OBESITY: APPEARANCE OR IMPAIRMENT?

According to a recent study, roughly 64.5% of American adults are overweight, and nine million adults in the U.S. can be classified as morbidly obese.  It should come as no surprise, then, that employers are frequently faced with the question whether they must accommodate an obese employee under the Americans with Disabilities Act (ADA).  A federal appellate court recently said no, holding that non-physiological morbid obesity is not an impairment under the ADA.  In that case, the employee was hired as a driver/dockworker in 1990.  At the time he was hired, the employee weighed 345 pounds, and during the next five years, his weight fluctuated between 340 and 450 pounds.  In 1995, the employee was injured when a ladder rung he was standing on broke, and he took a leave of absence to recover from those injuries.  When he requested leave, the employer advised the employee of the employer's policy that (i) any employee who remains on a leave of absence in excess of 180 days would be terminated; (ii) the employee would need a physician's release before returning to work; and (iii) the employee might be asked to take a physical exam before returning to work.  When a physician indicated that the employee could not safely perform his duties upon returning to work, the employer terminated the employee.

The employee sued, alleging that his physical characteristic -- morbid obesity -- constituted an impairment that his employer regarded as affecting his ability to do his job, thereby constituting a disability under the ADA.  The court rejected that argument, holding that the employee's mere appearance was not sufficient to constitute an impairment.  Rather, to qualify as an ADA impairment, a physical characteristic (here obesity) must result in a physiological disorder.  To hold otherwise, the court said, would suggest that any physical abnormality -- being extremely tall, for example -- may be an ADA impairment.  Extending ADA protection "to all 'abnormal' (whatever that term may mean) physical characteristics," the court cautioned, would cause the ADA to become a catch-all for any claim of discrimination based on appearance, size or any other characteristic, and the statute was never intended to be that broad.  Equal Employment Opportunity Commission v. Watkins Motor Lines, Inc., No. 05-3218, September 12, 2006.

Although this case may give employers more leeway in terms of actual impairments, remember that the ADA also protects individuals who are "regarded as" disabled.  Accordingly, if the employer regarded the employee as disabled, the case could have had a different outcome.