By Wade W. Herring, II, published on November 28, 2000, in Employment Publication.
“But wait a bit,” the Oysters cried,
“Before we have our chat;
For some of us are out of breath,
And all of us are fat!”
The Walrus and the Carpenter by Lewis Carroll
Does obesity constitute a disability under the Rehabilitation Act of 1973 or the Americans with Disabilities Act? Statistics indicate that the percentage of Americans who are overweight is steadily increasing. The United States Court of Appeals for the First Circuit decision in the case of Cook v. State of Rhode Island, Dept. of MHRH renewed debate about whether obesity is a disability protected by law.
The Cook case was the first time a federal Appellate court addressed whether, and under what conditions, obesity is covered by the Rehabilitation Act. In Cook, the court found that the employer discriminated against a morbidly obese job applicant based on a “perceived” disability. Bonnie Cook stood 5’2″ tall and weighed over 320 pounds when she applied for a job as an institutional attendant for the mentally retarded, a job she had successfully performed previously for the same employer, the Department of Mental Health, Retardation, and Hospitals (MHRH). During the routine pre-hire physical, a nurse employed by MHRH found no limitations on Cook’s ability to do the job. Nevertheless, MHRH claimed that Cook’s obesity compromised her ability to evacuate patients in case of an emergency and put her at greater risk of developing serious ailments. MHRH speculated that Cook’s condition would promote absenteeism and increase the likelihood of workers’ compensation claims. Consequently, MHRH refused to hire Cook. A jury awarded Cook compensatory damages in the amount of $100,000.00. Although Cook brought her action under the Rehabilitation Act, the Cook decision has broader implications because of the close relationship between the Rehabilitation Act and the ADA.
Both the Rehabilitation Act and the ADA contain similar definitions of the term “disability.” Disability means any person who (1) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. The ADA specifically provides that it shall be construed consistently with the Rehabilitation Act and the regulations issued pertaining to the Rehabilitation Act. In addition, the ADA requires the Equal Employment Opportunity Commission (“EEOC”) to prevent the imposition of inconsistent or conflicting standards between the two Acts. For these reasons, the Cook decision provides guidance to all employers with 15 or more employees.
What is obesity?
In medical terminology, a body weight 20-40% over the norm for one’s height is classified as mild obesity; a weight 41-100% over the norm is considered moderate obesity; a weight 100% or more over the norm is termed severe or morbid obesity. The Cook case involved a morbidly obese individual. Morbid obesity, however, is a rare condition. Most health professionals agree that obesity has multiple causes, including genetic, psychological, and social factors. In a small percentage of cases, physiological and neurophysiological factors such as endocrine dysfunction and brain damage may cause obesity.
“Perceived” Disability Analysis
In Cook, the court based its analysis on the Rehabilitation Act’s regulatory framework for a perceived disability case. Under the regulatory framework, a person “is regarded as having an impairment” if (a) he or she has a physical impairment that does not substantially limit a major life activity but that is perceived by an employer as constituting such a limitation; or (b) has a physical impairment that substantially limits major life activities only as the result of the attitudes of others toward such impairment; or (c) has none of the impairments but is treated as having such an impairment.
The appellate court found that Cook had produced sufficient evidence for a jury to find a “physical impairment”. The court noted that Cook admittedly suffered from morbid obesity. The evidence included expert testimony that morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite-suppressing signal system, capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems. Moreover, MHRH’s own decision maker, a doctor, opined that Cook’s condition foreclosed a broad range of employment options in the health care industry. Although Cook was a perceived disability case, the evidence suggests that warning to employers that morbid obesity may also constitute a physical impairment in an “actual” disability case.
Of particular interest is the court’s rejection of some of the more common attacks against the notion of obesity as a disability – mutability and voluntariness – and the court’s adoption of the position asserted by the EEOC.
1. Mutable Condition.
In Cook, the employer argued that morbid obesity is a mutable condition, and therefore, that one who suffers from it is not disabled because one can simply lose weight and rid oneself of any concomitant disability. Unpersuaded, the court noted that mutability is relevant only in determining the substantiality of the limitation flowing from a given impairment. Adopting the EEOC’s position, the court concluded that mutability only precludes those conditions that an individual can easily and quickly reverse by behavioral alteration.
2. Voluntary Condition.
The employer also argued that because morbid obesity is caused, or at least exacerbated, by voluntary conduct, it cannot constitute an impairment falling within the ambit of the Rehabilitation Act. The court rejected this argument because the Rehabilitation Act indisputably applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, cancer resulting from cigarette smoking, heart disease resulting from excesses of various types, and the like. The court concluded that voluntariness, like mutability, is relevant only in determining whether a condition has a substantially limiting effect.
