By Marjorie Johnson, J.D. For obesity—even morbid obesity—to be considered a physical impairment under post-ADAAA law, it must result from an underlying physiological disorder or condition, the Eighth Circuit ruled in refusing to revive an employee’s claim he was unlawfully denied a machinist job based on the employer’s determination that he posed significant health and safety risks due to his high Body Mass Index. His claim that he was “perceived” as disabled also failed since the ADA does not prohibit discrimination based on a perception that a physical characteristic (as opposed to a physical impairment) may eventually lead to a physical impairment. Thus, the court affirmed dismissal on summary judgment against his ADA and state-law claims (Morriss v. BNSF Railway Co., April 5, 2016, Wollman, R.). In May 2011, BNSF Railway Co. extended a conditional job offer to the employee for the safety-sensitive position of machinist. After he underwent two physical exams and provided medical documentation, the company’s medical department determined that he was not qualified “due to significant health and safety risks associated with Class 3 obesity (Body Mass Index of 40 or greater).” As a result, BNSF withdrew his job offer. He sued, asserting that he suffered unlawful discrimination based on his actual and perceived disability of obesity. Granting summary judgment to BNSF, the district court found he could not show he was regarded as suffering an actual disability since he failed to show his obesity was a physical impairment, i.e., a physiological disorder or condition that affected one or more major body systems. He was also not unlawfully “perceived” as disabled since BNSF only acted on its assessment of his predisposition to develop an illness or disease in the future, which is not included in the ADA’s definition of physical impairment (and thus disability). Must show underlying physiological disorder. In determining whether the employee could show that his obesity was regarded as an actual or perceived impairment the Eighth Circuit followed the district court’s lead and looked to the EEOC’s regulations, which clearly define the term to mean “[a]ny physiological disorder or condition . . . affecting one or more body systems . . .” The appeals court squarely rejected the employee’s reading of the language contained in the EEOC’s interpretive guidance referring to weight that is within the “normal” range as not being an impairment. Rather, “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.” ADAAA didn’t change standard. Noting that both the Sixth and Second Circuits (and several lower courts) have reached the same result, the court rejected the employee’s assertion that those cases were inapposite since they were decided prior to the enactment of the ADAAA. Notably, in enacting the ADAAA, Congress did not express any disagreement with judicial interpretations of the term “physical impairment” while expressly stating its intent to abrogate the Supreme Court’s interpretation of “substantially limits a major life activity.” Similarly, although Congress instructed the EEOC to revise its definitions of “substantially limits” and “major life activity” it gave no instructions regarding the definition of physical impairment. The court also rejected his contention that his obesity was in and of itself a physical impairment since it was labeled “severe,” “morbid,” or “Class III” obesity. This contention garnered no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder. To the extent the EEOC Compliance Manual states that “severe obesity,” namely, “body weight more than 100% over the norm,” is an impairment, it contradicted the ADA’s plain language as well as the EEOC’s own regulations and interpretive guidance, which all define “physical impairment” to require an underlying physiological disorder or condition. Moreover, even if “body weight more than 100% over the norm” did qualify as a physical impairment without an underlying physiological disorder or condition, the employee did not weigh enough to meet this definition. No perception of existing impairment. He also failed to revive his claim that BNSF unlawfully perceived him has having a physical impairment since it considered his obesity to present an unacceptably high risk that he would develop certain medical conditions in the future. While the ADA prohibits discrimination on the basis of a presently existing “physical impairment” it does not prohibit an employer from acting on its assessment that there is an unacceptable risk of a future physical impairment. Here, the questionnaire and treatment records the employee and his doctor provided to BNSF notified the company that he was not suffering from any physical impairment. Moreover, while his physical exams revealed that his BMI exceeded BNSF’s internal limits for safety-sensitive positions, they did not reveal that he had a physical impairment. Indeed, it was undisputed he was denied employment because BNSF believed by having a BMI of 40, he would or could develop health risks in the future. Accordingly, the district court properly rejected his argument that BNSF perceived him as having a physical impairment.
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