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BMI, ADA and disability discrimination

February 25th, 2016  |  Kathy Kapusta

Body Mass Index, or BMI, is a height-to-weight ratio calculated by dividing body weight in kilograms by height in meters squared. The most common way to find out whether you’re overweight or obese, at least according to the National Institutes of Health, is to figure out your BMI, which estimates body fat and gauges your risk for diseases that occur with more body fat.

While this might be a useful tool for the medical profession, is it something that can or should be used by employers? In two recent decisions issued less than a month apart, federal courts in Washington and Nebraska have provided some interesting insight.

Truck driver required to submit to sleep study based on BMI. In the first of those decisions, a federal court in Nebraska found that an over-the-road trucking company that required all of its drivers with a BMI of 33 or greater to complete a sleep study did not violate the ADA when it placed a driver who refused to undergo the study on “out of service” status. After acknowledging the relatively few cases analyzing broadly applicable medical-examination policies under the ADA, the court found the policy was job-related, vital to the employer’s business, and no broader or intrusive than necessary.

Because of his size. After the company began rolling out its sleep apnea policy, the employee’s manager asked if he used a CPAP machine, a medical device used to treat obstructive sleep apnea (OSA). The manager also scheduled the 6’5,” almost 300-pound employee for a sleep study “because of his size,” requiring him to take the study as a condition of continued employment.

Out of service. Although his medical provider suggested it was not necessary for him to have the sleep study, the company placed him on “out of service” status when he refused to show for his appointment. He subsequently sued, alleging that his employer discriminated against him under the ADA by requiring him, and all other truck drivers with a BMI of 33 or above, to undergo a sleep study as a condition of continued employment; by asking him if he used a CPAP to treat OSA; and by regarding him as having an impairment.

Medical exam. The ADA provides that “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Noting that this provision applies to all employees, whether or not the employee has an actual disability, the court observed that most case law interpreting this provision involves medical testing of employees who have exhibited symptoms or behaviors that cause their employers to question their fitness to perform their jobs. Here however, the employer had a broad, mandated medical-examination policy applicable to a defined class of employees—those with a BMI of 33 or greater.

Job-related. In finding the policy to be job-related, the court observed that physician witnesses for both parties established that BMI is strongly associated with OSA and that OSA would qualify as a respiratory dysfunction under applicable DOT regulations. The company’s sleep apnea policy was heavily related to the ability of its drivers to lawfully continue to drive under DOT regulations and was thus job-related under ADA.

Business necessity. Further, the company had a vital interest in maintaining the safety of its drivers, the cargo it carried for its customers, and the public, observed the court, pointing out that the potential danger posed by a truck driver asleep at the wheel “is obvious and undisputed.” Noting evidence that OSA can cause driver fatigue, that the biggest predictive factor of OSA is obesity, that obesity can be objectively measured by calculating one’s BMI, and that a sleep study is the “gold standard” for diagnosing OSA, the court found the company’s sleep apnea policy and related inquiries served to directly confirm or rule out OSA for a narrowly defined class of employees who met an objective BMI standard. Thus, the policy was not broader or more intrusive than necessary to achieve its business necessity of keeping its drivers, cargo, and the public safe.

Obese applicant denied job based on BMI. Although the second decision arose under the Washington Law Against Discrimination, because it was silent on whether and under what circumstances obesity can be considered an impairment, the federal district court in Washington looked to the ADA, and the regulations and case law interpreting it, for guidance.

The court found that a plaintiff alleging disability bias based on obesity must show that the obesity is caused by a physiological condition or disorder, or that the defendant perceived it as having such a cause. Because an applicant whose job offer was rescinded based on his high BMI showed only that the prospective employer perceived him as obese and as being prone to developing certain physiological disorders in the future, the court granted summary judgment against his disability discrimination claim.

The plaintiff was conditionally offered a job as an electronic technician with a railroad. When a medical exam revealed a BMI of 41.3, the railroad’s medical officer told him he could not determine his medical qualification for the position due to significant health and safety risks associated with extreme obesity. He was also told he could “permit further evaluation” of his “health status and risks” by submitting a sleep study, a medical report documenting various “cardiac risk factors,” an exercise tolerance test, hip and waist measurements performed by a physician’s office or athletic facility, and the complete VA disability determination. Alternatively, he would be considered for the job if he lost 10 percent of his weight and maintained that weight loss for at least six months. He subsequently sued, asserting disability discrimination claims under the WLAD.

Obesity. While the majority of courts that have addressed the question of  whether and under what circumstances obesity qualifies as a disability under the ADA have found that obesity is a disability only when it is the result of a physiological condition or disorder, others have concluded that obesity is a disability when it stems from a physiological disorder or condition, or when it is sufficiently extreme, such as when the plaintiff’s weight is (or is perceived as being) 100 percent greater than the norm. Still others have suggested that obesity discrimination claims may lie when the employer believes the plaintiff’s weight constitutes a disability.

Finding the majority position most persuasive, the court noted that the EEOC’s guidance accompanying the ADA regulations explains that “It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments,” and that “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 and are not the result of a physiological disorder.”

Perceived as “physiological” obesity? As to the plaintiff’s suggestion that an employer may perceive an obese applicant as disabled if it believes the applicant’s weight constitutes an impairment, the court found that the railroad could not perceive him as disabled unless it perceived him as suffering from something that was a “physiological disorder or condition” within the meaning of the statute. If it instead perceived him as having something that was merely a characteristic under the statute, it was irrelevant that it believed such characteristic affected his bodily systems and made him prone to developing future disorders.

Believing that the Washington Supreme Court would follow the majority approach as more consistent with the statutory and regulatory language of the ADA, and that language was substantially the same in all relevant respects as corresponding language in the WLAD, the court found that the plaintiff’s claim failed. He did not show that his elevated BMI was caused by a physiological condition or disorder, or that the railroad perceived his BMI as stemming from either source.