Courts Continue Obesity Conflict

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 23, 2019

Adult obesity is over 30% in 29 states, 35% in 7 states, and 25% in 48 states. So, we are dealing with a national public health issue. Legally, recent decisions illustrate the difficulty which courts have in determining whether obesity is a disability.

In the case of Richardson v. Chicago Transit Authority, the 7th Circuit (Illinois, Indiana and Wisconsin), ruled that an over 400-pound CTA driver was not disabled as defined under state law and the Americans with Disabilities Act. The Chicago Transit Authority bus seats were built to support a maximum of 400 pounds per person. In addition to Richardson’s problem in meeting that requirement, he was unable to do hand-over-hand steering and due to his obesity, there were times he would press on the brake and the accelerator at that same time. He was placed on a temporary medical disability leave and ultimately, terminated. He argued that his obesity was a disability under the ADA. The Court rejected that, stating that, otherwise, approximately 40% of all American adults would meet the ADA definition of disability.

In the case of Taylor v. Burlington Northern Rail Road Holdings, Inc., a District Court for Washington concluded that the Washington law against discrimination was violated due to Taylor’s obesity, even though the ADA would not have defined Taylor as disabled. The employer gave a conditional job offer dependent on a physical exam. The physical exam found that Taylor’s body mass index (BMI) was 41.3. BMI is a value based upon a combination of an individual’s height and weight. It has been used to characterize whether an individual is considered underweight, overweight or obese. Overweight is considered with a BMI of 25 to 30, obese is over 30. Taylor’s BMI was 41.3, which is considered morbidly obese. The Rail Road treated any BMI over 40 as a trigger for additional screening, and it ultimately determined that it could not conclude that Taylor could safely perform the job. Taylor was given the opportunity to pay for additional testing, including blood work, a sleep study, and an exercise tolerance test to prove his fitness. Taylor contended he could not afford the additional testing, and sued his prospective employer under the Washington (State) Law Against Discrimination (WLAD).

Looking to the Washington legislature’s specific intent that the WLAD definition of disability be broader than that under the ADA, the Court ruled that obesity always qualified as a disability under the WLAD because it was a standalone diagnosis, often with multiple causes and consequences outside of merely being overweight.

The Court ruled that the employer could not per se reject the applicant under Washington state law due to the applicant’s perceived disability. Thus, the employer should have engaged in an individualized reasonable accommodation assessment.

So, what is an employer to do? We believe that even under the tougher Washington state law at issue in the Taylor case, the Chicago Transit Authority would have succeeded because its decision was based on the employee’s actual inabilities, which posed safety risks which could not be mitigated or accommodated. We suspect that more courts and states will begin to treat obesity as a disability, even though, currently, the overwhelming majority state that conditions caused by obesity may be a disability but obesity itself is not. Ironically, obesity in high income and upper income countries is more than double the obesity level in low and lower-middle income countries.

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