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From Small Things, Big Things One Day Come

October 4, 2018Robert C. Lockwood

Springsteen small things errors big Alabama Employment Law — Small errors can have big consequences for employers.

I confess: I’m a big Bruce Springsteen fan. One of his more obscure songs is “From Small Things (Big Things One Day Come).” The song itself has absolutely nothing to do with employment law, but I thought of the title when I read the Eleventh Circuit’s recent opinion in Jones v. Aaron’s Inc., No. 17-14298, 2018 WL 4203459 (Sep. 4, 2018). The Jones case demonstrates that small errors in dealing with employees can have big consequences for employers.

Rosana Jones was a Customer Service Representative for Aaron’s, Inc. She injured her back and took FMLA leave from June 2, 2013 to June 17, 2013. Prior to her injury and FMLA leave, Jones worked 40 hours per week, but upon return her hours were reduced to 32 hours per week. After two weeks working that reduced schedule, Jones complained to her supervisor, who returned her to 40 hours per week. But, Aaron’s did not pay Jones for the 16 hours of missed work.

In October 2013, a new manager was assigned to Ms. Jones’s store, and she clearly had personality conflicts with that manager. Those conflicts culminated in an event where Jones told the manager: “Christ, just be a man. Tell me what your problem is with me.” Based upon that statement and other conflicts, Aaron’s terminated Ms. Jones’s employment.

Ms. Jones sued Aaron’s under the Americans with Disabilities Act and the Family and Medical Leave Act. She focused on: (1) the termination of her employment; and, (2) the loss of 16 work hours when she returned from FMLA leave. A trial court dismissed both of those claims, but the Eleventh Circuit entered a limited reversal.

The Eleventh Circuit found that termination was appropriate, but reversed on the 16-hour issue. Aaron’s claimed that Ms. Jones requested a reduction of hours when she returned from FMLA leave, but Ms. Jones denied any such request. Indeed, there was no documentation of any kind indicating such a request. Instead, viewing the evidence most favorably for Ms. Jones, it appeared that Aaron’s management implemented the reduction of hours.

After Ms. Jones filed her lawsuit, Aaron’s paid her for the sixteen hours. While the dollar amount is not mentioned in the Jones opinion, I suspect that the payment was only a few hundred dollars — at most. After making that payment, Aaron’s essentially argued “no harm, no foul.” But, the Eleventh Circuit was not persuaded: “Employers cannot escape liability for adverse employment decisions by making retroactive payments to aggrieved employees. …. Moreover, Aaron’s late payment to Jones does not alter the fact that Jones was denied payment because of an FMLA violation, nor does it erase the injury caused by this alleged FMLA violation — specifically the lost value and use of the funds in the three years before she received payment.”

For Aaron’s, the practical impact of its small error will probably result in a much larger financial result. The Eleventh Circuit’s opinion clears the way for a jury trial on the FMLA violation. Most likely, the parties will settle that claim before trial. And, the primary beneficiary of any settlement will be Ms. Jones’s lawyers. The value of Ms. Jones’s FMLA claim for 16 hours is very low. But, her lawyers will certainly claim that they are entitled to thousands of dollars of in attorneys’ fees for successfully pursuing the claim. As a result, an error of several hundred dollars by Aaron’s will probably cost them thousands of dollars to resolve.

For employers, the practical lesson from Jones is: be willing to admit when you’ve made a mistake. If Aaron’s paid Ms. Jones before she filed suit, or if Aaron’s paid her for “the lost value and use of the funds,” the result of the case might have been much different. By waiting to correct a violation, however, Aaron’s small error potentially resulted in much larger financial consequence.

Failing an Employee Assistance Program Can Justify Termination

October 2, 2018Robert C. Lockwood

EAP substance abuse EAPs ADA ADAAA Alabama Employment Law — EAPs provide employees with an important benefit in fighting substance abuse issues.

Many employers offer their employees the benefit of an Employee Assistance Program (“EAP”). An EAP is an intervention program that is designed to assist employees in resolving personal problems that may affect their performance. There are many types of EAPs, but they usually involve referral for some type of counseling and/or treatment. I frequently see EAPs provided for employees who have substance abuse issues.

Obviously, substance abuse is an important issue in the workplace. And, employers justifiably want employees who are committed to overcoming substance abuse problems. So, what happens if an employee suffering from substance abuse fails to comply with the terms of an EAP? In some cases, an employer might be justified in terminating such an employee. See Jacobson v. City of West Palm Beach, No. 17-12716, 2018 WL 4355863 (11th Cir. Sep. 12, 2018).

