The Americans with Disabilities Act (ADA) protects most job applicants and employees from discrimination, harassment, or retaliation based on disability. While employers are likely familiar with many of the physical and mental conditions that are commonly considered disabilities, one gaining more and more attention is obesity. As our understanding of obesity advances—the genetic underpinnings, the pervasiveness of unhealthy processed foods, and even the socioeconomic and educational disparities that influence health—scientists and medical professionals increasingly consider obesity as a condition that must be treated to prevent potentially fatal conditions. This is demonstrated most clearly in the American Academy of Pediatrics’ new guidance calling for aggressive early medical intervention, including bariatric surgery, to reverse childhood obesity and the increasing use of medications to assist with weight loss.
While some state and federal courts in Texas, Louisiana, and Mississippi, and some municipalities, including New York City, have recognized weight as a potential disability under anti-discrimination laws, the vast majority of federal and state courts still hold that weight is not a disability under the ADA or its state-level equivalents.
- The vast majority of courts have held that obesity is not a disability under the ADA unless it is caused by an underlying health condition.
- Some federal district courts, as well as many state courts, have held that obesity is a disability even absent evidence of an underlying health condition.
- Employers in jurisdictions where obesity may be a disability may want to review their disability-related policies and verify that their job descriptions accurately reflect the physical requirements of each position.
Brief Synopsis of the ADA
The ADA protects a qualified individual with a disability against discrimination based on the individual’s disability. A person is qualified if he or she can perform the essential functions of a position with or without a reasonable accommodation. A disability is (1) a physical or mental impairment (i.e., “any physiological disorder, cosmetic disfigurement, or anatomical loss affecting one or more … body systems,” whether permanent, temporary, or episodic) that substantially limits one or more major life activities; (2) a record of such an impairment (i.e., a prior history of a mental or physical impairment); or (3) being “regarded as” having an impairment (i.e., a perceived disability). The ADA prohibits discrimination, harassment, and retaliation based on an individual’s disability or disability-discrimination complaint in job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment.
Obesity as a Disability
On January 31, 2022, the Eighth Court of Appeals of Texas (El Paso) held that an emergency medicine resident was unlawfully discriminated against because her morbid obesity was regarded as a disability by her employer. The court concluded that the employee was not required to show that her employer believed the perceived impairment arose from a physiological cause. Instead, the court held, morbid obesity could be considered a physical impairment in a “regarded as” claim if her employer viewed her as being impaired from her morbid obesity. This decision followed similar opinions in four cases from federal district courts in Texas, Louisiana, and Mississippi (the U.S. Court of Appeals for the Fifth Circuit has not yet weighed in), as well as state-law cases in California, the District of Columbia, Florida, Montana, New Jersey, New York, Oregon, and Washington, which all held that obesity could be an actual or perceived disability under the ADA, even absent an underlying physiological disorder or condition.
In May 2023, the New York City Council approved a bill to prohibit employment discrimination on the basis of height or weight. This follows similar ordinances in San Francisco, California; Binghamton, New York; Madison, Wisconsin; and Urbana, Illinois. Michigan also bans height and weight discrimination under a law passed in 1976.
Notwithstanding these isolated exceptions, the vast majority of federal courts still hold that obesity is not a physical impairment under the ADA unless it is the symptom of an actual or perceived underlying physiological disorder or condition, such as diabetes. The jurisdictions following this rationale include the U.S. Courts of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island); Second Circuit (Connecticut, New York, and Vermont); Third Circuit (Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands); Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee); Seventh Circuit (Illinois, Indiana, and Wisconsin); Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota); and Eleventh Circuit (Alabama, Florida, and Georgia), as well as federal district courts in Arizona, Colorado, and Maryland.
These courts have relied primarily on interpretive guidance from the U.S. Equal Employment Opportunity Commission (EEOC) issued in 1990—found in the appendix to 29 C.F.R. § 1630.2(h) relating to the definition of “impairment” under the ADA—which 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. (Emphasis added.)
As such, for courts to move in the same direction en masse, the EEOC would almost certainly need to release new guidance recognizing obesity as a potential disability under the ADA. In the meantime, we will likely continue to see a piecemeal approach from courts and policymakers.
While some courts and New York City have recognized obesity as a potential disability under the ADA and its state-law equivalents, the vast majority of courts have not. As such, most employers likely do not need to make any immediate revisions to their policies and practices, though they may want to monitor legal developments in this area. Employers in the jurisdictions discussed above, on the other hand, may want to (1) include size in their EEO, anti-discrimination, and anti-harassment policies and ensure managers and supervisors are trained on the new policies; and (2) verify that their job descriptions accurately reflect the physical requirements of each position so that obese applicants and hiring managers can evaluate at the beginning of the hiring process whether applicants can perform the essential functions of jobs with or without accommodation.
Ogletree Deakins will continue to monitor developments with respect to the ADA and will post updates on the Leaves of Absence and Employment Law blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs. Please also follow us on Twitter and on LinkedIn.