Obesity Definition Set to Expand under the ADA
East Tennessee Medical News – January 2010
By Jennifer Pearson Taylor and Ian P. Hennessey

Is obesity considered a disability?  According to the CDC, cases of obesity continue to rise in the United States.  Nevertheless, the courts and the EEOC have long maintained that simple obesity is not a recognized impairment under the Americans with Disabilities Act (“ADA”) unless the obesity was the result of physiological impairments.  However, recent amendments to the ADA may cause obesity to be reclassified as a disability.

How is “obesity” defined?
According to the guidelines published by the National Heart, Lung, and Blood Institute (“NHLBI”), the clinical definition of obesity is a body mass index (“BMI”) of
³ 30 kg/m2.  Currently, the EEOC recognizes “morbid obesity” as a body weight more than 100% over normal body weight.  The courts have recognized that a morbidly obese person may be disabled if the obesity substantially limits one or more major life activities.

Could the ADAAA change the way obesity is treated in the workplace?
Maybe.  The 2008 ADA Amendments Act (“ADAAA” or “Act”) rewrote the definition of “disability” such that it will now be construed in favor of broad coverage to the maximum extent permitted by the Act, and the determination whether an individual has a disability should no longer demand extensive analysis.  The ADAAA rejected the holdings of several U.S. Supreme Court decisions and portions of the EEOC’s prior ADA regulations.  Under the ADAAA, obesity-related health conditions, and perhaps even obesity itself, may now be recognized as disabilities under the significantly expanded protections of the Act. 

Has the EEOC provided any guidance interpreting the ADAAA?
It is in the process.  On September 23, 2009, the EEOC published its notice of proposed regulations to implement the provisions of the ADAAA.  This notice was published for public comment.  Once this process is complete, it is possible that obesity will become a protected disability under the EEOC’s regulations, requiring employers to reasonably accommodate the condition.

What do the EEOC proposed regulations provide?
To be consistent with the provisions of the ADAAA and Congress’ expressed expectation of the interpretation of the Act, the proposed EEOC rule:

• Provides for a broad interpretation of the definition of “disability”;
• Revises the EEOC regulations defining the term “substantially limits” by providing that a limitation need not “significantly” or “severely” restrict a major life activity in order to meet the standard and by deleting certain language to effectuate Congress’ clear instruction that “substantially limits” is not to be construed to require the “level of limitation, and the intensity of focus” applied by the Supreme Court in prior cases;
• Expands the definition of “major life activities” through two non-exhaustive lists;
• Provides that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
• Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity;
• Provides that actions based on an impairment include actions based on symptoms of an impairment;
• Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

How will overweight employees be able to make ADA claims?
The ADA protects employees and applicants from discrimination based on actual disabilities and also based on the employer’s perception that the individual is disabled.  This perception is referred to as “regarded as” claims because an individual may be able to maintain a claim that, although they were not actually disabled, they were regarded as being disabled by an employer, i.e., having an impairment, including morbid obesity in the past and now possible simple obesity or obesity-related health conditions, that limits major life activities.

Did the ADAAA make “regarded as” claims easier or harder to make?
Somewhat easier.  Under the ADAAA, an individual does not need to establish that the disability he or she is regarded as having is a qualified disability under the ADA.  All that is required under the ADAAA is a showing of discrimination because of an actual or perceived physical or mental impairment.  Thus, if the person is perceived as limited because of his/her weight, the person might be able to satisfy the Act’s requirements even if obesity or simply being overweight is not considered an impairment under the Act.

Are there any defenses to weight-related claims?
Yes.  If a weight requirement for employees is directly related to the essential requirements of the job, then an employer may be able to defend its weight-related policies.

Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice.