Is obesity a "per se" disability? One court says no.

A panel of the U.S. Court of Appeals for the Eighth Circuit ruled this week that obesity is not a "disability" within the meaning of the Americans with Disabilities Act -- even as amended in 2009 -- unless the condition was caused by some underlying physiological disorder.

Biggie Size.flickrCC.SarahRoseCohen

In addition, if the individual develops a medical condition because of the obesity (such as diabetes or hypertension), then the resulting medical condition could be a disability.

The plaintiff, Melvin Morriss, was offered a job with BNSF Railway. When he went for his post-offer medical examination, it turned out that he had a Body Mass Index of 40.9 (he was 5'10" and weighed 285 pounds). BNSF withdrew the job offer based on a policy against hiring anyone with a BMI of 40 or higher on the ground that such individuals were likely to develop medical conditions that BNSF didn't want to have to deal with.

A BMI of 25 to 29.9 is considered "overweight," and a BMI of 30 or higher is considered "obese."

Apart from his weight, Mr. Morriss reported no medical conditions or limitations.

After Mr. Morriss sued BNSF under the Americans with Disabilities Act, a federal court in Nebraska granted summary judgment to BNSF on the ground that Mr. Morriss was not "disabled." Mr. Morriss appealed to the Eighth Circuit, which affirmed. The EEOC and the American Association of Retired Persons filed amicus ("friend of the court") briefs on his behalf. On BNSF's side were the U.S. Chamber of Commerce, the Equal Employment Advisory Council, the National Federation of Independent Business, and the Small Business Legal Center.

Curly Fries.flickrCC.ericmolina
Court says: If these are the only reason you're obese, and if they haven't killed you yet, then you don't have a disability.

The panel found that Mr. Morriss was not disabled because he had no underlying medical condition that caused his obesity, or any medical conditions that had resulted from it. The court found that he wasn't "regarded as" disabled because there was no evidence that BNSF "regarded" him as anything other than someone with a BMI that was too high. Refusing to hire someone because of the fear that his unhealthy habits could lead to health problems later was not a violation of the ADA, either, the panel said.

The panel specifically rejected the position taken by the EEOC in its Compliance Manual that "obesity alone" could be an ADA-protected impairment if the individual was, say, twice his or her normal weight ("more than 100% over the norm"). The panel said there was no authority in the ADA for the agency's position and that it contradicted regulations previously issued by the EEOC. And, anyway, Mr. Morriss was heavy, but he wasn't that heavy -- to be twice his normal body weight, he would have had to weigh almost 400 pounds.

The panel also refused to follow another court decision involving BNSF, which I've written about here, in which the Montana Supreme Court ruled that morbid obesity was a protected disability regardless of its cause or effects. (The Montana court used the ADA Amendments Act to interpret a state disability statute.)

As wellness programs take increased importance, this is a big (sorry!) issue to follow. Will other courts agree with this panel? We'll see.


Ellen Kearns, co-chair of our Wage-Hour Practice Group and a frequent contributor to this blog, has an in-depth analysis of the Supreme Court's recent decision in Tyson Foods v. Bouahakepo.

Barbara Kihumba of our Immigration Practice Group explains how the U.S. Department of Homeland Security has extended the Optional Practical Training time allowed for qualified nonimmigrant students with STEM degrees.

Image Credits: From flickr, Creative Commons license. Wendy's "biggies" by Sarah Cohen-Rose; $6 plate of curly fries by Eric Molina.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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