United States: Stress Disorder And Obesity As "Disabilities" Under The Americans With Disabilities Act

By David L. Weinstein and Brett A. Middendorf

Two recent cases examining whether an employee is "disabled" and therefore, entitled to protection from discrimination under the Americans with Disabilities Act of 1990 ("ADA"), illustrate how courts are approaching health concerns gaining increasing societal attention: stress disorders and obesity.

The ADA prohibits employers with 15 or more employees from discriminating against qualified individuals with a disability in all aspects of the employment relationship and to make "reasonable accommodations" for all such qualified individuals unless doing so would cause "undue hardship" to the employer. A "disability" under the ADA is a physical or mental impairment that substantially limits a major life activity such as hearing, walking, speaking, thinking, and performing manual tasks. An impairment is not "substantially limiting" if an individual can perform activities that people perform in everyday life including bathing, brushing one's teeth, and household chores.

Stress Disorder

In Zeigler v. Potter, D.D.C., No. 06-1385, 2007 U.S. Dist. LEXIS 65329, Zeigler sued his employer, the U.S. Postal Service, for discrimination based on his disability, post-traumatic stress disorder ("PTSD"). The court found that Zeigler was not "disabled" under the Rehabilitation Act (the ADA counterpart for government contractors and government employers) because he could not show that his mental impairment substantially limited any major life activity at the time his employer refused his reasonable accommodation request.

Zeigler was a Vietnam War veteran employed by the U.S. Postal Service for 16 years when he was assaulted by a supervisor in 1998. This assault aggravated his PTSD, resulting in severe depression. In early 2000, Zeigler took unpaid medical leave to receive extensive counseling. Several months later, Zeigler's psychiatrist wrote to the Postal Service, stating that Zeigler's depression was so severe that it "interfere[d] with his social, occupational, and familial functioning" and that he would benefit from being placed on medical disability. Leave was denied and Zeigler thereafter was terminated from the USPS based on his unexcused absences. This decision was subsequently reversed by the Postal Service's equal employment opportunity office in November of 2001 because the Postal Service was found to have known that Zeigler was unable to return to work per his doctor's orders.

Zeigler was then cleared for "light duty" to work by his psychologist, who recommended that Zeigler work no more than 40 hours per week, with a total of four employees to supervise, time off to attend weekly therapy sessions, and be placed in a position where he would have no contact with the supervisor who had assaulted him. The Postal Service denied the request, stating the proposed restrictions "could not be accommodated." Ziegler's therapist thereafter wrote to the Postal Service, stating that Zeigler had permanent post traumatic stress disorder but was not presently exhibiting symptoms and therefore, the "current impairment [had] no significant impact on his major life activities" such as caring for himself, learning, and working. Based on this assessment, the Postal Service reiterated its refusal to reinstate Zeigler with the requested restrictions. Meanwhile, the Department of Veterans' Affairs ("VA") reached a different conclusion regarding Zeigler's disability status. The VA concluded that Zeigler was 70 percent disabled and entitled to a finding of "individual unemployability" because he suffered "severe and specified deficiencies in most areas of his life" related to his PTSD.

Ziegler sued the Postal Service under the Rehabilitation Act, alleging disability discrimination, failure to accommodate, and retaliation. The court rejected Ziegler's claims, finding that regardless of the VA's conclusions, the letter from Ziegler's therapist showed that Ziegler's PTSD had no significant impact on his major life activities. Accordingly, the court found that Ziegler was not disabled under the standards of the Rehabilitation Act. Similar standards are provided under the ADA.

Obesity

In Greenberg v. BellSouth Telecomms. Inc., 11th Circuit, No. 06-15134, 2007 U.S. App. LEXIS 21670, the plaintiff alleged he was discriminated against due to his weight. Greenberg was employed as a telephone service technician, requiring him to occasionally climb and use certain lifting equipment. BellSouth had a safe load limit policy which stated that employees in jobs requiring climbing could not weigh more than the safe load limit of the equipment used in their work groups. The equipment used by technicians like Greenberg had a load limit of 275 pounds. In 2004, BellSouth hired a consultant to oversee enforcement of its safe load limit policy. Before this time, Greenberg's supervisor selected assignments for him that did not require climbing. As a result of the consultant oversight, Greenberg's supervisor told him that climbing would be required and gave him 25 weeks to lose the 50 pounds needed to comply with the safe load limit policy. After Greenberg failed to lose the necessary weight, he was given 60 days to find another job. Although a position answering phones was available, Greenberg informed BellSouth that he was not interested in any position other than a technician job. When the 60 days expired, Greenberg was terminated.

Greenberg sued under the ADA and a state counterpart law with similar standards of liability for employers. Each party presented expert witness testimony regarding Greenberg's ability or inability to lose weight due to various factors such as diabetes, hypertension, and hypothyriodism. In affirming summary judgment for BellSouth, the federal appellate court stated that Greenberg's ability to lose weight was immaterial to determining whether he was "disabled" under the ADA. What is material, the court explained, was whether (1) his physical or mental impairment substantially limited a major life activity, (2) there was a record of such an impairment, or (3) Greenberg had been regarded as having such an impairment.

The appellate court found there was no evidence that Greenberg had a record of impairment, was regarded as impaired, or that BellSouth had treated him as disabled. Furthermore, the court noted that Greenberg could perform major life activities including household chores, bathing, and getting dressed. The court found, "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Similarly, it continued, to be substantially limited in working, one must be unable to perform a broad class of jobs.

Lessons For Employers

These cases show that to be "disabled" under the ADA or Rehabilitation Act, a plaintiff must prove more than that the employer was unwilling to modify job requirements to meet an employee's particular needs. Rather, an employee must show: (a) that the impairment substantially limits him or her from performing basic daily activities (e.g., bathing, dressing, household chores, etc.) or that the employer treated by the employee as if he or she were disabled; and (b) that the impairment prevents the employee from performing a broad class of jobs. Where an employee asserts that he or she is disabled, employers should carefully evaluate the specific facts and consult with counsel before deciding to deny the employee a requested accommodation or terminate employment.

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