The Americans with Disabilities Amendments Act (ADAAA) did not
change the definition of impairment but it may have changed the
EEOC's view on whether obesity is an impairment.
The EEOC definition of "impairment," is "[a]ny
physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more systems, such as
neurological, musculoskeletal, spatial sense organs, respiratory
(including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hermetic, lymphatic, skin, and
The EEOC Interpretative Guidance specifically excludes from the
definition of impairment, physical characteristics. This includes
things such as eye color, hair color, and left handedness, but also
height, weight, or muscle tone that is within the
"normal" range and is not the result of a physiological
disorder from the definition of impairment. Before the ADAAA
passed, the EEOC took the position that severe or morbid obesity
was an impairment but that obesity rarely is. The EEOC subsequently
removed the language that obesity is rarely an impairment from the
2011 version of its Compliance Manual.
While it is not a definitive ruling, a recent state court
decision may shed some light on how courts will view the EEOC's
position. BNSF Railway Co. v. Feit.
Too Big For A Train Engine
Eric Feit sued BNSF Railway after it revoked a conditional offer
of employment to work as a conductor trainee on the grounds that
Feit was not qualified because of the significant health and safety
risks his extreme obesity presented in a safety sensitive position.
BNSF offered to consider him for the job if he lost 10% of his body
weight or successfully underwent additional physical examinations
at his own expense.
Although Feit passed additional physical exams, he could not
afford the $1800 sleep test. Feit subsequently filed a complaint
with the Montana Department of Labor (MDOL) alleging that BNSF
discriminated against him based on a physical disability. The MDOL
found in Feit's favor on the ground that BNSF had regarded him
as disabled. The Montana Human Rights Commission affirmed the
MDOL's decision. BNSF then appealed to the U.S. district court
for Montana to review whether it had violated Montana law. The
district court asked the Montana Supreme Court whether obesity
unrelated to a physical condition is an impairment under Montana
law. The Montana court said "yes."
The Montana court noted that Montana's anti-discrimination
law uses the same terms as the federal ADA and that
Montana courts looked to federal law and the EEOC regulations and
guidance in interpreting the law. In rejecting BSNF's argument
that Feit's obesity was not an impairment because it did not
result from a physiological condition, the court stated that the
EEOC's Interpretative Guidance suggests that a physiological
disorder is required only if an individual's weight is within
the normal range.
The court further noted that 1) the EEOC's Compliance Manual
indicated that extreme derivations in height, weight or strength
can be impairments; 2) the Compliance Manual states that
"severe obesity is an impairment"; 3) the federal
appellate opinions holding that obesity is not an impairment absent
a physiological condition all were decided before the ADAAA passed;
4) the 2011 Compliance Manual omitted the statement that simple
obesity was rarely a disabling impairment; and 5) the ADAAA was
intended to expand the definition of disability. The court then
cited two district court decisions, one in Louisiana and one in
Mississippi. Both held that under the ADAAA severe obesity need not
be based on a physiological condition to be an impairment.
The net result of the Montana Supreme Court's opinion is
that it opens the door for more courts to view severe obesity or
even obesity standing alone as an impairment. Given the lack of
definitive guidance be careful about rejecting requests for
accommodation from morbidly obese and obese employees. Remember, to
bring an action under the ADA, individuals need only show that they
have an impairment or that the employer thinks they have
And if obesity is viewed an impairment, it most likely will be
immune to the affirmative defense that it is temporary (lasting
less than six months) and minor. Consequently, employers who once
felt secure in rejecting requests for accommodation from obese
employees or denying obese applicants jobs should exercise caution
when doing so.
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A female employee traveling for her employer met a "friend" and at her motel room with him became "injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her."