3. EEOC’s Position
In a friend-of-the-court brief filed in the Cook case, the EEOC argued that obesity may be a disability under the Rehabilitation Act and the ADA if it constitutes an impairment and if it is of such duration that it substantially limits a major life activity or is regarded as so doing. Although the EEOC’s brief represented its first full analysis on the obesity issue, the EEOC’s Interpretive Guidance on the ADA had briefly addressed the issue. In defining “impairment”, the EEOC’s Interpretive Guidance states that “physical characteristics such as . . . weight . . . that are within ‘normal’ range and are not the result of a physiological disorder” are not physical impairments. Similarly, when discussing the term “substantially limits”, the EEOC’s general rule is that “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities.” Specifically, the EEOC’s Interpretive Guidance states that “except in rare circumstances, obesity is not considered a disabling impairment.”
Nevertheless, the EEOC takes the position that obesity cases should be determined on a case by case basis. The EEOC suggests that whether an individual’s obesity is a covered disability turns on the duration of the condition and its long-term impact. In Cook, the EEOC argued that since morbid obesity is a rare, chronic condition that by definition exceeds the “normal” range, it is a disabling impairment if it has a significant long-term impact on a major life activity.
Other Court Decisions
1. Before Cook.
The issue of discrimination on the basis of weight under the Rehabilitation Act and state laws has previously been a topic of debate. Michigan and the District of Columbia, for example, have enacted legislation specifically prohibiting discrimination on the basis of weight. Other states have considered similar legislation, but ultimately rejected the inclusion of weight as a protected class. In addition, commentators have debated whether obesity should be considered a disability under the Rehabilitation Act and the ADA. In general, courts have been reluctant to recognize obesity as a disability.
For example, in Tudyman v. United Airlines, a bodybuilding flight attendant applicant who exceeded the airline’s weight limitation by fifteen pounds was not protected by the Rehabilitation Act because his weight condition was voluntary, he suffered no physical impairment, nor was he substantially limited in any major life activities because the airline only disqualified him for the position of flight attendant. Similarly, in Cassita v. Community Foods, Inc., the California Supreme Court recognized that an individual who alleges employment discrimination on the basis of weight may have a claim under the California Fair Employment and Housing Act (“FEHA”), but only if the weight problem arises from a physiological condition or disorder. In Cassita, the court noted that the FEHA is modeled on the Americans with Disabilities Act.
The plaintiff in the case of Horton v. Delta Air Lines, Inc. sought relief under both Title VII and the ADA. Plaintiff was not permitted to work as a flight attendant because she exceeded Delta’s maximum weight requirements in place at the time. Delta’s guidelines included weight maximums for both male and female flight attendants, with the stated goal of fostering a “professional image in the minds of Delta passengers.” Plaintiff refused Delta’s suggestion that she transfer to a ground position. Relying upon extensive case law involving other flight attendant claims, the court concluded that weight programs are not per se unlawful under Title VII but may be discriminatory if applicable only to female employees, or if applied on arbitrarily different terms to female employees, or if enforced unequally against female employees. The court concluded that plaintiff did not make out a claim under the ADA because a position as a flight attendant is just one particular job. Plaintiff, therefore, had not suffered a substantial limitation of a major life activity.
2. After Cook.
Other courts have weighed in since the Cook decision, and plaintiffs have met with mixed results. The case of EEOC v. Texas Bus Lines concerned Arazella Manuel, a 5’7″ woman weighing 345 pounds, who was denied a job as bus driver. Manuel’s ideal body weight was between 122 and 154 pounds; she met the test for morbid obesity. The case dramatically illustrates that an employer cannot escape liability when it has relied upon an uninformed doctor’s opinion.
Manuel was interviewed, her references were checked, and she was given, and successfully passed, a road test. The bus lines manager who interviewed her “stated that he did not notice Manuel moving awkwardly when she entered the room and sat down, and did not think she was heavier than many of the other drivers hired by Texas Bus Lines.” Manuel’s problems arose when she went for her physical examination mandated by the Federal Motor Carrier Safety Regulations.
At her examination, lasting all of five to six minutes, Manuel encountered one Dr. Frierson who refused to issue the requisite Medical Examiner’s Certificate because he concluded that Manuel would not be able to move swiftly in the event of an accident. Frierson testified that his conclusion was based purely on his observation that Manuel had difficulty getting out of her seat in the waiting area, and that she “waddled” slowly to the examining room. Frierson did not conduct any other agility or mobility tests. Frierson admitted that he had no specific training regarding the duties of bus drivers, motor vehicle safety, or the dynamics and consequences of various auto accidents. Additionally, Frierson admitted that morbid obesity is not itself a disqualifying condition for drivers under the applicable regulations. The court concluded as a matter of law that Texas Bus Lines impermissibly discriminated against Manuel on the basis of a perceived disability.
Mary Nedder, a 5’6″ woman of 375 pounds, made it past summary judgment on her perceived disability claim, but lost on her disability in fact claim. Nedder v. Rivier College. Nedder based her actual disability allegations on her difficulty in walking and her inability to participate in academic processions at the college where she had been an assistant professor prior to her termination. Even though the medical evidence was that Nedder could walk only with considerable exertion and not as swiftly as other people, the court concluded that her ability to walk was only “moderately impaired,” not “substantially limited.” Additionally, her inability to participate in academic processions did not substantially limit her ability to work as a professor.
