Obesity does not meet the definition of a “disability” under the Americans with Disabilities Act (ADA) for either the discrimination or “regarded as” provisions of the statute, a panel of the Eighth Circuit Court of Appeals recently held, unless it is also a “physical impairment,” which means that it must be a “physiological disorder or condition . . . affecting one or more major body systems.” As a result, in Morriss v. BNSF Railway Co., the Eighth Circuit affirmed summary judgment for the railroad.
Background
Melvin A. Morriss, III applied to BNSF Railway Co. for a job as a machinist, a safety sensitive position. He received a conditional offer of employment and underwent a prehire physical examination, which reported that he was 5’ 10” tall and weighed slightly more than 280 pounds, with a body mass index (BMI) slightly in excess of 40. The prehire medical report stated 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).”
The district court granted BNSF’s motion for summary judgment on the ground that obesity did not meet the definition of “disability” under the ADA because it was not a “physical impairment” and that BNSF did not regard his obesity as a disability. The district court also denied Morriss’s motion for partial summary judgment on his “regarded as” claim.
The Eighth Circuit’s Decision
On appeal, the Eighth Circuit held that Morriss had failed to point to evidence in the record that his obesity limited him from performing the essential functions of the machinist job or that it caused him any physical limitations. Thus, it found that the district court’s conclusion that Morriss had not shown that his obesity was an actual disability because he failed to prove that it was a physical impairment was correct, and affirmed the grant of summary judgment on that claim.
Second, the Court of Appeals considered Morriss’s “regarded as” claim under the ADA. Here, the Eighth Circuit panel, in an opinion authored by Judge Wollman, agreed with the district court that BNSF had rescinded its conditional offer of employment because of its concern that Morriss’s Class III obesity and BMI of 40 posed an unreasonably high risk of developing certain medical conditions in the future, and found that this determination did not violate the statute. “Because BNSF acted only on its assessment of Morriss’s predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA.” Therefore, the Eighth Circuit also affirmed the district court’s grant of summary judgment on the “regarded as” claim.
Morriss had argued for a contrary interpretation of the term “physical impairment” based on his reading of the U.S. Equal Employment Opportunity Commission’s (EEOC) regulations and a 2012 Montana Supreme Court decision, BNSF Railway Co. v. Feit. He argued that since his weight was outside a “normal range,” his obesity was a disability under the ADA. In the Feit case, the court stated that obesity that was not a symptom of a physiological disorder or condition may constitute a physical impairment.
The Eighth Circuit, however, disagreed with this reading of the statute and related regulations. It cited the applicable EEOC regulations, which state that the term “disability” means “[a]ny physiological disorder or condition . . . affecting one or more body systems.” The Eighth Circuit also looked to the EEOC’s interpretive guidance that refers expressly to weight, and provides that “[t]he definition of the term ‘impairment’ does not include physical characteristics such as . . . 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.”
The Eighth Circuit rejected the argument put forth here by Morriss and accepted by the Montana Supreme Court that the texts should be read separately and, as a result, weight outside the “normal” range should be considered a disability. “Both requirements must be satisfied before a physical impairment can be found. In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.” The Eighth Circuit also rejected Morriss’s argument based on a similar interpretation of the law set out in the EEOC’s Compliance Manual, since that interpretation “directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance.”
The Eighth Circuit opinion noted that additional support for its reading of the statute and regulations could be found in the decisions of other federal courts of appeals. The court then addressed Morriss’s argument that some of those decisions were decided before the enactment of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The Eighth Circuit reasoned that pre-ADAAA cases construing the term “physical impairment” were still good law because Congress did not express disagreement with the judicial construction given the term by the courts, and dealt only with judicial construction of the term “disability” in the 2008 amendments.
Finally, the Eighth Circuit rejected Morriss’s argument that BNSF discriminated against him because it perceived him as having a physical impairment. “Morriss did not produce evidence that BNSF perceived his obesity to be an existing physical impairment,” the court said. Rather, the Eighth Circuit observed, quoting the district court, it was “undisputed that Morriss ‘was denied employment . . . not because of any then current health risk identified by BNSF . . . but because BNSF believed by having a BMI of 40, [Morriss] would or could develop such health risks in the future.’”
Key Takeaways
This decision provides valuable guidance to employers and is important in light of the fact that the National Institutes of Health (NIH) reports that data from the National Health and Nutrition Examination Survey, 2009–2010 show, among other things, that more than two out of three adults are considered to be overweight or obese, and more than one out of three adults are considered to be obese. The NIH also reports that a BMI of 40 or higher represents “extreme obesity.” With nearly two-thirds of American adults qualifying as either overweight or obese, a rule that would classify them as having a disability regardless of any physical impairment would make it extremely difficult to manage a workforce, a substantial portion of which would be able to request a reasonable accommodation.
