It’s no secret that there is an obesity epidemic in America. According to the Centers for Disease Control (CDC), more than 1 in 3 adults (78.6 million total) are now obese. In addition to its adverse effects on health and lifestyle, obesity also imposes tremendous financial costs: it is estimated that the average obese person incurs $1,429 more in medical costs each year than those who are of “normal” weight (BMI between 18-24.9), with a total estimated annual cost of $147 billion.
Earlier this week, the Eighth Circuit weighed in on the question of whether obesity qualifies as a disability under the Americans with Disabilities Act (ADA). Morriss v. BNSF Ry., No. 14-3858 (8th Cir. Apr. 5, 2016). A three-judge panel unanimously answered no.
Here’s the skinny: Melvin Morriss applied to be a machinist with BNSF in March 2011. BNSF offered him the job, but because the position is safety-sensitive, made the offer contingent on his passing the company’s standard medical review. It was company policy not to hire new applicants for safety-sensitive positions if their body mass index (BMI) is 40 or over.
Morriss identified himself as being 37 years old, 5’10” tall and weighing 270 pounds, stated that his overall health was “good,” and that he was not currently diabetic or subject to any difficulties or limitations in his daily life activities. Two exams by BNSF physicians, however, revealed that Morriss weighed more than he said he did (an experience familiar to almost anyone who has stepped on a scale after applying for a driver’s license). At the two exams, Morriss weighed in at 285 pounds and 281 pounds, respectively, with corresponding BMI of 40.9 and 40.4. Consistent with its policy, BNSF revoked its conditional job offer, concluding that Morriss was “[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).”
Morriss then sued BNSF, claiming disability discrimination. He claimed both that his obesity was an actual disability and that he was “regarded as disabled” by BNSF. The company moved for summary judgment on the grounds that obesity is not a “disability” covered by the ADA because it is not a “physical impairment.” The district court agreed with BNSF and concluded that Morriss did not show he was disabled. The court further reasoned that BNSF did not regard him as disabled because it “acted only on its assessment of Morriss’s predisposition to develop an illness or disease in the future.” Morriss appealed.
Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities” (or having a record of/being regarded as having such an impairment). 42 U.S.C. § 12102(1)(A)-(C). As the court noted, the term “physical impairment” is not defined by the statute. EEOC regulations and interpretative guidance, however, tipped the scales in favor of the conclusion that obesity itself is not a physical impairment.
Current regulations state that “physical impairment” is limited to “[a]ny physiological disorder or condition . . . affecting one or more body systems” (e.g. the cardiovascular, circulatory, or reproductive system). 29 C.F.R. § 1630.2(h)(1). Likewise, the agency’s Interpretative Guidance states,
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
29 C.F.R. Pt. 1630, App’x § 1630.2(h) (emphasis added).
The court was not persuaded by the EEOC Compliance Manual’s reference to “severe obesity” as an impairment, both because the Manual contradicted the ADA’s text and because Morriss did not meet the Manual’s definition of severe obesity even if that definition did apply. The court also relied on the weight of authority from two other appellate courts that had previously reached the same result. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 442-43 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997). Although these cases were decided before the 2008 amendments to the ADA, the court acknowledged, the fact that Congress did not amend the definition of “physical impairment” implied that pre-amendment case law remained fully in effect.
Therefore, the court concluded, “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 the result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found.” Because Morriss lacked evidence of any physiological disorder giving rise to his obesity, his being overweight was insufficient to state an ADA claim.
The court’s opinion does not alter the underlying ADA landscape, where a number of other medical conditions associated with obesity, such as diabetes, hypertension, cardiac disease, or sleep apnea, can qualify as a “disability.” Nevertheless, the decision is a welcome result for employers of all sizes.