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Despite media hype, AMA labeling obesity a disease is unlikely to change much

July 31st, 2013  |  Lorene Park

By Lorene D. Park, J.D.

Much has been made in the media of the American Medical Association recently adopting a policy recognizing obesity as a disease. Indeed, commentators have proclaimed that the policy would spur a “spate” of new suits, starting with Whittaker v America’s Car-Mart, Inc, a complaint filed July 19, 2013 (E.D. Mo.). Forget for a minute that the ADA has an administrative exhaustion requirement (meaning the plaintiff asserted his claim to an agency before the AMA’s announcement) and that the complaint does not refer to the AMA. Let’s assume he filed suit because his position was backed by the AMA. What does that change? Not much.

It is great that obesity discrimination is getting more press, and perhaps such plaintiffs will find support in the AMA’s labeling obesity as a “disease.” However, obesity discrimination suits have been around for years and the issues with which the courts have struggled in post-ADAAA cases are unlikely to change after the AMA’s announcement. Why? Because, with any impairment (including obesity), an ADA (or similar state law) plaintiff must show that it substantially limited one or more major life activities (or was regarded as such). And the assessment of whether a person is disabled must be done on an individualized basis, not based on a general conclusion by a national association.

Post-ADAAA cases already changing.

Significantly, the judiciary’s view on obesity discrimination has already been changing after the ADAAA’s enactment. Exploring the topic last year in a July 10, 2012 blog, I noted that, historically, obese employees had trouble asserting they were disabled unless they proved the obesity was caused by a physiological disorder. However, the ADAAA significantly broadened the definition of “disability,” and there have been results.

In one case, a plaintiff had a job offer rescinded due to the “health and safety risks associated with extreme obesity.” Looking to the ADAAA and EEOC interpretations, the Montana Supreme Court concluded that, under a similar state law, obesity that is not the symptom of a physiological disorder or condition may constitute a “physical or mental impairment” if the individual’s weight is outside “normal range” and affects “one or more body systems” as defined by 29 C.F.R. Sec. 1630.2(h)(1) (BNSF Railway Co v Feit, July 6, 2012). In an Illinois case, a federal court denied an employer’s motion to dismiss an ADA claim based on the allegation that the employer failed to accommodate an employee’s obesity and osteoarthritis by providing him assistance with physical labor (Budzban v DuPage County Regional Office of Education, January 14, 2013). In light of these and similar cases, it is clear that the issue isn’t whether an employee’s obesity is a “disease” but whether it substantially limits a major life activity or is regarded as such and not much will change in the ADAAA analysis after the AMA announcement.

Weight as protected category?

Quite apart from the question of whether obesity is a disability covered by the ADA, I would like to see more discussion from commentators on whether discrimination based on weight should be prohibited generally (e.g., under Title VII). Currently Michigan is the only state to make it illegal to discriminate on the basis of weight yet this is a nationwide issue. For example, the Yale Rudd Center for Food Policy & Obesity at Yale University has reported that overweight people:

  • earn less than non-overweight people in comparable positions;
  • get fewer promotions;
  • are viewed as lazy, less competent, and lacking self-discipline by employers and coworkers; and
  • can be fired, suspended, or demoted because of their weight, despite good job performance and even though weight is unrelated to their job responsibilities.

Furthermore, an article published by the Rudd Center shows that the prevalence of reported weight discrimination among obese individuals nationwide has increased by 66% over the past decade and is now comparable to rates of racial discrimination in the United States, especially among women.

Sex-plus discrimination?

Those are pretty serious numbers and I think worthy of further discussion. Indeed, I’m just waiting for one creative attorney to take these numbers (and the conclusion that weight discrimination is more prevalent against women) and argue that an employer’s policy of discriminating against obese individuals has a disparate impact on women. Perhaps such an attorney might also assert a “sex-plus” discrimination suit.