Obesity Not a Disability Under ADA Absent Underlying Physiological Problem
In a case involving a severely heavyset employee, the 7th Circuit recently decided obesity isn’t a disability protected by the Americans with Disabilities Act (ADA) unless there is an underlying physiological disorder. Further, the court found no evidence the employee had been perceived as disabled.
Mark Richardson joined the Chicago Transit Authority (CTA) in 1993 and worked as a full-time operator from August 1999 until February 2012. According to a CTA doctor, Richardson weighed 566 pounds in May 2009. Based on his body mass index (BMI), he falls in the “extreme” obesity range whenever he weighs more than 315 pounds. He also suffers from hypertension and sleep apnea.
Beginning in early February 2010, Richardson was absent from work with the flu. He attempted to return on February 19, but the CTA’s third-party medical provider, AOMS, documented that he had uncontrolled hypertension and influenza, weighed more than 400 pounds, and couldn’t return to work until he controlled his blood pressure. For that reason, on April 9, the CTA’s disability review committee transferred him to temporary medical disability.
On September 13, 2010, AOMS examined Richardson’s fitness to return to work. It found him “physically fit to work as a bus operator,” but indicated he “must be cleared by safety prior to operating [a] bus.” The CTA requires AOMS to report if a bus operator returning from extended leave weighs more than 400 pounds because the system’s bus seats aren’t designed to accommodate drivers weighing that much.
Weighing more than the maximum, however, doesn’t automatically disqualify employees from working as bus operators. The CTA permits those individuals to operate buses if the safety department finds they can safely perform the job. To make that determination, the employer administers a “special assessment”—a driving performance test used to determine whether bus operators can perform all standard operating procedures on six types of CTA buses.
On September 16, 2010, Richardson completed a special assessment. Bus instructors John Durnell and Elon McElroy administered the test. During the assessment, the two instructors joked about Richardson’s weight. Durnell testified he was just trying “to lighten up the situation” and asserted that in response, Richardson “started laughing and he started to relax.” Durnell was reprimanded for unprofessionalism.
After the assessment, Durnell and McElroy each completed a report. While Durnell concluded Richardson “can drive all of CTA’s buses in a safe and trusted manner,” both instructors noted several safety concerns:
- Richardson cross-pedaled, meaning his foot was on the gas and the brake at the same time;
- He was unable to make hand-over-hand turns;
- His leg rested close to the door handle;
- Richardson couldn’t see the bus floor from his seat;
- Part of his body hung off the driver’s seat; and
- The seat deflated when he sat.
Additionally, both instructors noted Richardson wore a seat belt extender, was “sweating heavily,” and needed to lean onto the bus for balance, and Durnell commented on a “hygiene problem.” At his deposition, McElroy testified that as a “former heart patient,” he was worried Richardson’s “sweating [could] lead to an episode.”
Marie Steward, the CTA’s acting manager of bus instruction, drafted a memorandum to Earl Swopes, the vice president of bus operations, concluding: “[B]ased on the Bus Instructors[’] observations and findings, the limited space in the driver’s area and the manufacturer requirements, it would be unsafe for Bus Operator Richardson to operate any CTA bus at this time.”
Instead of immediately firing Richardson, the employer proposed a written agreement: The CTA would transfer him back to temporary medical disability so he could work with doctors to lose weight and be subject to periodic monitoring; in exchange, he would waive his ability to file various legal claims. Richardson refused. In March 2011, the employer nevertheless transferred him to temporary medical disability. An accompanying form explained he “exceeded the weight requirement to operate the bus.”
In October 2011, the CTA informed Richardson he was approaching two years of inactive status and, per organization policy, could extend his time in temporary medical disability for one year by submitting medical documentation. He didn’t submit the documentation, and in February 2012, the employer terminated him. He filed a claim with the Equal Employment Opportunity Commission (EEOC).
District Court’s Decision
Richardson received a right-to-sue letter from the EEOC and filed a lawsuit on March 10, 2016, alleging the CTA violated the ADA by “refus[ing] to allow [him] to return to work because it regarded him as being too obese to work as a bus operator.” On October 17, 2016, the district court denied the employer’s request for dismissal, ruling that “even if [Richardson] is ultimately required to prove that his obesity was caused by a physiological disorder, he isn’t required to allege the same.”
On April 20, 2017, both parties asked for summary judgment (or dismissal without a trial), and on November 13, 2017, the district court granted the employer’s request. Based on the ADA’s language and the pertinent EEOC regulation and interpretive guidance, the court said Richardson would have to show his “severe obesity is caused by an underlying physiological disorder or condition” before it could qualify as a protected physical impairment. Because he had presented no such evidence, the district court entered judgment in the CTA’s favor.
7th Circuit’s Decision
The ADA defines “disability” as (1) a physical or mental impairment that substantially limits one or more of an individual’s major life activities, (2) having a record of such an impairment, or (3) being regarded as having one. Richardson focused his claim on the “regarded as” prong. He needed to show he was subjected to a prohibited employment action “because of an actual or perceived physical or mental impairment whether or not [it] limits or is perceived to limit a major life activity.”
At issue was whether he could demonstrate either (1) his extreme obesity is an actual impairment or (2) the CTA perceived it to be an impairment.
The 7th Circuit found Richardson didn’t present any evidence suggesting an underlying physiological disorder or condition caused his extreme obesity. His pulmonologist submitted a declaration stating the hypertension and sleep apnea were “related to” his obesity. However, there was nothing to suggest the hypertension or sleep apnea caused his obesity. Without that evidence, the appellate court was unable to conclude his extreme obesity was a physical impairment.
Similarly, the 7th Circuit found no evidence that Richardson was perceived to be disabled. He did introduce evidence the CTA took adverse action against him based on his excessive weight. For example, the employer transferred him because he exceeded the weight specifications for system buses. Additionally, it required him to take a special assessment because he weighed more than 400 pounds, not because of any violation of the system’s standard operating procedures.
Moreover, Stewart’s memorandum highlighted safety concerns directly related to Richardson’s weight: He couldn’t perform hand-over-hand turning, he cross-pedaled, he had diffculty getting in and out of the driver’s seat, his body hung off the seat, his leg was close to the door handle, and so on. But there was no evidence the CTA believed his excessive weight was caused by a physiological disorder or condition. Thus, there was no evidence the employer perceived him to be disabled. Richardson v. Chicago Transit Authority, Case No. 16-cv-03027 (June 12, 2019).
Disability issues are the most complex and difficult for employers to manage. The challenges are even more difficult when multiple factors are interrelated, such as high blood pressure, sleep apnea, and obesity.
The 7th Circuit has provided clarity for employers and employees dealing with obesity issues. Absent a physiological reason for the obesity, the ADA doesn’t consider it to be a disability. Employers could still be found liable, however, if you perceive an employee’s obesity to be an impairment.
Moreover, because Wisconsin law’s definition of a disability isn’t identical to federal law, you also may have to consider the Wisconsin Fair Employment Act (WFEA) when dealing with obesity challenges. Under the WFEA, there may be instances when obesity is a covered disability, even if not recognized under federal law.