We have all seen the statistics. The waistlines of Americans are growing at a faster and larger rate than ever. Indeed, not only are Americans becoming more and more overweight, but the amount by which they are overweight is increasing at a rapid pace.
The growth of American waistlines is a concern facing our nation, and one that U.S. employers cannot ignore. Individuals who fall into the definition of morbidly obese often claim to be disabled under the Americans with Disabilities Act of 1990 (ADA) and seek job accommodations as a result. However, a recent decision from the U.S. Court of Appeals for the 6th Circuit raises a question as to whether a morbidly obese employee can obtain protection in the workplace under the ADA.
Morbid Obesity On The Rise
Obesity is defined as having a body mass index (BMI), which measures a person's weight in relation to height, of 30 or more. Morbid obesity, also known as clinically severe or extreme obesity, is defined as having a BMI of over 40 or more. Typically, morbidly obese individuals weigh 100 pounds or more above their ideal body weight.
Recent research shows that the number of Americans classified as morbidly obese is growing twice as fast as the number of Americans who are simply obese or overweight. According to the American Obesity Association (AOA), morbid obesity afflicts approximately nine million adult Americans, twice the number of individuals suffering from Alzheimer's and equal to the population of the state of Virginia. According to researchers, the rate of morbid obesity has increased in the last decade from 1 in 200 adult Americans to 1 in 50.
EEOC v. Watkins Motor Lines, Inc.
In 2002 the Equal Employment Opportunity Commission (EEOC) sued Watkins Motor Lines, Inc., claiming that the company violated the ADA when it discharged a morbidly obese employee, Stephen Grindle. Watkins had hired Grindle in 1990 as a driver/dock worker, a job that involved loading and unloading freight and a substantial amount of physical activity, including climbing, kneeling, bending, stooping, balancing, reaching and repeated heavy lifting. At the time of his hire, Grindle weighed approximately 345 pounds. During the next five years, his weight fluctuated between 340 and 450 pounds. Grindle, however, was unaware of any physiological or psychological cause for his weight gain.
In November 1995 Grindle sustained an on-the-job injury to his knee, resulting in time off from work. Under Watkins' policy, Grindle could be out of work for only a maximum of 180 days before being separated from his employment. Moreover, in order to return to work, Watkins required Grindle to provide an appropriate doctor's release.
After almost six months on leave, Grindle returned to Watkins with a release from his personal physician. Because Grindle's personal physician never reviewed Grindle's specific job demands, Watkins did not accept the release and allow Grindle to return to work. Instead, Watkins asked Grindle's personal physician to review the specific job requirements. After that request went unanswered, Watkins ordered Grindle to see an industrial clinic doctor. This doctor concluded that Grindle could not safely perform his job as a driver/dock worker because he had limited range of motion and was short of breath after only a few steps. As the doctor noted, the contributing cause for Grindle's physical limitations was his weight of 405 pounds.
Based on the industrial clinic doctor's conclusion, Watkins kept Grindle out of work until his 180 days of leave expired. At that point in time, Watkins discharged Grindle. Shortly thereafter, Grindle filed a charge of discrimination with the EEOC, claiming that the Company violated the ADA. The EEOC then decided to pursue a cause of action in federal court on Grindle's behalf.
The key legal issue in Grindle's case was whether his morbid obesity qualified him as disabled under the ADA. Interestingly, the EEOC did not claim that Grindle was actually disabled. Instead, the EEOC opted to classify Grindle as 'regarded as' disabled. This meant the EEOC had to prove that Watkins perceived Grindle as having a mental or physical impairment that substantially limited him in one or more major life activity. Stated differently, the EEOC had to show that (1) Grindle had a physical impairment, (2) Watkins knew of the impairment, and (3) Watkins believed that the impairment limited a major life activity when in fact it did not.
In examining the lower court's decision granting summary judgment for Watkins, the 6th Circuit looked solely at the first element - whether Grindle's morbid obesity qualified as an ADA impairment. Citing the applicable EEOC regulations, in particular 29 C.F.R.1630.2(h)(1) and 45 C.F.R.84.3(h), the court noted that an impairment is defined in pertinent part as 'any physiological disorder or condition.' Against the EEOC's urging, the court applied this definition to require evidence of a physiological cause to Grindle's morbid obesity before considering him impaired under the ADA. The court refused to simply assume that morbid obesity, regardless of the cause, qualified as a physical or mental impairment under the ADA. Because the EEOC did not produce any evidence demonstrating that Grindle's morbid obesity stemmed from a physiological condition, the 6th Circuit affirmed summary judgment for Watkins.
What Does This Mean for Employers?
The 6th Circuit's September 2006 decision is in line with previous dictates from the 1st and 2nd Circuits. It thus seems that before morbidly obese employees can claim ADA protection even under the 'regarded as' clause, they must first determine the cause of their own weight gain. Employers, however, should be wary before quickly dismissing an overweight employee's disability claim. Indeed, the 6th Circuit's decision in Watkins should not be read as sounding a death knell to morbid obesity as an actual or perceived disability under the ADA.
Morbid obesity can be caused by a variety of factors. Reported causes range from excessive caloric intake and lack of physical activity to metabolic dysfunction or thyroid disorders. Genetics also can play a key role in a person's ability to control his or her weight. For instance, morbid obesity can derive from a serious genetic condition known as Prader-Willi Syndrome, which involves the absence of chromosomal material and can lead to an uncontrollable appetite. Thus, determining whether a person's weight gain has a physiological cause is not easy. Employers should therefore be cautious before deciding not to grant obese employees any rights and protections afforded by the ADA, including that of a reasonable accommodation.
In Watkins the 6th Circuit did not touch on additional issues that employers may face with the increasing population of morbidly obese individuals. For instance, even if an employee's morbid obesity has a physiological cause, and thus is impaired under the ADA, the next question may become whether that impairment substantially limits a major life activity. Oftentimes, the usual limitations associated with obesity, such as difficult walking or lifting, are not substantial enough to qualify as a disability under the ADA.
However, other serious health conditions can bring a morbidly obese individual within the protections of the ADA. According to the AOA and medical practitioners, morbidly obese individuals often suffer from other medical conditions such as diabetes, hypertension, gallbladder disease, osteoarthritis, rheumatoid arthritis, heart disease, stroke, cancer and depression. Depending on the individual circumstances, one of these resulting conditions could lead an employee to qualify as actually disabled under the ADA, regardless of his physical weight.
In this regard, employers should examine their job positions and evaluate whether physical requirements, including any weight requirements, are reasonably related to the essential functions of the job. Employers should also inquire as to whether the particular individual employee can perform the essential job functions. If not, employers may need to determine whether a reasonable accommodation exists that would allow the morbidly obese employee to perform those essential job functions.
These requirements aside, employers should be careful not to create 'regarded as' disability claims. Employers should avoid making stereotypical assumptions about what job functions overweight or morbidly obese employees can perform or cannot perform. As indicated above, it is the 'regarded as' component of the ADA that led the EEOC to sue Watkins Van Lines and that has led to other court claims throughout the country. Appropriate education and training of managers and supervisors who may deal with overweight and potentially morbidly obese employees can go a long way towards avoiding exposure to such claims.
All in all, the ever-increasing waistlines of Americans are a growing concern that employers should no longer take lightly.
Christine Reinhard is Counsel in the Labor and Employment Practice Group of Akin Gump Strauss Hauer & Feld LLP in San Antonio.