Dawn Brotherton May 2, 2016, 2:28pm


ST. LOUIS (Legal Newsline) – Although the Equal Employment Opportunity Commission (EEOC) has considered morbid obesity a protected disability under the American with Disabilities Act (ADA), a federal appeals court disagrees. Now, obesity does not qualify for ADA protection without an underlying physical disorder.

Recently, the U.S. Court of Appeals for the Eighth Circuit handed down its decision in Morriss v. BNSF Ry. Co., concurring with lower courts that obesity is a physical condition, not an impairment, unless it stems from another condition.

In 2011, Melvin Morriss applied for a position as a machinist with BNSF Railway Company. BNSF offered Morriss a position, provided he met the medical conditions for employment. BNSF’s policy is that they do not hire anyone with a BMI of 40 or higher for safety-sensitive positions.

Once Morriss completed two physical examinations by different doctors, BNSF withdrew its offer of employment. Morriss filed suit alleging discrimination under the ADA, claiming that obesity is a disability.

BNSF prevailed in the U.S District Court for the District of Nebraska. Morriss appealed to the Eighth Circuit. The AARP and EEOC filed amicus briefs in favor of Morriss.

One reason the Eight Circuit upheld the district court’s decision was that “Morriss did not produce evidence that BNSF perceived his obesity to be an existing physical impairment.” Morriss was not hired due to a disability, “but because BNSF believed by having a BMI of 40, [Morriss] would or could develop such health risks in the future”

It is unknown whether Morriss will appeal to the Supreme Court.

William Goren, a lawyer and expert witness in ADA cases, said, “The decision seems pretty well-reasoned, and so I would not suggest an appeal to the United States Supreme Court.”

“This [case] means is if people are heavy, they may have ADA claims, but not for obesity.

"(T)his case has a perverse effect in that it may bring out mental health issues.”

Many, not all, obese individuals have mental health problems that would fall under ADA protection.

Another possibility, according to Goren, “for conditions which may happen in the future, [individuals] may want to look at the Genetic Information Nondiscrimination Act.” In 2008, Congress enacted the Act to prohibit discrimination based on genetic information in obtaining life insurance and employment.

Ted Kyle, Advocacy Expert to the Obesity Society, told Legal Newsline, “this is an area where the law is evolving. In 2013, the [American Medical Association] classified obesity as a chronic disease. Employers should not discriminate against individuals with obesity.”

In 2006, in EEOC v. Watkins Motor Lines, Inc., the Sixth Circuit also reached the conclusion that obesity was not protected under the ADA, as did the Second Circuit in Francis v. City of Meriden, a case from 1997. However, in Cook v. State of RI, Dept. of MHRH, in 1993, the First Circuit classified morbid obesity as a disability under the Rehabilitation Act. Morriss was not morbidly obese, which is why Cook did not apply to his case.

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