Employment Law Daily Bus driver failed to show severe obesity was disability under the ADA
Thursday, November 16, 2017

Bus driver failed to show severe obesity was disability under the ADA

By Kathleen Kapusta, J.D.

Because a Chicago Transit Authority bus driver who weighed over 500 pounds offered no evidence of any underlying physiological disorder or condition that caused his severe obesity, a federal district court in Illinois denied his motion for partial summary judgment on the issue of whether his obesity constituted a disability under the ADA. And because he did not allege a physical impairment within the meaning of the ADA, he failed to show that the transit authority regarded him as having a qualifying physical impairment, said the court, granting summary judgment against his regarded as claim (Richardson v. Chicago Transit Authority, November 13, 2017, Blakey, J.).

A medical evaluation performed by CTA doctors in 2009 showed that the employee weighed 566 pounds. Beginning in February 2010, he was off work with the flu. Two months later, CTA transferred him to “Area 605,” an administrative holding area that allows full-time employees with a medical diagnosis that prevents them from working to be off work for a period specified in the governing collective bargaining agreement. In September, CTA’s third-party medical services provider documented that the employee was 71 inches tall, weighed 594 pounds, and was fit to return to work, subject to clearance by CTA’s safety department.

Special assessment. Although the employee was transferred out of Area 605 and back to his job, he underwent a special assessment to ensure he could safely operate a bus. The assessment report noted that he had to lean against the bus while performing a pre-trip inspection and he was sweating because he “appeared to be unhealthy.” Further, he was unable to perform “hand-over-hand” turning because of his stomach and could not stop “cross-pedaling”—having part of his foot on the gas and brake pedals at the same time—because of his size.

Unsafe. Relying on the assessment, a CTA manager determined that it was unsafe for the employee to operate any CTA bus. As a result, he was not allowed to return to work at any time between the assessment and his termination in February 2012.

Severe obesity as impairment. Although the employee moved for partial summary judgment on whether his obesity was a disability under the ADA, the court observed that no federal appellate court has held that extreme obesity constitutes a disability absent some underlying physiological basis. To the contrary, the Second Circuit, in Francis v. City of Meriden, explained that under EEOC interpretative guidance, weight is not a physical impairment and to hold otherwise would open up the “regarded as” prong of the ADA “to a range of physical conditions—height, strength, dexterity, and left-handedness, for example—not meant to be covered” by the Act.

EEOC guidance. Further, the Sixth Circuit, in EEOC v. Watkins Motor Lines, Inc.—rejecting an EEOC claim that a dock worker’s termination based on morbid obesity violated the ADA—declined to “extend ADA protection” to all abnormal physical characteristics. More recently, the Eighth Circuit, in Morriss v. BNSF Railway Co., rejected a plaintiff’s argument that the language in the EEOC’s interpretive guidance means that “an individual’s obesity must be the result of a physiological disorder only if his weight is within ‘normal range.’” The plaintiff based this argument on the fact that the definition of the term “impairment” in the guidance 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 physiological disorder. A “more natural reading of the interpretive guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder,” said the Morriss court.

Noting that the guidance distinguishes “between conditions that are impairments” and physical “characteristics that are not impairments,” and then lists weight as a physical characteristic, the court here found it “logical to conclude, as did the Eighth Circuit, that a plaintiff within the normal weight range should be precluded from asserting that he has a weight-based physical impairment, regardless of whether his weight is affected by an underlying physiological disorder or condition.”

Citing the guidance, the employee argued that the physical characteristic of weight is a qualifying impairment if either of the following is true: (1) the employee’s weight is not within the normal range; or (2) the weight is the result of a physiological disorder. Noting that this overly broad interpretation would permit a plaintiff of normal weight to claim a weight-based physical impairment, the court explained that neither the statutory text nor the EEOC’s guidance supported his contention that some types of physical characteristics may unconditionally qualify as physical impairments.

Compliance manual. The employee, however, relied on EEOC v. Res. for Human Dev., an out-of-circuit district court case concluding that severe obesity can qualify as a physical impairment under the ADA. In that case, the court quoted from a 2009 EEOC Compliance Manual, which stated that while being overweight is not generally an impairment, “severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.” But not only has the EEOC indicated that the ADAAA superseded the analysis in the manual (which has since been removed from its webpage), the court pointed out that the manual’s broad pronouncement on extreme obesity directly contradicts the ADA’s plain language as well as the EEOC’s own regulations and interpretative guidance, which all define physical impairment to require an underlying physiological disorder or condition.

Here, while the employee claimed he suffered from uncontrolled hypertension and sleep apnea, he failed to show these conditions constituted physiological disorders that caused his obesity. Thus, he failed to show he had a physical impairment with the meaning of the ADA.

Regarded as claim. The employee also argued that even if his severe obesity did not, by itself, qualify as an actual physical impairment, he was entitled to partial summary judgment under the “regarded as” prong of the ADA because CTA perceived him as having a physical impairment on the basis of his obesity. But, said the court, a regarded as claim requires that a plaintiff show discrimination “because of an actual or perceived physical or mental impairment.”

Further, explained the court, because EEOC regulations clearly limit the definition of a physical impairment to a “physiological disorder or condition” that affects “one or more body systems,” a physical characteristic such as obesity, whether actual or perceived, must still be the result of an underlying physiological disorder or condition to qualify as an impairment under the ADA. Here, because there was no evidence that the employee’s obesity resulted from any underlying physiological disorder or condition, he failed to show that CTA regarded him as having a qualifying physical impairment.

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