Obesity as an Impairment Under the Americans With Disabilities Act

• Publication year: 2022

53 Creighton L. Rev. 359. OBESITY AS AN IMPAIRMENT UNDER THE AMERICANS WITH DISABILITIES ACT

OBESITY AS AN IMPAIRMENT UNDER THE AMERICANS WITH DISABILITIES ACT

-Daniel J. McDowell '21 ^[*]

I. INTRODUCTION

There are many jurisdictions throughout the country where an employer can fire workers simply because they are obese. ^[1] Since 1990, the Americans With Disabilities Act ("ADA") has protected disabled workers from such discrimination, but many courts insist that unless obesity is caused by some other disease, it cannot be a disability. ^[2]

Congress amended the ADA in 2008 to reject attempts by the courts to restrict the Act's protections and to expand the ADA's coverage. ^[3] The Equal Employment Opportunity Commission ("EEOC") has consistently maintained that obese individuals can be considered disabled, regardless of the cause of their condition. ^[4] Finally, reputable bodies in the medical community consider obesity to be a disease and have developed uniform methods of determining when someone is obese. ^[5] The ADA can protect obese individuals without opening employers to a flood of frivolous lawsuits. ^[6] Courts that consider obesity an impairment regardless of cause are more consistent with the Congressional intent behind the ADA and the EEOC's regulations enforcing it. ^[7]

First, this Article will survey the history and purpose of the ADA and the structure of an ADA claim. ^[8] Second, it will examine how the courts approach ADA claims based on obesity. ^[9] Third, this Article will analyze how the EEOC treats obesity in its regulations and interpretive documents, before discussing how major bodies in the medical community understand obesity. ^[10] Fourth, this Article will argue that because Congress expanded the protections of the ADA in 2008 and the EEOC consistently maintains that obesity can be a disability, courts that agree properly defer to Congress's and the EEOC's understandings of the ADA. ^[11] Finally, this Article will argue this approach is reasonable because courts can use procedural means to protect themselves from frivolous claims, and it accords with the medical community's view of obesity as a disease with distinct symptoms and treatments. ^[12]

II. BACKGROUND

A. THE ADA & THE ADAAA

The ADA ^[13] was enacted in 1990. ^[14] With the law, Congress recognized that persons with physical and mental disabilities have been subject to discrimination throughout American history. ^[15] Congress provided those persons with legal protection from such discrimination in employment, housing, education, and other critical areas. ^[16] Congress intended the ADA to use the scope of federal authority to provide broad, consistent, and strong standards for protecting disabled persons. ^[17]

Under subchapter one of the ADA, covered entities are forbidden from discriminating against a qualified individual, because of a disability, in any aspect of that individual's employment. ^[18] The ADA defines a disability as a physical or mental impairment substantially interfering with some important life activity, having a record of an impairment, or being thought of as having an impairment by an employer. ^[19] An employer, one type of covered entity, is any person who runs a business with more than fifteen employees. ^[20] An individual is qualified for a position if they can perform the essential functions of a job, with or without an accommodation. ^[21] The essential functions of a position are determined in light of an employer's judgment and any written description prepared by the employer. ^[22] Reasonable accommodations include making a workplace accessible to disabled employees, purchasing equipment to assist such employees, and assigning disabled employees to positions they can perform. ^[23] Discrimination includes classifying an employee so as to limit his or her opportunities or status and denying job benefits or privileges. ^[24] Finally, the EEOC has the authority to publish regulations that interpret the ADA and provide employers and individuals with guidance regarding the Act's enforcement. ^[25]

