Obese worker not ADA-protected

CINCINNATI—Employees who are morbidly obese do not have discrimination protection under the Americans with Disabilities Act unless there is an established physiological cause for their condition, a federal appellate panel says.

In its unanimous Sept. 12 ruling in Equal Employment Opportunity Commission vs. Watkins Motor Lines Inc., a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld a lower court's decision to dismiss the case.

The ruling held that since no physiological cause was offered for the morbid obesity of truck driver Stephen Grindle--on whose behalf the EEOC sued--he could not be considered to have a disability and pursue a discrimination claim under the ADA.

Under the federal law, employers are prohibited from discriminating against any qualified individual with a disability, which is defined as a "physical or mental impairment that substantially limits one or more of the major life activities of the individual."

Employees are also protected under the statute if they do not actually have a substantially limiting impairment, but are regarded by their employer as being disabled.

According to the court record, Mr. Grindle weighed 450 pounds when, while climbing a ladder at work, a rung broke and he sustained a knee injury. He subsequently was terminated after a company doctor determined he could not safely perform his job.

Mr. Grindle believed he was discharged because of his weight and registered a complaint with the EEOC.

In its opinion, the appellate panel said it agreed with a lower court's decision that morbid obesity may be an impairment under the ADA "where it has physiological cause," but that "nonphysiological morbid obesity" is not an ADA-covered impairment.

The EEOC argued that "an impairment may be shown by either: weight problems caused by a physiological condition, or morbid obesity (i.e. body weight more than 100% over the norm), regardless of the cause." However, the appellate panel cited a previous ruling in which "we repeatedly emphasized that a physical characteristic must relate to a physiological disorder in order to qualify as ADA impairment."

In a concurring opinion, Justice Julia Smith Gibbons said morbid obesity "as opposed to the general condition of being overweight may have a physiological cause. The EEOC, however, has put forth no evidence in this case either that Grindle's morbid obesity has a physiological cause or that morbid obesity, because of the nature of the disorder, always has a physiological cause. For this reason, the EEOC cannot defeat the motion for summary judgment" for dismissal.

EEOC may seek rehearing

Daniel T. Vail, an attorney in the EEOC's office of general counsel in Washington, said the agency is considering seeking a rehearing of the case before the full court. "We think there's solid basis in the law in prior rulings by both the 6th Circuit and other courts" that support the EEOC's position that "once a weight-related condition rises to a level of morbid obesity, then that's an impairment, and you don't need a physiological disorder accompanying that to qualify," said Mr. Vail.

Observers had mixed reactions to the ruling.

Frank Alvarez, an employer attorney with Jackson Lewis L.L.P. in White Plains, N.Y., said the decision "gives employers some reason to feel more comfortable about adopting positive solutions to potential workplace injuries or challenges to health care costs" without worrying about ADA discrimination charges.

However, Jon Coppelman, vp with Lynch, Ryan & Associates Inc., said the decision "raises more questions than it answers."

"Employers all across the country are struggling" with the issue of whether morbid obesity is protected under the ADA without any direct guidance from the courts, said Mr. Coppelman of the Wellesley, Mass.-based management consulting firm that specializes in workers compensation cost controls.

For instance, he said he learned recently of a morbidly obese hairdresser in her mid-60s who has been at the job for 20 years.

"You're probably looking at knee replacements and hip surgery, and the question becomes, what do you do? Do you leave her on the job" until these problems develop? "What happens when their obesity starts to impact their ability to perform the job?" If morbid obesity is ADA-eligible, the employer must try to reasonably accommodate them under the statute, Mr. Coppelman said.

If the situation involves a valuable employee, "you should try to accommodate them anyway, but you may reach a point where you say, 'Sorry, I can't do anything for you. Being overweight puts you at risk for injury, and you can't perform this job,"' Mr. Coppelman said.

Equal Employment Opportunity Commission, plaintiff-appellant, vs. Watkins Motor Lines Inc., defendant-appellant, 6th U.S. Circuit Court of Appeals, No. 05-3218