In Jacobson a firefighter self-medicated with marijuana for stress, anxiety and depression. He self-reported his marijuana use to an Assistant Fire Chief and was referred to a mandatory Employee Assistance Program. That program required Mr. Jacobson to attend six therapy sessions with the goal of becoming “Drug Free.” Unfortunately, Mr. Jacobson missed his fifth therapy session due to oversleeping. The EAP’s case manager reported to the Fire Chief that Mr. Jacobson was out of compliance with the EAP. The Fire Chief then reviewed the city’s collective bargaining agreement with firefighters, which provided: “Failure to comply with the prescribed treatment program will result in termination of employment.” Based upon that language, the Fire Chief terminated Mr. Jacobson’s employment.

Mr. Jacobson sued and claimed that the City violated the Americans with Disabilities Act. According to Mr. Jacobson, he was fired because of his depression and anxiety. A trial court ruled in favor of the City and the Eleventh Circuit Court of Appeals affirmed that decision. The Eleventh Circuit refused to find that the City was required by the collective bargaining agreement to fire Mr. Jacobson. Nevertheless, the Fire Chief’s reasonable belief that he was required to terminate was a sufficient, non-discriminatory reason for the termination decision.

Jacobson does not provide employers with carte blanche authority to terminate every employee who fails to comply with some aspect of an EAP. Indeed, the Eleventh Circuit noted that Mr. Jacobson failed to request a “reasonable accommodation” under the ADA to make-up the missed EAP session. Nevertheless, failure to comply with the terms of an EAP can, in some circumstances, justify termination.

Potential Strategies for Defending ADA Public Accommodation Cases

September 4, 2018Robert C. Lockwood

Title III ADA public accommodation accessible readily achievable moot Alabama employment law — Title III ADA claims involving public accommodations can be difficult for business owners.

In recent years, several of my clients have been threatened with lawsuits for allegedly violating Title III of the Americans with Disabilities Act. Title III of the ADA ensures that individuals with disabilities are not discriminated against by owners or operators of places of public accommodation such as shopping centers, restaurants, offices and amusement parks. Typically, Title III claims focus on the ability of people with disabilities to fully access stores and other places of public accommodation. Here’s an article from AL.com a few years ago discussing the increase in these types of lawsuits: ADA Lawsuits Against Businesses on the Upswing. The issue has become significant enough that the United States House of Representatives has passed the ADA Education and Reform Act. Here’s an article by the Alabama Retailers Association discussing that legislation: ADA Reform Act. The Senate has not yet passed or approved similar legislation, however.

Therefore, businesses need to be proactive in protecting themselves from ADA claims. The best way to protect yourself is to hire an expert (usually an architect) to review your business and ensure that it complies with the ADA’s accessibility requirements. But, what happens if you get a letter, or a lawsuit, claiming that you’ve violated the law?

At that point, you have a business decision to make. No matter what, if you’ve truly violated the ADA (even unintentionally) you need to fix the problem. But, many times these lawsuits focus on highly technical issues that leave room for debate over whether there’s been a violation. In other cases, the “fix” requested by an ADA customer may be more expensive than is “readily achievable.” You need to consider all available financial factors (such as cost of repair and cost of paying your attorney) in deciding whether you want to fight a claim that you violated the ADA.

In most cases, the central issue won’t be the cost of repairs, but the cost of attorneys’ fees to pay the lawyer representing the disabled customer. Many times, lawyers file lawsuits for small violations of the ADA in hopes of generating substantial legal fees that can be awarded by a judge to a “prevailing party” in an ADA case.

In most cases, I advise my clients to fix any alleged ADA violations that can be quickly remedied. To that end, one strategy is to fight over matters that are not truly violations, or “solutions” that are not readily achievable. That strategy was followed successfully by the business-owner in Kennedy v. Omegagas & Oil, LLC, No. 18-10102, 2018 WL 4183462 (11th Cir. Aug. 31, 2018).

In Kennedy, it appears that the business-owner drew the metaphorical “line in the sand.” A wheelchair-bound customer visited a gas station/convenience store and noted numerous violations of the ADA including: an improperly marked and blocked handicapped parking space; unsecured floor mats; a pedestal sink in the bathroom, which would prohibit her from utilizing the sink; sink and doorknob hardware in the shape of knobs, which require gripping and twisting to operate; missing or improperly placed grab bars near the toilet; a flush control on the incorrect side of the toilet; and a paper towel dispenser located too high to be reached. The owner quickly began work to fix those alleged violations. Nevertheless, the parties argued over the plaintiff’s request to increase the maneuverable space in the store’s bathroom.

