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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

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Obesity and the ADA: Does 33% of the U.S. Population Have ADA Protection as a Result of Obesity?

Yesterday, the Eighth Circuit issued an opinion in Morriss v. BNSF Railway Co., No. 14-3858 (April 5, 2016), rejecting the plaintiff’s argument that obesity (in and of itself) is sufficient to maintain an ADA claim. The Eighth Circuit joins the Sixth Circuit and the Second Circuit in coming to this conclusion.

Melvin Morriss filed suit alleging that BNSF Railway Company refused to hire him on account of his obesity, and thereby discriminated against him in violation of the ADAAA and the Nebraska Fair Employment Practice Act. The action alleged both disability discrimination and “regarded as” discrimination.

Morriss had applied for a position as a Machinist in March of 2011 and was extended a conditional offer of employment contingent upon completion of a satisfactory medical review. Morriss’s completed medical questionnaire identified himself as 5’10” and 270 pounds, that he had once been diagnosed as “pre-diabetic” (but was not currently diabetic), that he considered his overall health as “good” and that he had “no difficulties or limitations in his daily activities. In May 2011, Doctors conducted two physical exams—the first indicated Morriss had a body mass index (BMI) of 40.9 and the second a BMI of 40.4. MBSF’s policy was not to hire any applicants for safety-sensitive positions if their BMI equaled or was in excess of 40. The Machinist position was safety sensitive. Accordingly, the company’s medical department emailed Morriss and notified him he was not “currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity,” thus revoking the conditional offer of employment. The District Court granted summary judgment in BNSF’s favor and Morriss appealed.

The Eighth Circuit noted that the ADA does not “define physical impairment,” but that the EEOC’s regulations define the term to mean any “physiological disorder or condition . . . affecting one or more body systems . . . .” Accordingly, the court noted that “[u]nder the plain language of this definition, obesity is not a physical impairment unless it is a physiological disorder or condition and it affects a major body system.” In response to arguments by Morriss, the court further stated, “that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as a result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found. In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.”

Ultimately, the court stated: “In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment.”

A small victory for employers, however an important point to recognize when making decisions as a result of an applicant’s failure of pre-hire medical screenings. If you currently have pre-hire medical screenings that take BMI into account, speak to a member of Verrill Dana’s Labor & Employment Practice Group to make sure you are currently incorporating best practices into your policy.

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