Employers firing Employees for being Obese

By: Alexandra Laird

According to the most recent data from the Center for Disease Control, more than one-third of American adults are obese.[1]  A person is considered obese when their weight is higher than what is considered as a healthy weight for a given height.[2]  With obesity impacting such a large portion of the American public, employers are left with many questions regarding their responsibilities to obese applicants and employees.[3] The answers to these questions depend on a number of factors, including the reasons underlying obesity and the jurisdiction in which the employer does business.[4]

In the recent decision of Richardson v. Chicago Transit Authority, the Seventh Circuit held that obesity is not a protected disability under the Americans with Disabilities Act (ADA) unless a plaintiff can demonstrate that it is caused by an underlying physiological disorder or condition.[5] The holding brings the Seventh Circuit in line with decisions on the issue from the Second Circuit, Sixth Circuit, and Eighth Circuit.[6] However, the First Circuit has reached the opposite conclusion, holding, based on expert testimony presented at trial, that morbid obesity, independent of an underlying physiological disease or disorder, can be a physical impairment under the ADA, and taking the position that a jury should decide the issue.[7]

The facts of this case are as follows: Mark Richardson was a full-time bus operator for the Chicago Transit Authority (hereinafter CTA) when his weight increased from 350 pounds to 566 pounds.[8] In February 2010, Richardson took leave from work because he became ill with the flu. After seeing a medical provider, the doctors determined that Richardson should not return to work until he gained control of his blood pressure.[9] The CTA then classified Richardson as medically unfit to perform the essential functions of his job.[10] In September 2010, CTA’s third-party medical provider deemed Richardson fit to return to work and concluded that Richardson could drive CTA’s buses safely.[11]However, they did note several safety concerns. Later CTA concluded that it would be unsafe for Richardson to operate a bus, it classified him as medically unfit again. Eventually, CTA terminated Richardson’s employment in February 2012.[12]

Richardson’s argument was that his obesity was a protected disability under the ADA following the passage of the ADA Amendments Act (hereinafter ADAAA) because of the expansion of the terms “substantially limits” and “major life activity”.[13]  Richardson also argued that he had a “perceived disability”, but this argument failed because he did not introduce evidence that any individual at CTA believed a physiological disorder or condition caused his obesity.[14]

Richardson filed suit under the ADA against CTA, alleging that CTA had unlawfully refused to allow him to return to work because it regarded him as too obese to work as a bus operator.[15] Ultimately, the district court granted CTA’s motion for summary judgment, finding that Richardson had not presented evidence that an underlying physiological disorder or condition had caused his obesity.[16] The court relied on the definition of physical or mental impairment found at 29 C.F.R. § 1630.2(h)(1) to conclude that absent evidence of an underlying physiological disorder or condition, the court declined to recognize obesity as a disability protected by the ADA.[17]

Employers may want to keep in mind that state and local laws may define “disability” differently than the ADA. For example, a state law may not require that an impairment result from a physiological disorder.[18] Thus, while obesity may not qualify for legal protection under the ADA, it may be a protected category under a local jurisdiction.[19]   

Since the holding in Richardson v. CTA, psychological disorders or conditions may be looked at to determine if obesity will be considered a disability under the ADA. But first, one main disorder/condition stated by the Center for Disease Control is that there is a significant relationship between obesity and mental illness.[20] Depression can lead to obesity but conversely obesity can lead to depression.[21] This makes it difficult to understand how the psychological disorders may be measured to determine this standard.[22]

Some other examples according to the World Health Organization, is patients with a history of attention-deficit/hyperactivity disorder (hereinafter ADHD) have a greater chance of becoming obese.[23] The reasons cited for the link between obesity and psychiatric problems are unsurprising: poor self-image, physical inactivity, the biological disruptions caused by obesity, and the social stigma related to being overweight all contribute to a predisposition to mental illness.[24]

Lastly, there are many medications involved that treat psychological issues and conditions. Many medications to treat serious mental illness also have a side effect of weight gain, which again leaves us with another gray area to consider.[25]

[1] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019) https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

[2] Id.

[3] Id.

[4] Id.

[5] Richardson v. Chi. Transit Auth., 926 F.3d 881 (7th Cir. 2019).

[6] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019) https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

[7] Legault, Does Obesity Qualify as a Disability Under the ADA– Depends Who You Ask, Squire Patton Boggs (April 11, 2019)https://www.employmentlawworldview.com/does-obesity-qualify-as-a-disability-under-the-ada-it-depends-on-who-you-ask-us/.

[8] Richardson v. Chi. Transit Auth., 926 F.3d 881 (7th Cir. 2019).  

[9]  Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Hobbs & Dill, United States: Obesity Alone Is Not an ADA-Protected Disability in the Seventh Circuit, Ogletree Deakins (Nov. 7, 2019) https://ogletree.com/international-employment-update/articles/november2019/united-states/2019-11-07/united-states-obesity-alone-is-not-an-ada-protected-disability-in-the-seventh-circuit/.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Davies, Mental Illness and Obesity, Psychiatry Advisory (Feb 26, 2016) https://www.psychiatryadvisor.com/home/conference-highlights/aaic-2015-coverage/mental-illness-and-obesity/.

[24] Id.

[25] Littleberry, Obesity and Mental Health: Is there a link? OAC (2017)

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