By the time of trial, every alleged violation except the maneuverable space was fixed. As a result, the trial judge found that the ADA claims for those violations were “moot,” and that the plaintiff did not possess a claim. With regard to the maneuverable space issue, the trial court found that the renovations required to obtain sufficient maneuverable space were not “readily achievable.” In an existing building, the ADA states that discrimination includes a private entity’s “failure to remove architectural barriers … where such removal is readily achievable. ” 42 U.S.C. § 12192(b)(2)(A)(iv)). “Readily achievable” is defined under the ADA as “easily accomplished and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).

The trial judge found that the plaintiff failed to meet her burden of demonstrating renovations for more maneuverable space were “readily achievable.” In particular, the plaintiff failed to rebut the business owner’s evidence that it would cost $80,000 or more, and would require him to close the gas station and store during renovation.

The Eleventh Circuit carefully reviewed the trial court’s decision and affirmed it on appeal. I have not talked to any of the lawyers involved in this case, but I strongly suspect that the real issues were “mootness” and attorneys’ fees. Based upon my experience, I believe that the plaintiff’s attorney asked to be paid an attorneys’ fee for obtaining a remedy of the violations that were quickly fixed by the gas station/convenience store owner. If the owner paid a fee to the lawyer, I suspect that the plaintiff would have agreed that maneuverable space in the bathroom would not be “readily achievable.”

But if a business-owner refuses to payoff the plaintiff’s attorney, that attorney can only get paid if he goes to court and persuades a judge that there’s been a violation of the ADA. In short, the business owner was taking a risk. If the trial judge found that the claims weren’t “moot,” the owner would have to pay attorneys’ fees. Similarly, if the trial judge found that the improving the maneuverable space fix was “readily achievable,” the owner would have to pay attorneys’ fees.

Some business owners might be thinking: “Great! I’ll fix the cheap problems and fight the expensive ones, and everything will turn out OK.” Not so fast, my friend! You need to carefully review all factors with your lawyer before making this kind of final decision in an ADA public accommodation case. The trial judge possesses a tremendous amount of discretion in determining whether accessibility issues are “moot.” A different judge could easily have reached a different conclusion and imposed liability on the gas station/convenience store owner — even for the problems that he quickly fixed. So, proceed cautiously, but know that, in some cases, there are defenses to Title III ADA public accommodation claims.

ADA: Reasonable Accommodations Have Limits

July 11, 2018Robert C. Lockwood

ADA ADAAA reasonable accommodations allergies Alabama Employment Law — The ADA only requires reasonable accommodations, not the accommodation of an employee’s choosing.

A recent decision from the Northern District of Alabama reinforces that the Americans with Disabilities Act (“ADA”) does not guarantee disabled employees an accommodation of their choosing. Instead, accommodations offered by an employer only need to be “reasonable.” See Maddox v. ALDOT, No. 2:15-cv-00312-MHH, 2018 WL 3241212 (N.D. Ala. Jul. 3, 2018).

In Maddox, the employee suffered from allergies to dust and asphalt, and also worked for the Alabama Department of Transportation (“ALDOT”). ALDOT provided numerous accommodations to Ms. Maddox. ALDOT allowed her to leave work anytime asphalt fumes affected her breathing. It provided an air purifier and replaced the air ventilation system in Ms. Maddox’s building. ALDOT even relocated an asphalt lab to the rear of the building in which Ms. Maddox worked. ALDOT also offered to transfer Ms. Maddox to a different office in Shelby County, but Ms. Maddox declined and requested a transfer to ALDOT’s main office in Montgomery. However, the main office was undergoing mold remediation and ALDOT would only permit the transfer if her doctor stated that the main office would be a safe environment. When Ms. Maddox’s doctor declined to issue such an opinion, she argued that ALDOT should allow her to take sick leave until a clean-air environment could be created. ALDOT declined to provide such leave.

Ms. Maddox sued under the ADA claiming that ALDOT failed to provide a reasonable accommodation for her alleged disability. For purposes of deciding the case, United States District Court Judge Madeline Hughes Haikala assumed that the allergies amounted to a “disability” under the ADA. Nevertheless, Judge Haikala focused upon the fact that the ADA only requires “reasonable accommodations.” Indeed, it is well-established that a qualified individual with a disability is “not entitled to the accommodation of her choice, but only a reasonable accommodation.” Stewart v. Happy Herman’s Chesire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

Judge Haikala noted her sympathy with Ms. Maddox’s frustration, but held that the ADA “does not require an employee to create an environment completely free of fumes, dust, mold or other allergens to accommodate an employee’s health condition.” Judge Haikala found that ALDOT’s proffered accommodations were reasonable; therefore, she dismissed Ms. Maddox’s case.

