It is now a well-known medical and social fact that the American public is becoming more obese. Despite the increasing national recognition of obesity as a major health disorder, many federal courts have not made obesity a basis for discrimination or even as a basis for establishing a violation of the ADA. Up to now, courts have not found that obese employees suing under the ADA were able to establish an underlying disorder causing that employee to be overweight, and thus the employee could not establish that he was otherwise regarded as impaired as that term is defined under the ADA. The requirement of impairment is a key component of demonstrating a viable ADA claim.

On this issue, the Sixth Circuit and Eighth Circuit Federal Court of Appeals recently ruled that the fact that someone is obese does not, in and of itself, demonstrate impairment thus establishing a violation of the ADA. The Equal Employment Opportunity Commission has similarly rejected the argument that obesity fails to qualify as a disability under the ADA. The EEOC has reiterated several times that weight does not qualify as a disability unless the employee's weight is outside of a normal range AND results from a psychological disorder. 

On March 5, 2018, the United States District Court for the Northern District of Illinois in Shell v. Burlington Northern Santa Fe Railway Company( "Burlington"), Case No: 15-cv-11040 suggested that liability could attach to an employer where an employer failed to regard an obese individual as disabled otherwise in violation of the ADA. In this matter, the factual record before the court indicated that Burlington had maintained a policy prohibiting employees with a body mass index of over 40 from holding safety-sensitive positions. This policy was grounded on Burlington's beliefs that such individuals are at a substantially higher risk of developing medical conditions that can cause incapacitation or impact cognitive processes.

The Plaintiff, Ronald Shell who had a BMI of over 40 had applied for a position of an intermodal equipment operator. In that position, Shell would have been responsible for operating heavy equipment. This particular position, however, fell into Burlington's safety-sensitive position category. As a result of Shell's exceeding the stated BMI limits of Burlington and the fact that the position fell into the category of "safety-sensitive" Shell's conditional job offer was withdrawn. Shell then commenced suit in the federal district court for Northern Illinois claiming a violation of the ADA. Burlington then moved to dismiss the case by way of summary judgment.

Burlington supported its motion for summary judgment with existing federal appellate authority to support the argument that obesity, in and of itself, was not a condition for which the ADA provides relief. In her decision, Federal District Court Judge Sharon Johnson Coleman acknowledged the fact that existing federal law supported Burlington's legal position, and also, as a matter of record in the case, the Court found that Burlington, consistent with existing federal authority, did not regard obesity as a disability.

However, the Court stated that although obesity, by itself, may not create a disability covered by the ADA the resulting conditions of obesity such "sleep apnea, diabetes or heart disease" that causes incapacitation is to be considered a disability and, by extension, is potentially covered under the ADA. Judge Coleman stated, "Here, the undisputed evidence that individuals with Class II obesity are at a "substantially higher" risk of developing a number of medical conditions, including heart disease, diabetes and sleep apnea, and that those conditions "frequently manifest" as sudden incapacitation or serious impairment of alertness or cognitive function." As a result, the Court denied Burlington's motion for summary judgment and, by so doing, left open the door to the possibility that the resulting conditions of obesity may be conditions otherwise covered under the ADA. 

At this point, the Shell Case will move along to trial for final adjudication. No matter what the result at trial, and given the novel issues in the case, it is likely that the case will be appealed by one or both parties to the Seventh Circuit Federal Court of Appeals. Given the epidemic of obesity in America, issues relating to obesity will, unfortunately, continue to remain front and center in our national and legal discussion. In the interim, employers are well-advised to continue to use caution in how they determine if and when obesity is a covered condition under the ADA. As more medical evidence accumulates regarding the various conditions of obesity the expansion of mental and physical conditions stemming from obesity is likely to expand. If your business would like more insight as to this potentially changing area of the law, call the Katz Law Group at 508-480-8202 for further information.