Are My Obese Employees Disabled Under The ADAAA?


by Abbey Moland

Moland, Abigail
amoland@mcgrathnorth.com
(402) 341-3070

Does obesity qualify as a disability under the Americans with Disabilities Act (ADA)? According to the EEOC in a newly filed lawsuit, the answer is an unequivocal “yes.” On September 27, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against BAE Systems, Inc. (BAE), alleging that the company engaged in unlawful disability discrimination against employee Ronald Kratz. 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. Kratz weighed 450 pounds when BAE Systems hired him and gained 200 pounds over the 16 years he was employed. 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. The EEOC also alleged that the Company 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. The EEOC further contends that, at the time of his discharge, Kratz was qualified to perform his essential job functions, earning overall satisfactory performance evaluations, and that he was replaced by an individual who was not morbidly obese.

The EEOC’s position on obesity as a disability is not new. For years it has unsuccessfully attempted to convince federal courts that obesity qualified as an actual disability under the ADA. 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.” However, the Sixth Circuit rejected that position, holding that an employee’s obesity must substantially limit a major life activity or have a physiological cause to be considered an impairment.

The ADAAA and its implementing regulations, which went effect May 24, 2011, made some key changes that expand coverage under the ADA. These changes may be a game changer for how courts analyze whether obesity is a disability under the ADA.

To illustrate, under the regulations, “substantially limits” is to be construed broadly and is not a demanding standard. The relevant comparison is to “most people,” not those similarly situated to the individual requesting the accommodation. Based on these changes to the analysis of “substantially limits,” a court could find that obesity is a covered impairment under the ADA, regardless of whether it is due to a medical disorder. In addition, it is important to point out that the ADAAA regulations state that physical “characteristics,” including height, muscle tone, and weight that are within the “normal range” and are not the result of a physiological disorder are not covered impairments. Because the regulations fail to address how to treat physical characteristics when they are outside the normal range, there remains a possibility that a court might find morbid obesity, or even obesity of a lesser degree, to be a covered impairment.

The ADAAA regulations also expanded the definition of “major life activities”. Some of the activities now included in this definition such as sitting, reaching, bending, and lifting could be substantially limited by obesity. The regulations also added “major bodily functions” to the definition of major life activities, which may implicate the systemic effects of obesity on bodily functions.

The new obesity-ADAAA analysis was already applied by a Mississippi federal court to deny an employer’s Motion to Dismiss the allegation. In Lowe (Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). the district court 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.

Notwithstanding, even if the Courts continue reject the EEOC’s position that obesity is a qualifying disability, there remain a number of ways in which an employer’s actions in response to an employee’s weight or request for accommodations related to his or her weight could trigger obligations under the ADA.

This is especially true with the “regarded as” theory if the employee is “subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to substantially limit, a major life activity.”

Employers are also cautioned about taking any adverse employment action against an employee who requests an accommodation related to his or her obesity in order to allow that person to perform the essential functions of the job. A claim of retaliation does not require the employee to demonstrate a disability within the meaning of the ADA, but only that the plaintiff has a reasonable, good faith belief that he or she was entitled the reasonable accommodation requested.

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