Maddox provides excellent guidance for employers struggling to accommodate employees’ health conditions. In most cases, employers should follow ALDOT’s lead and attempt to find some solution/accommodation for the employees’ health issues. But, at some point, requested accommodations cross the line from “reasonable” to unreasonable. In those cases, the employer’s other efforts to provide reasonable accommodations can help prove that the employee’s requested accommodation is not reasonable.

****For lawyers/lovers of the law**** Maddox was decided under Section 504 of the Rehabilitation Act of 1973. In employment cases, the standards of the Rehabilitation Act are the same as the standards applied under Title I of the ADA.

ADAAA: “Regarded As” Disabilities Difficult for Employers

April 30, 2018Robert C. Lockwood

ADAAA ADA disability regarded as Alabama Employment Law — The ADAAA makes it easier for employees to sue if they are “regarded as” disabled

In the waning days of George W. Bush’s presidency, he signed the Americans with Disabilities Act Amendments Act (“ADAAA”). The ADAAA implemented several changes to the Americans with Disabilities Act of 1990. The change that has been most problematic for my clients is the liberalization of claims for being “regarded as” disabled.

The ADA protects employees from employment actions which are taken because they: (1) suffer from a disability; (2) have record of a disability; or, (3) are “regarded as” disabled by the employer. The third prong protects employees who are not actually disabled, but whose employers treat like they are disabled. Under the 1990 version of the ADA, it was difficult for an employee to prevail on a “regarded as” claim, because the employer must have wrongly believed that the employee was “substantially limited” in a major life activity (like walking or working). The ADAAA made it much easier for employees to sue for a “regarded as” disability. Now, an employee “need demonstrate only that the employer regarded him as impaired, not that the employer believed the impairment prevented the [employee] from performing a major life activity.” Wolfe v. Postmaster General, 488 Fed. Ap’x. 465, 568 (11th Cir. 2012).

In December, the Eleventh Circuit Court of Appeals reviewed the liberalized standards of the ADAAA, and made it extremely easy for an employee to prove they are “regarded as” disabled: “an employer that takes an adverse action because it fears the consequences of an employee’s medical condition has regarded that employee as disabled.” Lewis v. City of Union City, 877 F.3d 1000, 1012 (11th Cir. 2017).

In the real world, employers frequently take action because they fear the consequences of an employee’s medical condition. As a result, the ADAAA and the Lewis decision make it much easier for employers to be sued based upon reasonable business decisions. Employers can still avoid liability by showing that the employee could not perform the “essential functions” of his or her job, or that the employee was a “direct threat” to themselves or others. Nevertheless, employers who are contemplating taking any action against an employee because of that employee’s impairment should proceed very cautiously.

ADA: Disabled Employees Must Meet Productivity Standards

April 23, 2018Robert C. Lockwood

ADA ADAAA disability productivity Alabama Employment Law — Disabled employees must meet the same productivity standards as other employees.

The Americans with Disabilities Act (“ADA”) is intended to ensure that individuals with disabilities do not suffer discrimination in the workplace. Even so, the ADA does not grant special status to individuals with disabilities, so that they are treated more favorably than other employees. One of the key requirements of any workplace is productivity. Disabled employees must meet the same productivity standards as other employees.

This concept is acknowledged even by the EEOC: “An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job.” The EEOC’s entire discussion of performance standards can be found here: Applying Performance And Conduct Standards To Employees With Disabilities. As you probably know, the ADA requires that “reasonable accommodations” must be made for disabled employees. But, the EEOC also acknowledges that an employer is not required to decrease productivity standards as an “accommodation”: “Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

The Eleventh Circuit Court of Appeals recently upheld productivity requirements in Singleton v. The Public Health Trust of Miami-Dade County, No. 17-12282, 2018 WL 679389 (11th Cir. Feb. 2, 2018). In Singleton, a physician was required to treat a minimum number of patients each day. Yet, it was undisputed that he was unable to meet those productivity requirements. As a result, even though the physician may have been “disabled,” he was not a “qualified” individual with a disability. A “qualified” individual must be able to perform the essential functions of the job. Because productivity was an essential function, and the physician could not perform that function, he could be terminated without violating the ADA.

Employers should always proceed cautiously when contemplating the termination of a disabled employee. In fact, the EEOC suggests that an employer might have a duty to eliminate “marginal” functions of a job in order to assist an employee in meeting productivity requirements. Therefore, I strongly encourage Alabama employers to conduct a thorough analysis before terminating a disabled employee.

ADA: Comprehensive Job Descriptions Are Vital

April 19, 2018Robert C. Lockwood

Job descriptions ADA ADAAA Alabama Employment Law — Job descriptions are an important piece of evidence in defending ADA claims.

