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Height as a disability: Employee advances claim based on short stature

July 9th, 2013  |  Kathy Kapusta

To paraphrase a line from an old Randy Newman song, short people got no reason to file a disability discrimination claim under the ADA. Or do they? In McElmurry v Arizona Department of Agriculture, a federal district court in Arizona has given employers yet one more reason to think twice before taking any adverse employment action.

In that case, the employee, who worked for the Arizona Department of Agriculture helping to combat the Asian citrus psyllid — a small insect — had a contentious relationship with her supervisor, who allegedly berated employees for not taking her calls at lunch; falsely accused the employee of making mistakes on her reports; and would not allow anyone to talk, listen to the radio, or use the restroom in the building. When she increased the employee’s bug screening quota despite her concerns about eye-strain, headaches, neck aches, and back pains, the employee declared her intent to file harassment charges.

The supervisor then accused the employee of sabotaging screening results, demoted her to field work, and forced her to drive a work vehicle despite the employee’s objection that she couldn’t drive it because of her small stature (she was approximately 4’10’’). The employee, who was fired after she was subsequently injured, sued for disability discrimination.

Not your typical impairment. The court first noted that a person is disabled within the meaning of the ADA if he or she suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Beyond this definition, the court pointed out, the ADA does not specify what impairments qualify. However, it noted, the EEOC has clarified that the definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal range.” Thus, the court observed, height is not a typical impairment.

Moreover, in Sutton v United Airlines, Inc, the Supreme Court stated 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, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.”

Outside “normal” range. Here, however, the employee alleged that her height was outside the “normal” range. While her employer, citing Sutton, contended that height can never be a disability, the court disagreed, stating that it was “unable to make such a conclusion on the very limited record before it.” Breathing life into the employee’s claim, at least for purposes of a motion to dismiss, the court found that it was plausible that “short stature” could, in some contexts, substantially limit one or more of an individual’s major life activities. Thus, the court rejected the employer’s contention that the employee could not demonstrate that her height was a disability.