In Morriss v. BNSF Railway Company, the Eighth Circuit recently held that obesity that is not caused by an underlying physiological condition is not a covered “impairment” for purposes of the Americans with Disabilities Act (“ADA”), even following the 2008 amendments to the ADA that broadened the definition of what is considered a protected disability.
In Morriss, an employment applicant sought a machinist position with BNSF and was given a conditional offer contingent on a satisfactory medical review. During the review, the applicant reported that he was 5’10” tall and weighed 270 pounds, had once been diagnosed as “pre-diabetic” (but was not currently diabetic), and had taken appetite-suppressant medication, but purely for weight loss purposes. The applicant further stated that he considered his overall health “good” and that he experienced no limitations in his day-to-day activities. The medical examination confirmed that the applicant had a body mass index (“BMI”) of over 40.
BNSF maintained a policy against hiring new applicants for safety-sensitive positions if their BMI equaled or exceeded 40 based on the applicant’s high risk of developing certain medical conditions in the future. As a result, BNSF revoked the applicant’s conditional offer. He in turn filed suit in the District of Nebraska, claiming that BNSF discriminated against him on the basis of disability, both because his obesity is an actual disability under the ADA and because BNSF regarded his obesity as an actual disability.
The district court granted summary judgment in favor of BNSF, finding first that the applicant failed to prove that his obesity constituted an actual disability because he did not show that it substantially limited a major life activity, as defined under the ADA. The district court further rejected the applicant’s claim that BNSF “regarded” him as having a disability, holding that such a claim requires a finding that the employer took a prohibited action based on an actual or perceived physical or mental “impairment,” and that the definition of “impairment” under the ADA does not include “characteristic predisposition to illness or disease.” Because BNSF’s decision to revoke the conditional offer was based on the applicant’s predisposition to develop certain medical conditions in the future, the court concluded that it did not regard him as having a disability under the ADA.
The applicant in turn appealed the decision on his “regarded as” claim. The Eighth Circuit affirmed, holding that summary judgment in favor of BNSF was appropriate because to prevail on a “regarded as” claim, the applicant was required to show that his obesity was an actual or perceived “physical impairment,” and for obesity to be considered a physical impairment under the ADA, it must result from an underlying physiological disorder or condition, which was not the case here. The court further noted that the ADA does not prohibit discrimination based on a perception that a physical characteristic that does not rise to the level of a physical impairment may eventually lead to such an impairment as defined under the law.
More specifically, the circuit court rejected the applicant’s argument that interpretive guidance by the Equal Employment Opportunity Commission (“EEOC”) stating that “[t]he definition of the term ‘impairment’ does not include physical characteristics such as . . . weight . . . that are within ‘normal’ range and are not the result of a physiological disorder” means that an underlying physiological disorder is necessary to the finding of an impairment only if an individual’s weight is within “normal range.” Rather, stated the court, “a more natural reading of the interpretive guidance is 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 a result of a physiological disorder”—that is, both factors must be present.
The court further noted that both the Sixth and the Second Circuits have also rejected the argument that weight outside the normal range may constitute a physical impairment even in the absence of an underlying physiological condition, citing, respectively, EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006) and Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). The court went on to reject the applicant’s argument that these cases were no longer applicable because they were decided prior to the enactment of the ADA Amendments Act of 2008 (“ADAAA”), which expanded the interpretation of the definition of disability.
To that end, the court found that, in enacting the ADAAA, Congress did not express any disagreement with prior judicial interpretations of the term “physical impairment” or instruct the EEOC to revise its prior definition of the term. Therefore, concluded the court, “pre-ADAAA case law holding that obesity qualifies as a physical impairment only if it results from an underlying physiological disorder or condition remains relevant and persuasive.”
While the Eighth Circuit’s holding is based on a plain reading of the ADA and the EEOC guidance at issue, it becomes the first circuit court to opine on this question post-ADAAA. It is also important to note that the EEOC filed an amicus brief on behalf of the applicant in this matter, in which the agency took that position that, post-ADAAA, the guidance should be read to mean that to prove an impairment, a showing of an underlying physiological disorder is required only if a person’s weight is within “normal” range. Therefore, employers are forewarned that—notwithstanding the Eighth Circuit’s decision—this issue is likely to be on the EEOC’s radar going forward.
UPDATE – On May 19, 2016, the Eighth Circuit denied the applicant’s petition for an en banc rehearing of the panel decision.