Do you have job descriptions for your employees? Do your job descriptions list the “essential functions” for each job? If not, your chances of violating the Americans With Disabilities Act (“ADA”) are greater than they need to be.

To prevail on a claim of disability discrimination, an employee must prove that they were “disabled” and that they were a “qualified” individual with a disability. A “qualified” individual can perform the essential functions of their job, with or without reasonable accommodation. Job descriptions are vital because they help a court to determine the essential functions of a job.

Whether a job function is “essential” is determined on a case-by-case basis. Even so, one of the factors that a court considers is the employer’s judgment of whether a particular function is essential. And, a comprehensive job description will tell a judge exactly which functions the employer considers to be essential.

But, a job description can be a double-edged sword. If your job description fails to list a function as “essential,” it will be difficult to convince a court otherwise. One employer learned that lesson in Lewis v. City of Union City, 877 F.3d 1000 (11th Cir. 2017). In Lewis, a police department claimed that officer must be trained on, and suffer a shock from, taser guns. Lewis refused because of a heart condition, and the department terminated her employment. The department then tried to argue that taking a shock from a taser was an “essential function” of the job, but the job description for police officer made no reference to the taser shock. The Eleventh Circuit then found that there were genuine issues on whether the taser shock was an essential function of the job.

The lack of reference to taser shock in the job description also defeated the department’s “direct threat” defense. The department argued that the officer was a direct threat to herself, because her presence near tasers in the workplace posed a significant risk of harm to her health. The Eleventh Circuit rejected that argument, however, because a “direct threat” can only be determined by examining “essential functions.” And, again, the taser shock was missing from the “essential functions.”

In short, job descriptions are vital part of any defense to an ADA claim. As always, proceed carefully if you are going to take any action based upon the health of any employee.

No Preference for Disabled Employees in a RIF

April 13, 2018Robert C. Lockwood

RIF reduction in force disability Alabama Employment Law — Disabled employees are not entitled to preferential treatment when an employer conducts a RIF.

Disabled employees who are part of an employer’s reduction in force (“RIF”) are not entitled to preferential treatment. See Mance v. Board of Trustees of Univ. of W. Ala., No. 7:16-cv-01056-JEO (N.D. Ala. Mar. 23, 2018). Angelia Mance was employed by the University of West Alabama (“UWA”) as the managing partner of the Demopolis Higher Education Center (“DHEC”). Even though UWA was her employer, the funding for the DHEC’s programs came from the City of Demopolis. On October 22, 2014, the City cut-off funding for the DHEC, and UWA decided to implement a reduction-in-force — terminating all five members of the DHEC staff, including Mance.

Ms. Mance is confined to a wheelchair and indisputably disabled. On December 3, 2014, she e-mailed the President of UWA and asked for a “reasonable accommodation” — re-assignment and/or placement in a new position. UWA, however, was in the middle of a hiring freeze. Even so, Mance claimed that she previously held positions as an Associate Director and a Special Projects Coordinator. UWA provided evidence that there were no such available positions.

Ms. Mance’s case hinged upon her insistence that UWA was required to “accommodate” her disability by making her an Associate Director or Special Projects Coordinator. Chief Magistrate Judge John Ott was not persuaded. Judge Ott noted that employers are not required to “afford ‘preferential treatment’ to the disabled when it comes to job reassignments or filling vacancies.” He also found that “Mance’s discrimination claim is a textbook example of a plaintiff asserting that her disability affords her a right of preferential treatment over non-disabled employees when the employer imposes a lawful reduction-in-force.” He concluded that “federal anti-discrimination law does not require an employer to create a new position, either out of whole cloth or by shuffling around other employees or their duties, as a reasonable accommodation for a disabled worker who is otherwise lawfully subject to termination.”

Obviously, employers should not include employees in a RIF because of a protected characteristic — such as disability, race, age or gender. At the same time, Mance helps to establish that employers are not required to give preferential treatment to the disabled in the decision-making process.

ADA: Extended Leave Is Not a Reasonable Accommodation

October 30, 2017Robert C. Lockwood

ADA leave of absence reasonable accommodation Alabama employment law — In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act. See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017). Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013. The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave. He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation. At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014. Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job. Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.” Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here: 7th Circuit Rejects Leave as Accommodation. The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation: EEOC on ADA and Leave. The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”

“I Don’t Hire Overweight People”: Obesity and the ADA

September 29, 2017Robert C. Lockwood

Obesity ADA ADAAA Alabama Employment law disability — Courts are divided on whether obesity is a disability under the ADA.

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.