Labor & Employment Law Daily ‘Short of stature’ employee failed to show height was disability under the ADA
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Tuesday, May 12, 2020

‘Short of stature’ employee failed to show height was disability under the ADA

By Kathleen Kapusta, J.D.

“If the Supreme Court said that ‘height’ is a physical characteristic, not an impairment, then so will this Court,” the court explained, citing the Supreme Court’s Sutton v. United Airlines, Inc., decision.

Refusing “to read the ADA to elevate a physical characteristic—even if it is outside the normal or average range of individual variation—to the status of a ‘disability,’ unless the atypical characteristic results from a physiological disorder,” a federal court in Alabama dismissed the ADA discrimination claims of a 4’6″ tall assembly line employee who alleged her employer discriminated against her because of her “short stature.” Her failure to plead a viable claim under the ADA’s participation or opposition clause doomed her retaliation claim as well (Colton v. FEHRER Automotive, North America, LLC, May 5, 2020, Maze, C.).

Not a good fit. Assigned by a temporary work agency to work at FEHRER Automotive, a company that manufactures interior car parts, the employee was placed on the only available position: assembly. Because of her limited reach—which was caused by her short stature—she could not easily perform the job. Although she asked her training coordinator, and then HR, to accommodate her height, or move her to a different job within the plant, her requests were denied. Instead, she claimed, FEHRER determined that she was “not a good fit,” terminated her, and placed a note in her personnel file that she would not be rehired.

Suing under the ADA, she alleged that her short stature was a disability, that FEHRER discriminated against her because of her short stature, and that it retaliated against her when it terminated her and banned her from working there again.

Height as disability. Although the ADA defines “disability” in part as a physical or mental impairment that substantially limits one or more major life activities, it does not define “physical or mental impairment,” the court first noted. The EEOC, however, defines physical impairment as a “physiological disorder or condition … affecting one or more body systems.” Reasoning that the employee’s height “is more properly viewed as a physical characteristic, not a physiological condition or disorder,” the court cited Sutton v. United Air Lines, Inc., in which the Supreme Court explained that “An employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others.” Accordingly, the court refused to “elevate height from a characteristic to an impairment.”

Acknowledging that Congress amended the ADA to overrule Sutton in part, the court pointed out that the amendments broadened the scope of the phrase “that substantially limits one or more major life activities” but did not amend the “physical or mental impairment” phrase. Therefore, applying the “prior-construction cannon,” the court explained that Congress’ retention of the “physical or mental impairment” phrase post-Sutton required it to construe the phrase in the same manner as did the Supreme Court in Sutton. “If the Supreme Court said that ‘height’ is a physical characteristic, not an impairment, then so will this Court.” Thus, because the employee failed to establish that her short stature was a physical or mental impairment, she failed to show she suffered from a disability.

Regarded-as claim. Also rejected was the employee’s contention that even if she was not actually disabled, FEHRER regarded her as disabled. Because height itself is not a disability under the ADA, the court observed, she had to show that FEHRER perceived that her height resulted from a physiological disorder or condition. Not only did she fail to plead any facts in support of this, there was evidence showing FEHRER considered height to be a safety and ergonomic issue rather than a disability.

Retaliation. Turning to the employee’s claim FEHRER retaliated against her for “reporting and opposing discrimination,” after she complained to HR that the training coordinator refused to accommodate her, the court first noted that she failed to identify whether her claim fell under the ADA’s opposition or participation clause. Because internal complaints are not entitled to protection under the participation clause, the employee’s claim failed under that clause.

And while the opposition clause prohibits employers from retaliating against an employee who “has opposed any act or practice made unlawful by this chapter,” the employee failed to sufficiently allege that FEHRER committed an unlawful act or practice. Noting further that an employee must reasonably believe that the act or practice she is opposing violates the ADA, the court found that while the employee may have believed in good faith that her height was a disability under the ADA, her belief was not objectively reasonable. The Supreme Court’s opinion in Sutton and the EEOC’s interpretive guidance, said the court, “make it clear enough that merely being of short stature is not a disability under the ADA. Any contrary belief would not be objectively reasonable.”

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