This post considers the question of whether an employer can take an adverse action against an employee because that person is obese, or overweight. The issue was recently presented to me when a railroad signal employee was removed from his assignment because he exceeded an arbitrary weight limit imposed by a railroad due to safety concerns. The affected employee was forced into a different job, even though less senior employees held his preferred assignment.

There are only a few limited places that have passed laws that protect obese individuals from discrimination in the workplace, such as Michigan, the District of Columbia, San Francisco and Santa Cruz, California. There are no comparable federal laws. Obese workers who suffer discrimination have instead tried to bring cases under the Americans With Disabilities Act (ADA), arguing that they have been disabled by their obesity, or that their employers perceive them as disabled even though they are fully capable of doing their jobs. For the most part, such cases have failed.

The issue was considered most recently in the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co., a case brought by an individual applying for a position as a machinist with BNSF railroad. After being accepted for the job, Morriss was required to undergo a pre-employment physical. Although noting he was otherwise healthy, the railroad rescinded its job offer when Morriss was found to have a Body Mass Index (“BMI”) over 40. The railroad informed him that he was not “currently qualified…due to significant health and safety risks associated with Class 3 obesity.” Morriss sued the railroad under the ADA, arguing that he was discriminated against due to an actual disability, morbid obesity, or that the railroad regarded him as being disabled despite the fact that he was in good health.

The key issue in the case was whether obesity can be considered an “impairment” under the ADA. To be considered disabled, and therefore be afforded protections under the ADA, a person must have a “physical or mental impairment that substantially limits one or more major life activities…or [have been] regarded as having such an impairment.” The term impairment is discussed in the regulations implementing the ADA, and includes “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems…” The EEOC’s interpretive guidelines state that when considering conditions used as the basis for claims under the ADA, it “is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that that are not impairments. 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 within ‘normal’ range and are not the result of a physiological disorder.”

The court applied those provisions in Morriss and held that for obesity to be considered an impairment under the ADA, it must have resulted from an underlying physiological disorder, such as a metabolic or thyroid condition, as opposed to simply overeating or lack of exercise. Since Morriss stated during his physical examination that he was healthy, and didn’t suffer from an underlying condition that caused his obesity, the court found that he did not have an impairment under the ADA and dismissed his case. Other courts have used the same reasoning to dismiss ADA claims premised on obesity. See EEOC v. Watkins Motor Lines, 463 F.3d 436 (6^th Cir. 2006) (“to constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition”); Francis v. City of Meriden, 129 F.3d 281 (2^nd Cir. 1997) (“physical characteristics that are ‘not the result of a physiological disorder’ are not considered ‘impairments’ for the purposes of determining either actual or perceived disability”).

Except in very limited circumstances, railroads can set rules that discriminate against obese employees. The ADA does not generally apply when the underlying claim is premised on obesity. To date, the Supreme Court has not directly considered the issue.