After the passage of the ADA, courts narrowed its application. ^[26] In Sutton v. United Airlines, Inc., ^[27] the Supreme Court determined that whether a person has an impairment significantly interfering with an important life activity must be determined in light of corrective measures. ^[28] In Sutton, two sisters with severe myopia applied for commercial pilot positions with United Airlines. ^[29] Both women had uncorrected visual acuity of 20/200 in both eyes, but each had visual acuity of 20/20 when using glasses or contacts, and could function just as well as someone with normal vision. ^[30] Both sisters met the age, education, and experience requirements for the positions, but their vision failed to meet United Airlines's requirement that a commercial pilot have uncorrected visual acuity of at least 20/100. ^[31] The sisters' interviews were terminated and neither was offered a position with the airline. ^[32] The sisters were able to function just like individuals without myopia when using glasses; therefore, the Court determined they were not subject to a substantially limited major life activity. ^[33]

When Congress passed the ADA Amendments Act of 2008, ^[34] it expressly rejected the efforts of courts to restrict the ADA's breadth of coverage. ^[35] Among numerous other changes, the Amendments broadened the scope of the Act by identifying specific major life activities. ^[36] Congress specified that biological functions, such as the functioning of the immune and circulatory systems, are major life activities. ^[37] Perhaps most importantly, the Amendments reaffirmed that the term disability should be understood to provide a broad range of coverage. ^[38]

B. HOW A PLAINTIFF PROVES THE EXISTENCE OF A DISABILITY UNDER THE ADAAA'S EXPANDED COVERAGE

To succeed in a workplace disability discrimination claim, an employee must show that he or she is a qualified individual who suffered discrimination based on a disability. ^[39] Whether the plaintiff is a qualified individual and whether the plaintiff was in fact discriminated against is outside the scope of this article; the key here is whether the plaintiff is disabled. ^[40] There are three branches of ADA claims, and this section will examine each in turn to show what a plaintiff must prove to qualify as disabled. ^[41]

The first branch of ADA claims is the actual disability branch. ^[42] To succeed in these claims, a plaintiff must prove he or she is actually impaired. ^[43] Then, the plaintiff must show that his or her impairment seriously inhibits some major life activity. ^[44] The EEOC lists blindness, cancer, cerebral palsy, HIV, and muscular dystrophy as examples of physical impairments capable of substantially impeding critical life activities. ^[45] The EEOC has also noted that physical characteristics such as muscle-tone, weight, and hair-color are not impairments when they are within a usual range and not caused be a physiological disorder. ^[46] The EEOC has created regulations mandating that courts should interpret the term substantially limits broadly in favor of providing coverage to a wide range of persons. ^[47] EEOC regulations further state that a plaintiff only needs to establish that the impairment substantially limits a major life activity relative to how that activity operates in the general population. ^[48] Finally, they maintain that courts are supposed to focus on whether employers have acted discriminatorily, not on the minutiae of whether an impairment substantially limits some major life activity. ^[49]

The next branch of the ADA is the record of branch. ^[50] To succeed in a record of claim, a plaintiff must prove that he or she either has a history of a physical impairment that significantly constrains a major life activity or has been misdiagnosed as having such a history. ^[51] The determination of whether an important life activity was seriously impaired is made in the same way as in an actually disabled claim. ^[52]

To prove a physical disability under the regarded as prong of the ADA, a plaintiff must show that his or her employer committed a prohibited action, such as termination, on the basis of an actual or perceived impairment. ^[53] The perceived impairment need not substantially limit some major life activity or be perceived as doing so. ^[54] The EEOC specifically notes that a plaintiff who is regarded as having a disability will still have to prove his or her employer discriminated against him or her. ^[55]

C. OBESITY IN THE COURTS

Since Congress attempted to clarify disability jurisprudence in 2008, courts have addressed whether obesity may be a disability in three ways. ^[56] The majority of courts, including most United States Circuit Courts of Appeals, state that, without an underlying physiological cause, obesity is not a physical impairment and thus cannot be a disability. ^[57] A minority of courts, mostly state courts and federal district courts, defer to the EEOC and hold that obesity may be a physical impairment without an underlying physiological cause. ^[58] Finally, a few courts decline to determine whether obesity is an impairment that can constitute a disability, resolving ADA claims based on obesity on alternate grounds. ^[59]

1. The First Approach: A Physiological Cause Required

In 2016, the United States Court of Appeals for the...