AMERICANS WITH DISABILITIES ACT » Obesity—The next wave of employment lawsuits?

One-third of adult Americans are obese.

The number of states with obese populations exceeding 30% is on the increase.

Now, factor in that obesity may be considered a disability for purposes of employment law, and the Americans with Disabilities Act (ADA) now recognizes an expanded concept of individuals who are considered “disabled.” Can an increase in discrimination charges and lawsuits based on obesity be far behind?

Not if the Supreme Court of Montana’s July 6 decision in a lawsuit brought by Eric Feit against BNSF Railway Company is any indication. Feit sued the railway when it refused to hire him as a conductor trainee after a physical exam concluded Feit exhibited “significant health and safety risks associated with extreme obesity.” Granted, this case was decided by a Montana state court—not the U.S. Supreme Court. Nevertheless, the decision illustrates the possibility of a future shift in the disability litigation landscape.

To reach its decision, the Montana court looked to the federal Americans with Disabilities Act for guidance. This included a review of Equal Employment Opportunity Commission regulations, interpretive guidelines, and the EEOC’s Compliance Manual. Typically, physical characteristics, without more, have not been considered “impairments” covered by the ADA. For that reason, courts in the past had held that to be a disability covered by employment law protection, an individual’s obesity must result from a physiological disorder or condition. The Montana court went a different direction.

The 2008 amendments to the ADA significantly expanded the definition of “disability” and increased the number of people who could potentially be covered by the law. The EEOC’s Compliance Manual defined “severe obesity” as body weight more than 100% over the norm. The manual went on to state that extreme deviations may constitute an impairment. Based on these concepts, the Montana court found that severe obesity – even in the absence of any physiological disorder or condition – may in and of itself be a covered disability, provided the obese condition substantially limits the individual’s major life activities.

Recognizing obesity in the absence of a physiological disorder or condition as a “disability” for purposes of employment law is a significant shift that could potentially apply to many employees. Is the Montana court a prophet that other courts will follow, or a lone outlier? Time will tell, but recent trends suggest Montana will not long be alone in its conclusion.