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Without evidence of an underlying physiological disorder, obesity is not a physical impairment

By Kathleen Kapusta, J.D.

The bus driver failed to show that his extreme obesity was an actual impairment or that his employer perceived it as such.

Addressing for the first time whether extreme obesity, even without evidence of an underlying physiological condition, meets the definition of physical impairment and is thus an actual disability for ADA purposes, the Seventh Circuit, joining the Second, Sixth, and Eighth Circuits, held that without evidence a bus operator’s extreme obesity was caused by a physiological disorder or condition, his obesity was not a physical impairment under the plain language of the EEOC’s pertinent regulation. Nor could he show his employer perceived his obesity to be a physical impairment, said the court, affirming the grant of summary judgment against his ADA regarded-as disabled claim (Richardson v. Chicago Transit Authority, June 12, 2019, Flaum, J.).

The employee began working for the Chicago Transit Authority (CTA) as a temporary bus operator in 1993 and six years later, he became a full-time operator. By 2009, he purportedly weighed 566 pounds. He also suffers from hypertension and sleep apnea.

Area 605. In 2010, after he missed work due to the flu, CTA’s third-party medical provider documented that the employee had uncontrolled hypertension, weighed over 400 pounds, and could not return to work until he controlled his blood pressure. He was transferred to the temporary medical disability area (Area 605). Five months later, even though the third-party medical provider found the employee “physically fit to work as a bus operator,” he had to be cleared by safety before returning to work because CTA’s bus seats could not accommodate drivers weighing over 400 pounds.

Special assessment. He was required to undergo a “special assessment” with two instructors, who found he could drive all CTA buses in a “safe and trusted manner,” but noted safety concerns including that his foot was on the gas and brake at the same time, he could not make hand-over-hand turns, his leg rested close to the door handle, he could not see the floor from his seat, part of his body hung off the driver’s seat, and the seat deflated when he sat down. Both instructors also noted that he sweated heavily and needed to lean on the bus for balance.

Unsafe. After determining that it would be unsafe for the employee to operate any bus, CTA ultimately transferred him back to Area 605. He was terminated two years later when he failed to submit medical documentation necessary to extend his time there for another year.

He sued, alleging the CTA violated the ADA by refusing to allow him to return to work because it regarded him as being too obese to work as a bus operator. The district court granted summary judgment to CTA.

Impairment. Because the employee focused his claim on the ADA’s regarded-as prong, he had to show he was subjected to an adverse action because of an actual or perceived physical or mental impairment, the appeals court observed, and thus at issue was whether he could show his extreme obesity was an actual impairment or whether CTA perceived it to be an impairment. Although Congress has not defined impairment, the EEOC has defined it as: “Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”

Agreeing with the Second, Sixth, and Eighth Circuits, which have held, based on the language of 29 C.F.R. Section 1630.2(h)(1) that obesity is an ADA impairment only if it is the result of an underlying “physiological disorder or condition,” the court found that without evidence his extreme obesity was caused by a physiological disorder or condition, it was not a physical impairment under the regulation.

ADAAA. The employee argued that Congress passed the ADAAA to ensure the ADA’s definition of disability be construed in favor of broad coverage, and thus that courts must construe impairment to include extreme obesity even without evidence of an underlying physiological condition. The appeals court disagreed. Congress criticized the Supreme Court’s understanding of “substantially limits a major life activity” but said nothing about judicial interpretation of “impairment.” It also instructed the EEOC to alter its definitions of “substantially limits” and “major life activity,” but not its definition of “impairment,” and thus the EEOC did not modify its regulation defining impairment, which, the court pointed out, remains “inextricably tied to a ‘physiological disorder or condition.’”

EEOC guidance. The employee also pointed to the EEOC’s interpretive guidance, which states that the definition of impairment does not include physical characteristics such as weight that are within “normal” range and are not the result of a physiological disorder. Thus impairment, he argued, includes the physical characteristic of weight if either (1) the weight is not within the normal range, or (2) the weight is the result of a physiological disorder.

Unpersuaded, the appeals court, citing the Eighth Circuit, explained that “a more natural reading of the interpretive guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder.” Further, said the court, if it were to read the guidance as the employee suggested, even an employee with normal weight could claim a weight-based physical impairment if his weight was the result of a physiological disorder and an employee who was outside normal range would have a physical impairment even with no underlying physiological cause. Such results, said the court, are inconsistent with the ADA’s text and purpose and would lead to the regarded-as prong becoming “a catch-all cause of action for discrimination based on appearance, size, and any number of other things” far removed from the reasons the ADA was passed.

Medical community. And while patient and scientific professional organizations, as amici curiae, argued that both the medical community and federal and state policymakers believe obesity is a disease and is in and of itself a physiological disorder, and therefore a physical impairment under the ADA, the court disagreed. “The ADA is an antidiscrimination—not a public health—statute, and Congress’s desires as it relates to the ADA do not necessarily align with those of the medical community.” At bottom, said the court, the employee failed to show an underlying physiological disorder or condition caused his extreme obesity and without such evidence it could not find he had a physical impairment within the meaning of the ADA.

Perceived impairment. Nor could he show he was disabled because CTA perceived his obesity to be an impairment, said the court. Although there was evidence that CTA took adverse action against him based on his weight—he was transferred to Area 605 because he exceeded the weight specifications for CTA buses; he was required to undergo a special assessment because he weighed over 400 pounds; and CTA highlighted safety concerns directly related to his weight—there was no evidence anyone at CTA believed his obesity was caused by a physiological disorder or condition. To the contrary, the evidence suggested that CTA perceived his weight as a physical characteristic that made it unsafe for him to drive. “These facts do not permit a finding that CTA regarded [the employee] as disabled for purposes of the ADA.”

No evidence. Finally, the employee, citing the First Circuit’s opinion in Cook v. State of Rhode Island, Department of Mental Health, Retardation, & Hospitals, suggested that the court held a jury could find an employer perceived an employee’s extreme obesity as a physical impairment merely because the employer “stated concerns about the plaintiff’s ability to perform her job duties.” However, he read Cook too broadly, the Seventh Circuit observed. Critically, it pointed out, the Cook court emphasized that the plaintiff presented “expert testimony that morbid obesity is a physiological disorder,” and here, in contrast, the employee presented no such evidence.