kratz’s morbid obesity as a disability, even if the courts should conclude that it was not within the meaning of the ADA.

According to the EEOC, Kratz reported to work on October 28, 2009, but was directed to report to the Human Resources Department. There, a human resources official allegedly relayed that the company had concluded Kratz should be terminated as he could no longer perform his job duties. The company then allegedly failed to engage in the interactive process to determine whether there were reasonable accommodations by which Kratz could perform the essential functions of his position and denied his request to transfer into a different position. The EEOC further contends that, at the time of his discharge, Kratz was qualified to perform his essential job functions, earning overall ratings of “very good” on both his 2008 and 2009 performance evaluations, and that he was replaced by an individual who was not morbidly obese. The EEOC is now seeking lost wages, benefits, compensatory damages, punitive damages, reinstatement, and injunctive relief enjoining the company from future unlawful employment practices.

This is not the first time that the EEOC has filed an action against an employer for alleged unlawful discrimination due to an employee’s obesity. In 2006, the EEOC took the position in EEOC v. Watkins Motor Lines, Inc. that, in extreme cases, physical characteristics can rise to the level of an ADA impairment even without a corresponding disorder, if the physical characteristic falls outside the “range of normal.” In essence, the EEOC argued that, while simple obesity not caused by a physiological disorder may not be an impairment, weight that grossly exceeds the normal range may constitute an impairment. However, the Sixth Circuit rejected the EEOC’s position, holding that an employee’s obesity must have a physiological cause to be considered an impairment. According to the court, to hold otherwise may create a slippery slope whereby any physical abnormality – such as being “extremely tall or grossly short” – could be considered an impairment under the ADA. Thus, the court declined to extend ADA protection to all abnormal physical characteristics.

Other courts have reached different conclusions. For example, in Lowe v. American Eurocopter, LLC., a former employee alleged that she was terminated due to her weight. Like in Watkins, defendant employer argued that obesity was not a disabling impairment under the ADA. The district court, however, found that under the ADAAA’s expansive definitions of “substantially limits” and “major life activities,” obesity could constitute an impairment under the Act, even if not causally linked to a disorder.

In Lowe, the plaintiff asserted that her weight affected the major life activity of walking, and this impacted her ability to walk from the parking lot to work. The plaintiff also alleged that the employer was aware of her inability to walk from the regular parking lot, and the court noted that plaintiff possibly could be considered disabled if the employer perceived or regarded her weight as an impairment. Ultimately, the court concluded that the plaintiff pled facts sufficient to allege that she qualified as disabled under the ADA and denied defendant’s motion to dismiss her disability claim.

This unsettled area of the law creates various challenges for employers seeking to discipline certain employees for performance related issues. According to the 2007-2008 National Health and Nutrition Examination Survey (NHANES), an estimated 34.2% of U.S. adults aged 20 years and over are overweight, 33.8% are obese, and 5.7% are extremely obese. As demonstrated above, the EEOC is hoping to send a message to employers that they cannot fire overweight employees based on alleged perceptions and prejudices regarding the employees’ abilities to perform their essential job function. In addition, the broad “regarded as” prong of the ADAAA is particularly dangerous for employers given that the protections of the Act may be invoked if the employer merely perceives a condition to limit a major life activity. This perception may serve to convert a non-traditional disability, such as obesity, into a disability protected by the ADA. Thus, the bottom line is that employers should proceed with caution when making disciplinary or termination decisions on the basis of obesity.