Nedder was more successful on her perceived disability claim. An individual who is not substantially limited may still be “disabled” if she is treated by the employer as having an impairment that substantially limits major life activities. The employer’s perception of the condition is not enough. Rather, the employer must perceive that the condition substantially limits a major life activity. Working is a major life activity, but for the plaintiff to prevail, the employer must perceive that the condition forecloses generally the type of employment involved, not simply a particular job. The court concluded that a trier of fact could find that the college perceived Nedder’s obesity as substantially limiting her ability to teach, in part because of evidence that the decision makers who did not renew Nedder’s contract with the college believed that obese teachers are perceived by students as less disciplined and less intelligent and as making unsuitable role models.
The 290 pound plaintiff in the case of Hazeldine v. Beverage Media, Ltd., did not survive summary judgment on either her actual or perceived disability claims. Her obesity never interfered with her ability to do her job. The plaintiff testified that her weight did not prevent her from carrying out everyday physical activities such as walking or going upstairs, although her ability to do some activities was limited. Nevertheless, the plaintiff presented evidence that her obesity constituted a physiological condition which affected at least her musculoskeletal, respiratory, and cardiovascular systems. The court concluded that a jury could find that her obesity satisfied the requirements of a physical impairment.
A finding of physical impairment, however, does not end the inquiry. The court went on to hold that a physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The critical issue is whether plaintiff’s obesity substantially limits a major life activity. An impairment may affect an individual’s life without becoming disabling. The Hazeldine court concluded that the plaintiff had not presented facts sufficient for a reasonable jury to find that her obesity significantly limited a major life activity: “There is no evidence that plaintiff’s obesity limits her ability to see, hear, speak, breathe, learn, work, sit, stand, reach, care for herself, perform manual tasks, drive a car, or commute to work in any way. To be sure, plaintiff has presented evidence that she cannot shovel snow or engage in other strenuous physical exercise. She also alleges that she is limited in her ability to lift and carry objects weighing more than ten pounds. She cannot kneel or bend, and must kick a dropped object close to a chair to enable her to pick it up while sitting. After climbing stairs, raking leaves, doing housework or walking more than five city blocks she is out of breath and must stop and rest. While it is reasonable to conclude from this evidence that plaintiff’s obesity affects her ability to engage in everyday activities, these allegations are not sufficient to support the conclusion that her weight substantially limits a major life activity.”
The recent decision of Andrews v. State of Ohio was brought by plaintiffs who were merely out of shape, not morbidly obese. The plaintiffs were officers of the Ohio State Highway Patrol who were heavier than Ohio’s mandated weight limits or could not meet its fitness standards. The officers alleged that Ohio had discriminated against them because, even though they were not in fact disabled due to overweight or an absence of cardiorespiratory endurance and strength, Ohio, based on test results, perceived them to be impaired. Reviewing the district court’s grant of a motion to dismiss, the appellate court accepted the allegation as true. Nevertheless, the court reasoned that the officers had not properly alleged a perceived impairment. Under federal regulations, physical characteristics that are not the result of a physiological disorder are not considered impairments for the purposes of determining either actual or perceived disability. To hold otherwise, the court reasoned, would distort the concept of an impairment which implies a characteristic that is not commonplace, and would thereby debase the high purpose of the statutory protections available to those who are truly disabled.
The Virginia state trooper in the case of Smaw v. Commonwealth of Virginia Dept. of State Police was similarly unsuccessful. Smaw was hired in weighing 219 pounds with assurances on her part that she would correct her weight to meet department standards. Over her next nine years of employment, she received numerous written warnings about her weight and was finally demoted to dispatcher. The court acknowledged that “major life activity” includes working, but not necessarily at the job of one’s choice. In the words of the court, “[E]ven if a plaintiff is able to demonstrate that obesity qualifies as a ‘mental or physical disability,’ and that working qualifies as a ‘major life activity,’ she must also show that her disability ‘substantially limits’ her ability to work. . . . [D]isqualification from one particular job does not meet the substantiality requirement of the law.” See also Wolf v. Frank (inability to meet job requirement of lifting 70 pounds does not establish that employer perceived obesity as substantially limiting one or more of plaintiff’s major life activities).
Private employers are generally free to be arbitrary and even capricious in employment decisions, unless the employer somehow discriminates on the basis of race, national origin, alienage, age, sex, or disability. Once regarded as the last area of safe bigotry, discrimination on the basis of weight, or at least morbid obesity, is now suspect. In Cook, the court noted that “[i]n a society that all too often confuses ‘slim’ with ‘beautiful’ or ‘good’, morbid obesity can present formidable barriers to employment.” Morbid obesity of sufficient duration and with a significant impact on major life activities can constitute a disability.
The most difficult question which employers are now faced with, however, relates to “perceived” disabilities. Obesity as a “perceived” disability will be decided on a case by case basis. Courts will analyze whether an employer’s perception of what it thought the impairment to be foreclosed a sufficiently wide range of employment opportunities to serve as proof of a substantial limitation of major life activities.