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A federal appeals court has punted the issue of whether morbid obesity per se is a protected disability under the Americans with Disabilities Act, but it may only be a matter of time before a federal circuit court says it is, many experts say.
So far, four circuit courts of appeal have held obesity can only be considered a disability if there is an underlying physiological condition.
Meanwhile, at least two state supreme courts, in Washington and Montana, have held that morbid obesity per se can be considered a disability, and more state courts are expected to follow.
Experts suggest employers in any case proceed cautiously in their dealings with obese workers.
The latest federal appeals court decision on the matter, Jose Valtierra v. Medtronic Inc., by the 9th U.S. Circuit Court of Appeals in San Francisco, upheld a ruling by the U.S. District Court in Phoenix.
Mr. Valtierra weighed 300 pounds when he began working for Fridley, Minnesota-based Medtronic Inc. in 2004 as a facility maintenance technician, and his weight increased to more than 370 pounds by 2014.
In May 2014, his supervisor noticed Mr. Valtierra seemed to be having difficulty walking and was using the elevator instead of the stairs. Concerned about his ability to do the job, the supervisor checked the computer system to see if his assignments had been completed.
Although Mr. Valtierra had left for vacation the day before, the computer indicated he had already completed 12 assignments that should have taken a more significant amount of time.
When confronted with this, Mr. Valtierra admitted he had not performed all the work, but that he intended to do so when he returned from vacation. Medtronic terminated him for falsifying the records.
Mr. Valtierra filed suit charging he had a disability under the ADA, and his termination was unlawful discrimination under the act.
The District Court dismissed the case, which was upheld by a unanimous three-judge appeals court panel in its Aug. 20 ruling. The U.S. Equal Employment Opportunity Commission, which submitted an amicus brief in the case on Mr. Valtierra’s behalf, “argues morbid obesity is plainly physiological in its effects and that numerous federal agencies have categorized it as a disease,” said the ruling.
“In this case, however, we need not take a definitive stand on the question of whether morbid obesity itself is an ‘impairment’ under the ADA because even if it was such an impairment, Mr. Valtierra would have to show a causal relationship between that and his termination.
“He is unable to do so,” said the ruling. “There is no basis for concluding that he was terminated for any reason other than Medtronic’s stated ground that he falsified records to show he had completed work assignments,” the appeals court said in affirming the lower court’s ruling.
Attorneys in the case did not respond to requests for comment.
Four other U.S. Circuit Courts of Appeal — the 8th in St, Louis, the 6th in Cincinnati, the 2nd in New York and the 7th in Chicago — have held obesity can be considered a disability only if it is caused by an underlying physiological condition.
In the Medtronic case, the employer “had a legitimate business reason” for terminating the employee that was not related to his obesity, said P. Gregory Valenza, a principal with the Shaw Law Group PC in San Francisco, who represents employers.
The court did not need to decide the obesity issue, “so they decided not to,” said Peter J. Wozniak, a partner with Barnes & Thornburg LLP in Chicago.
A federal court may eventually rule otherwise, though, say some observers.
With the increasing incidence of obesity, “there are probably going to be more claims associated with it, and for that reason, it’s quite possible that one court or another may take a different view,” said Frank C. Morris Jr., a member with Epstein Becker Green PC in Washington.
“It’s going to take at least one court to really take a leap to the other side of that fence,” which would create a circuit split and could lead to a U.S. Supreme Court ruling, said Nathan A. Schacht, counsel at Baker & Hostetler LLP in Denver, who represents employers. “It wouldn’t surprise me” if it was the 9th Circuit, which is considered more liberal and progressive than others, to do so, he added.
However, Myra K. Creighton, a partner with Fisher Phillips LLP in Atlanta, disagreed as to whether a federal appeals court is likely to rule the ADA covers obesity without a physiological condition.
The ADA’s definition of impairment “specifically requires a physiological condition,” she said.
Morbid obesity “doesn’t meet the definition of impairment” under the law unless that is present, she said.
Meanwhile, there is also the question of state law. In July, the Washington state Supreme Court held in Taylor v. Burlington Northern Railroad Holdings Inc. that “obesity qualifies as an impairment under the plain language” of the state’s antidiscrimination law because “it is recognized by the medical community as a ‘physiological disorder or condition’ that affects multiple body systems listed in the statute.” The case involved a morbidly obese railroad worker who had been terminated.
The Montana Supreme Court said in a 2012 ruling in BNSF Railway Co. v. Eric Feit that obesity that is not the symptom of a physiological condition may constitute a physical or mental impairment if an individual’s weight is outside a “normal range” and affects “one or more body systems.”
It is hard to predict how other state courts would rule on this issue because a decision would be based on their individual statutes, said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina, who represents employers.
She added there might be a “red state/blue state split” with the more conservative states saying obesity is not a disability.
Experts recommend employers engage in an interactive dialogue with workers who seek accommodations because of morbid obesity.
“Employers should hew to their normal accommodation process whenever an employee comes to them with anything,” said Mr. Wozniak.
“The soundbite, I guess, for employers is to continue to focus on how your employees perform, and less on what they look like,” said Alexander P. Berg, an associate with Kollman & Saucier PA in Timonium, Maryland.
“I don’t know if you want to be known as that employer who’s in the news for having a controversial termination related to someone who’s obese,” Mr. Schacht said.
Tackling obesity and weight-related health issues can improve a company's bottom line, but it takes more than a short-lived fitness program to see real results.