Appeals Court Weighs Issue of Obesity as a Protected Disability

While obesity is not generally recognized as a disability under the American’s with Disabilities Act (ADA), a case currently before the federal Seventh Circuit Court of Appeals may help tip the scales in a different direction.

Mark Richardson, a bus driver for the Chicago Transit Authority (CTA), sought to return to work after a medical leave of absence.  Richardson presented a certificate from the CTA’s third-party medical services provider stating that he was fit to return “subject to clearance by CTA’s safety department.”  The CTA then insisted that Richardson, who weighed almost 600 pounds, undergo a safety assessment to insure that he could perform his job tasks properly.

Employee Deemed Unsafe to Drive

The safety assessment determined that Richardson was unable to perform tasks required for safe operation of the vehicle.  In particular, he could not properly use the required hand-over-hand method of turning the steering wheel, and he was unable to keep his foot from depressing both the brake and the gas pedal at the same time. This determination, combined with the fact that Richardson exceeded the bus manufacturer’s recommended allowable weight, led the CTA to conclude that he did not meet their safety standards.  His employment was therefore terminated.

Richardson sued under the ADA claiming that because of his weight, the CTA implemented a different safety assessment than the one they ordinarily use.  Richardson argued that this was discriminatory because of his disability (obesity)  In the alternative, he contended that even if obesity is not a recognized disability, the CTA perceived it to be a disabling condition, thereby bringing him under the ADA’s protection for persons “regarded as” having a disability.

The CTA countered, however, that an assessment was required by the medical provider’s conditional return-to-work authorization, and also by the need to specially assess his abilities given Richardson’s size.  They further argued that since obesity is not a recognized disability, he had no basis to sue regardless of how the assessment was handled.

Underlying Disorder is Required

Judge John Robert Blakey of the Northern district of Illinois granted the CTA’s motion to dismiss the case. Judge Blakey explained that while there is not complete unanimity of opinion, the majority of courts (including the Eighth Circuit which includes Minnesota) have ruled that obesity by itself is not a recognized disability under the ADA.  Instead, ADA protection is warranted only if the obesity is caused by “some underlying physiological disorder or condition.”  To rule otherwise, Judge Blakey observed, would equate a mere physical characteristic such as height, left-handedness, etc., with an actual physical impairment, which goes beyond the stated purpose of the ADA.  Since Richardson presented no evidence of an underlying disorder that caused his obesity, he was not disabled under the ADA.

Richardson’s “regarded as” claim was dismissed on essentially the same basis.  Judge Blackey explained that when an employee claims discrimination based on a perceived disability, the condition that is perceived must itself be a disability that is cognizable under the ADA.  If the perceived condition is not a disability, the employee obviously cannot be regarded as disabled.  Since obesity is not a disability, Richardson could not have been unlawfully regarded as disabled when he was terminated.

Richardson has appealed this decision to the Seventh Circuit.  He is receiving support from a number of influential medical and advocacy groups, some of whom have submitted friend-of-the-court briefs urging the court to recognize obesity itself as a covered impairment regardless of the presence of underlying physiological causes.  They cite updated scientific and medical recognition that obesity itself is a disorder that negatively affects various body systems, thereby coming squarely within the ADA’s definition of a disability. While precedent may still favor affirmance of the lower court, the arguments advanced by Richardson’s advocates are compelling and are sure to be given serious consideration.

Bottom Line

Evolving medical and societal views often influence the courts, just as we have seen in regard to sexual harassment and the #MeToo movement.  If the Seventh Circuit becomes the first appeals court to rule that obesity is a covered disability even in the absence of underlying physiological causes, we may see a surge in other courts following suit.  This will open up new avenues for claims and new demands for accommodation by employees whose size impairs their ability to perform their jobs.

We will watch for the Seventh Circuit’s decision in this matter, which we expect some time in the late summer of fall.