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April 5 — A job applicant rejected for a railroad mechanic's job because of morbid obesity has no Americans with Disabilities Act claim because his weight wasn't caused by an underlying physiological disorder, the U.S. Court of Appeals for the Eighth Circuit has ruled.
Melvin Morriss, the rejected applicant, argued that BNSF Railway Co. violated the ADA, as amended, by withdrawing a job offer after pre-employment medical exams showed the 5-feet, 10-inch, 285-pound Morriss had a body mass index above 40. The Equal Employment Opportunity Commission as an amicus joined Morriss in contending that BNSF in May 2011 regarded the applicant as disabled within the meaning of the ADA Amendments Act, which took effect in 2009.
But the Eighth Circuit April 5 affirmed summary judgment for BNSF, saying the ADA Amendments Act didn't change existing EEOC regulations and case law regarding obesity as a potential disability.
The ruling is a “very good, straightforward reading” of the ADA and the relevant EEOC regulations and guidance, said Rae Vann, general counsel to the Equal Employment Advisory Council, an employers' association in Washington.
The court's decision “misconstrues the ADA, the [EEOC] regulations and even the EEOC’s interpretive guidance,” said Daniel Kohrman, a senior attorney for the AARP Foundation Litigation in Washington, which filed an amicus brief for Morriss.
Obesity isn't a “physical impairment” under the ADA unless it's a physiological disorder and affects a major body system, the court said. Since Morriss's weight wasn't the result of a physiological disorder, he can't show BNSF regarded him as having a physical impairment covered by the ADA, Judge Roger L. Wollman wrote.
Judges Myron H. Bright and James B. Loken joined in the decision.
Requiring an underlying “physiological condition” to find impairment is “critical” not only for obesity, but for other conditions that could form the basis of ADA claims, Vann told Bloomberg BNA April 5.
If the estimated 33 percent of the U.S. adult population defined as “obese” all could claim “impairment,” that seems “well beyond” what Congress intended, Vann said. The EEAC had filed an amicus brief supporting BNSF.
But the ADA Amendments Act “very significantly changed” the procedures for proving impairment, Kohrman told Bloomberg BNA April 5. Even if “serious obesity” isn’t necessarily a “disability” under the ADA, it’s “clearly” an impairment, he said.
In Morriss's case, an “extremely qualified” applicant whose current health was good nevertheless was denied a job solely because of his weight and the employer's fear of future health risks, Kohrman said. That's exactly the type of result the ADA Amendments Act was enacted to prevent, he said.
The statutory bar is set much lower for proving “impairment” than for proving disability, Kohrman said. For “regarded as” claims, the ADA Amendments Act requires an applicant to show only that the employer perceived him as having an impairment, not as “substantially limited” in a major life activity.
The court's decision “really could have an unfortunate impact” if other employers adopt the policies that BNSF used, Kohrman said. Allowing employers to reject applicants based on obesity also could have disproportionate adverse impacts based on age and race, he said.
The court also didn't really examine BNSF's assertion that the mechanic's position was “safety sensitive,” potentially relieving employers from having to prove the tougher ADA defense that an individual poses a “direct threat” to safety, Kohrman said.
To prevail on a regarded as disabled claim, Morriss must show BNSF perceived his obesity as a physical impairment, the Eighth Circuit said. The district court denied his claim that the railroad regarded him as having such an impairment when it rejected him for the mechanic's job because of the “significant health and safety risks” associated with obesity that registers 40 or more on the BMI scale.
Under the EEOC's regulations codified at 29 CFR Section 1630.2(h)(1), obesity isn't a physical impairment unless it's a physiological disorder or condition and affects a major body system, the Eighth Circuit said.
Morriss contended that the EEOC definition of physical impairment can't be read in isolation and must be considered in light of a separate EEOC interpretive guidance. That guidance, codified as an appendix to 29 CFR Section 1630.2(h), provides that impairment doesn't include “physical characteristics,” including weight, that are “within ‘normal' range and are not the result of a physiological disorder.”
Morriss said this language means an individual's obesity must be the result of a physiological disorder only if his weight is within “normal range.” He contended that since his weight was outside normal range, he didn't need to show an underlying physiological condition to prove impairment.
But Morriss's interpretation can't be sustained, the court said.
“[A] more natural reading of the interpretive guidance is that an individual's weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as a result of a physiological disorder,” the court said.
Both requirements must be met for an ADA physical impairment, the court said. “In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA,” Wollman wrote.
The statutory text and regulatory language as a whole make it clear that “to qualify as a physical impairment—and thus a disability—under the ADA,” obesity must result from an underlying physiological disorder or condition, the court said.
The only other federal appeals courts to rule on the issue — the Sixth Circuit in EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 18 AD Cases 641 (6th Cir. 2006) and the Second Circuit in Franics v. City of Meriden, 129 F.3d 281, 7 AD Cases 955 (2d Cir. 1997) — have reached the same conclusion, the court said.
Morriss argued the prior appeals court rulings are “inapposite” because they ruled before the ADA Amendments Act was passed. He cited post-2009 district court rulings that obesity is a physical impairment under the ADA, even absent an underlying physiological disorder or condition.
But Congress in the ADA Amendments Act didn't express “any disagreement with judicial interpretations” of the term “physical impairment,” the Eighth Circuit said.
Although Congress instructed the EEOC to revise its definitions of “substantially limits” and “major life activity,” it didn't require any agency modification of “physical impairment,” the court said. The EEOC's regulations on that point remained the same after the ADA amendments took effect, the court said. The pre-ADA Amendments Act case law regarding obesity remains “relevant and persuasive,” the court said.
The ADA Amendments Act stated an “over-arching policy objective” that Congress intended “broad coverage,” Morriss argued. But the act's policy goal is “constrained” by other statutory language that limits the intended coverage to “the extent permitted by the terms of the ADA,” the court said.
“Under both the ADA and the EEOC regulations and interpretive guidance, a ‘physical impairment' must be the result of an underlying physiological disorder or condition,” the court said. ‘The [ADA Amendments Act's] general policy statement cannot trump this plain language.”
Morriss argued that Congress intended that the ADA “threshold” question of whether an “impairment is a disability” shouldn't demand “extensive analysis.” That statement supports an extensive reading of the term “disability,” he said.
Although Congress may have expressed an intent to apply “a less rigorous standard” to whether an impairment “substantially limits a major life activity,” it left undisturbed the definition of impairment, the court said.
“[T]he EEOC's hoped-for less restrictive analysis of whether an impairment exists is cut from whole cloth, for an individual first must first establish that he has a qualifying impairment before the less ‘extensive analysis' is applied,” the court said.
The EEOC's argument in its amicus brief that the court should defer to the agency's post-ADA Amendments Act interpretation of “physical or mental impairment” also is misguided, the court said. The EEOC hasn't modified its regulations or interpretive guidance regarding those terms and “its contradictory position in this litigation is not entitled to deference,” Wollman wrote.
Marks Clare & Richards LLC and Dyer Law PC, both in Omaha, Neb., represented Morriss; Sattler & Bogen in Lincoln, Neb., and Thompson Knight in Dallas represented BNSF.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Melvin_A_Morriss_III_Plaintiff__Appellant_v_BNSF_Railway_Company_.
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