Last week, an article on AL.com caught my attention. A Vestavia Hills chiropractor admitted that he terminated a receptionist/chiropractic assistant because of her weight. Here’s a link to the article: “I Don’t Hire Overweight People.” I’ve never had a client admit that they terminated an employee based upon their weight and/or obesity. So, my first question was whether the chiropractor might be liable under the Americans with Disabilities Act (“ADA”). Is obesity a “disability” under the ADA?
After a little research, I determined that there is no clear answer. Prior to the ADA Amendments Act in 2008, the EEOC’s interpretive guidance expressly held that obesity would only be considered a disability in “rare circumstances.” But, that guidance was deleted after the ADA amendments. Courts are divided on the issue after the ADA amendments. See McCollum v. Livingston, 4:14–CV–3253, 2017 WL 608665 (S.D. Tx. Feb. 3, 2017)(“Courts are split as to whether obesity, on its own, can qualify as a disability under the ADA”). The highest court to consider the issue lately is the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co, 817 F.3d 1104 (8th Cir. 2016). The Morriss court held that obesity is not a disability unless the obesity is the result of a “physiological disorder.”
In Alabama, Judge Abdul Kallon in the Northern District of Alabama assumed that obesity could be a disability for purposes of his analysis in White v. Beaulieu Group, No. 5:15-cv-02141-AKK, 2017 WL 2243024 (May 23, 2017). But, even with that assumption, Judge Kallon found that the employee failed to prove that he suffered discrimination.
The ADA Amendments Act liberalized the ADA’s requirements and made it much easier for employees to sue. So, as a practical matter, I strongly suggest that all employers refrain from relying upon physical characteristics as a reason for taking an employment action. In my opinion, it’s simply not worth the risk of a law suit.
On final note. In this case, the chiropractor could probably not be liable under the ADA, because the receptionist/chiropractic assistant was his only employee — and an employer must have 15 employees to be subject to the ADA.