Is Obesity A Protected “Disability” Under The ADA? The Seventh Circuit Says “Maybe.”

For the first time, the 7th Circuit has directly addressed the question of whether obesity is a “physical impairment” that qualifies as a disability under the ADA. Consistent with the Second, Sixth, and Eighth circuit courts’ holdings, the 7th Circuit held in Richardson v. Chicago Transit Authority that “obesity is an ADA impairment only if it is the result of an underlying physiological disorder or condition.”[1] Although this ruling clarifies that not every obese person is being protected under the ADA, it does leave the waters muddy for employers who must consider whether an employee’s obesity is caused by an underlying physiological disorder or condition before making employment decisions.

Mark Richardson worked as a full-time bus driver for Chicago Transit Authority (“CTA”) from August 1999 until February 2012. In February 2010, Richardson was absent from work due to the flu. Upon his return, CTA’s third-party medical provider documented that Richardson suffered from a variety of conditions, in addition to weighing more than the CTA bus seat limit of 400 pounds.[2] In April, CTA transferred Richardson to its Temporary Medical Disability-Area 605 (“605”), an area described as a budgetary assignment for employees found medically unfit for their job classification due to illness or injury. Although Richardson was given two years in 605 to prove his ability to operate the busses and to comply with the seat’s weight accommodation, he failed to do both. CTA offered to extend his time in 605 if Richardson submitted medical documentation. When he did not, CTA terminated his employment.

Richardson filed a lawsuit against CTA, alleging that it violated the Americans with Disabilities Act (“ADA”) by firing him for being too obese to operate a bus. The district court granted summary judgment for CTA, agreeing with its argument that Richardson had failed to show his obesity qualified as a protected physical impairment under the ADA. Richardson appealed the decision to the United States Court of Appeals for the Seventh Circuit.[3]

The Seventh Circuit affirmed the district court’s judgment. In upholding the decision, the circuit judges stated that ADA discrimination claims require an employee to show “(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability.”[4] The ADA’s definition of “disability” includes three definitions, but the circuit court limits its analysis to whether Richardson can demonstrate either that his obesity is an “actual impairment” or that CTA perceived his obesity as an impairment.[5]

The court first looked at whether obesity is an “actual impairment.” Although Congress never defined the word “impairment” and the Seventh Circuit had never addressed its applicability to obesity, the judges agree with the Second, Sixth, and Eighth circuit courts’ holdings that “obesity is an ADA impairment only if it is the result of an underlying physiological disorder or condition.”[6] Therefore, to qualify for ADA protection, plaintiffs must show that a physiological condition caused their obesity. The circuits reached this standard by analyzing guidance provided by the Equal Employment Opportunity Commission (“EEOC”) stating that the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.”[7] Richardson’s argument that obesity itself is a physiological disorder failed to sway the judges, as accepting the argument would grant all obese individuals an ADA impairment. Because Richardson did not present any evidence showing a physiological condition caused his obesity, it is not an actual impairment.

The court also examined whether CTA perceived Richardson’s obesity as a physical impairment. To succeed, a plaintiff must show that a defendant took adverse action based on the belief that plaintiff’s condition was an impairment, rather than a physical characteristic or trait. As defined above, this meant there must be enough evidence to show CTA believed an underlying physiological disorder caused Richardson’s obesity. Although the record showed CTA took action against Richardson because of his weight, the actions were based on safety concerns rather than a belief his obesity was caused by a physiological disorder. Without evidence showing CTA’s actions were in response to an impairment, it is not liable under the ADA.

This case is significant to both employees and employers alike. For employees, it provides a blueprint for a discrimination suit if they believe their obesity led to their termination. Similarly, it shows employers the limits of their options when faced with employees whose obesity is potentially affecting their work performance. CTA’s actions in this case provide a useful example to employers facing similar situations. But if Richardson’s medical evaluation had revealed that his obesity was caused by some “underlying physiological disorder or condition”, which could be many things, CTA may have needed to go through an interactive process to determine whether Richardson was qualified to perform the essential functions of the job with or without reasonable accommodation.

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[1] Richardson v. CTA, No. 17-3508 (7th Cir. 2019).

[2] According to a CTA doctor, Richardson’s weight exceeded the 400-pound threshold in May 2009, but no action was taken until February 2010.

[3] Richardson also appealed the district court’s decision to tax CTA’s deposition costs, which totaled $2,067.26. The Seventh Circuit upheld the decision as a reasonable exercise of the court’s discretion.

[4] Roberts v. City of Chicago, 817 F.3d 561, 565 (7th Cir. 2016).

[5] The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one of more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(3) (A).

[6] See Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1108-13 (8th Cir.), cert. denied, 137 S. Ct. 256 (2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 441-43 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2d Cir. 1997).

[7] 29 C.F.R. pt. 1630, app § 1630.2(h).

Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.