Does This Bus Stop at ADA Street?: Obesity Not an ADA “Disability” Unless Caused by an Underlying Physiological Condition

By: Attorney Sven W. Strutz – Weld Riley, S.C.

The phrase “America’s Obesity Epidemic” gets a lot of play in the press.  However, regardless of whether obesity constitutes a “disease” and an “epidemic” from a medical perspective, obesity does not—standing alone—constitute a “disability” from the perspective of federal antidiscrimination law in the Seventh Circuit [which covers Wisconsin, Illinois, and Indiana].  This is the rule even in cases of “extreme” obesity.

In a recent decision, Richardson v. Chicago Transit Authority [available here:] the Seventh Circuit Court of Appeals held that, for purposes of the Americans with Disabilities Act (ADA), obesity is an actionable disability only if it is the result of an underlying physiological disorder or condition.  With its ruling in Richardson, the Seventh Circuit joined the Second, Sixth, and Eighth Circuits, each of which had previously reached the same conclusion.

The Richardson case arose out of the termination of an obese bus driver.  Since 1993, Mark Richardson had worked as bus driver employed by the Chicago Transit Authority (CTA).  During that time, Richardson’s weight fluctuated but was as high as 566 pounds at one point.  He had additional medical issues, including hypertension and sleep apnea.  However, there was no evidence “suggesting an underlying physiological disorder or condition caused his extreme obesity.”

CTA had some safety concerns with Richardson’s driving:  his body hung off the driver’s seat, he cross-pedaled (meaning that he kept one foot on the gas and one foot on the brakes at all times), he was unable to make hand-over-hand turns, and he could not see the floor of the bus from his seat.  The bus manufacturer had indicated that the maximum allowable weight for a driver would be 400 pounds and Richardson exceeded that maximum.

CTA did not immediately terminate Richardson’s employment.  Instead, it proposed transferring him and allowing him to work with doctors in an attempt to lose weight.  In exchange, the proposal would have had Richardson waive his ability to bring certain employment claims against CTA.  Richardson rejected the proposed agreement.  Nonetheless, CTA transferred him to an assignment for employees who had been found medically unfit.  After almost two years of inactive status, CTA requested that Richardson submit medical documentation that would allow him to continue his inactive status for another year.  Richardson failed to submit the documentation and CTA terminated him. 

Richardson brought suit alleging that CTA had violated the ADA.  The United States District Court for the Northern District of Illinois dismissed the case on summary judgment.  That dismissal was ultimately upheld by the Seventh Circuit Court of Appeals.  The central legal issue on appeal was “whether [Richardson’s] extreme obesity—even without evidence of any underlying physiological condition—meets the definition of physical impairment and is thus actionable for ADA purposes.”

The ADA defines “disability” as:  “(A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of having such an impairment; or (C) being regarded as having such an impairment.”  The Equal Employment Opportunity Commission (EEOC) defines “physical impairment” 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.”

On appeal, Richardson’s argument focused on a relatively recent statutory amendment to the ADA and on interpretive guidance set forth by the Equal Employment Opportunity Commission (EEOC).

First, Richardson invoked 2008’s Americans With Disabilities Amendments Act (ADAAA), which was intended by Congress to ensure that the ADA’s “definition of disability [would be] construed in favor of broad coverage.”  The ADAAA was passed in response to certain Supreme Court decisions which, in Congress’s view, interpreted the ADA too narrowly.  However, in enacting the ADAAA, Congress only addressed the Supreme Court’s treatment of the “substantially limits a major life activity” element of a disability claim.  “[Congress] said nothing about judicial interpretation of impairment.”  The Seventh Circuit cited legislative history, stating the Congress expected that the EEOC’s definition of “physical and mental impairment” “would not change” as a result of the ADAAA.

Second, Richardson relied upon the EEOC’s interpretive guidance which says:  “The definition of 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.”  Richardson read the two components of this guidance to mean:  “impairment does include the physical characteristic of weight if either of the following elements are true:  (1) the weight is not within the normal range; or (2) the weight is the result of a physiological disorder.”  However, the Seventh Circuit disagreed with this reading of the EEOC guidance, concluding that “a more natural reading” would be that an individual’s weight “qualifies as a physical impairment only if it falls outside the normal range and it occurs as a result of a physiological disorder.”  But more fundamentally, the Seventh Circuit ruled that if Richardson’s reading was correct then the EEOC guidance would be overly broad under the ADA—the courts “do not defer to EEOC guidance that is contrary to the text of the regulation it purports to interpret.”  The bottom-line is this:  “It is directly contrary to [29 C.F.R. § 1630.2(h)(1)’s definition of ‘physical impairment’] to consider a physical characteristic such as weight, even if outside the ‘normal range,’ a physical impairment absent evidence of an underlying physical condition.”

Nonetheless, employers must be cautious.  If the facts of the Richardson case were a bit different, the outcome would be radically different.  The lack of evidence that Richardson had an underlying physical condition is the key component of the Seventh Circuit’s decision.  “We need not decide whether, on a particular evidentiary showing, extreme obesity alone can be considered a physiological condition because Richardson presented no such evidence.”  As an example, the Richardson decision cites a First Circuit case in which a plaintiff’s “morbid obesity” could constitute a “physical impairment” because she presented expert testimony her obesity was caused by a dysfunction of the metabolic system and the neurological appetite-suppressing signal system. 

To return to the widespread consensus in the medical community that “obesity is in and of itself a physiological disorder,” the Seventh Circuit concluded:  “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.”