The Centers for Disease Control has ranked West Virginia as having the third highest percentage of obese adults in the United States, and the percentage of obese adults in Virginia, North Carolina and Pennsylvania rival that of West Virginia. Such a high percentage of overweight adults renders the possibility that obesity could become a protected class, and thus could become an issue to all employers. Since the 2008 Amendment to the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) and courts have expanded the legal definition of when obesity constitutes a “disability;” employees no longer have to establish that a physiological disorder caused their obesity – now obesity alone can be an impairment sufficient to categorize an employee as disabled. The EEOC has discarded its portion of the Compliance Guidelines that define disability, making it possible for courts to find that obese employees, not only severely or morbidly obese employees, can qualify as a protected class under the ADA, and at least one state court has followed suit. Because the ADA makes it easier for obese employees to establish that they are disabled, employers in all states should re-evaluate their hiring, firing and accommodation policies.

Obesity as a Disability

For the ADA to apply, an employee must have a disability, a record of disability, or have been regarded as disabled. See 42 U.S.C. §§ 12111-17. Being “regarded” as disabled requires an actual or perceived physical or mental impairment by the employer. 42 U.S.C. § 12102(3)(A). Even prior to the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), some state and federal courts held that obesity could qualify as a physical or mental impairment. For obesity to be considered a disability prior to the 2008 amendment, however, it had to be caused by a physiological disorder. With the passing of the ADAAA, Congress made clear its intent that the definition of disability be construed broadly to effectuate a wider scope of employee protection. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). This more inclusive definition of disability has led some state courts as well as the EEOC to forgo the earlier requirement that for obesity to be a disability, it had to be caused by a physiological disorder. See e.g. Lowe v. American Eurocopter, LLC, 2010 U.S. Dist. LEXIS 133343, ** 23, 25 (N.D. Miss. Dec. 16, 2010); EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

EEOC Abandons Need for Physiological Disorder Causing Obesity

The EEOC has publicly stated that “the law protects morbidly obese employees and applicants from being subjected to discrimination because of their obesity.” Press Release, U.S. Equal Opportunity Employment Commission, BAE Systems Subsidiary to Pay $55,000 to Settle EEOC Disability Discrimination Suit. (Jul. 24, 2012) at http://www.eeoc.gov/eeoc/newsroom/release/7-24-12c.cfm. In Civil Action No.:11-cv-3497, the EEOC filed suit on behalf of a terminated employee, Ronald Kratz II, against BAE Systems Tactical Vehicle Systems, LP (BAE Systems), a global security and defense company. The EEOC alleged that BAE Systems regarded Mr. Kratz as disabled because of his size and terminated Kratz because he weighed over 600lbs. Despite his size, Kratz was able to perform the essential duties of his job and received good performance reviews. Mr. Kratz was not offered any accommodation and was fired.  The EEOC alleged that morbid obesity is a disability protected under the ADAAA, forgoing any mention of a requisite physiological disorder. The case settled in late July with BAE Systems paying $55,000 in damages, providing Mr. Kratz with six months of outplacement services, and training of the company’s managers and human resources professionals.

Montana Adopts the Broader Definition of Obesity as a Disability

A few weeks prior to the BAE Systems’ settlement, the Montana Supreme Court held that obesity can be a disability even if an employee’s obesity is not the result of a physiological disorder. BNSF Railway Co. v. Feit, OP 11-0463 (Mont. 2012). In BNSF, the plaintiff applied to Burlington Northern Santa Fe Railway Company (BNSF) for the position of conductor trainee. In his complaint, the plaintiff alleged that BNSF discriminatorily refused to hire him because it regarded him as disabled due to his obesity. BNSF contended that the plaintiff was not qualified for the conductor trainee position because of the “significant health and safety risks associated with extreme obesity.” BNSF, however, extended a conditional offer to the plaintiff requiring that he lose 10% of his body weight or successfully complete physical examinations at his own expense due to the “safety sensitive” nature of his desired position. The plaintiff completed all physical examinations but one – an $1,800 sleep study that he could not afford.  He was denied employment.

The BNSF court held that obesity could be considered a physical or mental impairment even if it was not the result of a physiological disorder. Relying on the ADAAA’s expanded definition of “disability,” the Montana Supreme Court held that to constitute “obesity” for purposes of a discrimination claim, an individual’s weight must be outside the “normal range” and affect “one or more body systems.” BNSF Railway Co. v. Feit, OP 11-0463 (Mont. 2012) at ¶ 16 citing 29 C.F.R. § 1630.2(h)(1) (2011).

Prior to the ADAAA, the EEOC compliance manual defined weight outside the “normal range” as “body weight more than 100% over the norm.” EEOC Compliance Guidelines § 902.2(c)(5). However, the EEOC has removed Section 902, the definition of disability, from its Compliance Guidelines “since the analysis in it has been superseded by the ADA Amendments Act of 2008.” EEOC Compliance Guidelines § 902 at http://www.eeoc.gov/policy/docs/902cm.html. The EEOC states: “The ADAAA makes it easier for individuals challenging employment actions under Title I of the ADA to establish that they meet the definition of “disability” and are thus protected by the law.” Id. This opens the door for courts to reinterpret weight outside the “normal range” to include a wider range of employees. Thus employees that fall into the category of “obese” instead of severely or morbidly obese, may also be protected by the ADAAA if they meet the other requirements of having a disability.

Employer Should Revisit Hiring and Training Practices

Employers should revisit and, if necessary, readjust current hiring and training practices for employees with disability discrimination lawsuit prevention in mind. The three requirements included in the BAE Systems settlement agreement are beneficial guideposts that should be followed by employers: train company managers and human resource personnel in (i) equal opportunity employment compliance, (ii) disability discrimination including obesity as a disability, and (iii) reasonable accommodation responsibilities provided by the ADA.