In June 2013, the American Medical Association (AMA) declared obesity a disease. The president of the AMA gave several reasons for this declaration^[1] “[R]ecognizing obesity as a disease will help change the way the medical community tackles this complex health issue.” The AMA president emphasized that classifying obesity as a disease could encourage people to pay attention to the seriousness of obesity, increase the dialogue between patients and physicians, and result in greater investments in research.

The Americans with Disabilities Act (ADA) was amended, effective January 1, 2009, to greatly expand the coverage of the act. Employers and individuals continue to observe how the Equal Employment Opportunity Commission (EEOC) and courts interpret and implement the amendments. Obesity is one condition that continues to be affected by the amendments.

In the original regulations implementing the ADA, the EEOC stated that “except in rare circumstances, obesity is not considered a disabling impairment.” 29 C.F.R. § 1630.16 App. (§ 1630.2(j)). Similarly, in its pre-amendment Compliance Manual, the EEOC stated that normal deviations in height, weight or strength are not impairments. However, “severe obesity,” which the Compliance Manual defined as “100% over the norm,” is “clearly an impairment,” although whether obesity rises to the level of “disability” is, like all impairments, determined by the substantial limitations test. The EEOC also noted that persons who are severely obese may have underlying or related disorders such as hypertension or thyroid disorder which do qualify as impairments.

The EEOC’s March 2011 regulations, which reflect changes made by the ADA Amendments, retain the statement that “[t]he definition of the term ‘impairment’ does not include physical characteristics such as . . . height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” This statement, however, does not prevent obesity from being considered a disability under the amended ADA. The ADA requires an individual assessment of the individual to determine whether he or she is disabled.

There are two principal ways in which the amendments increase the likelihood that obesity will be considered a disability under the ADA: (i) broader standards under the “substantial limitations” test and (ii) individuals no longer need to show that they are actually disabled to prevail under the “regarded as” disabled prong.

The substantial limitation test and major life activities

To qualify for protection under the ADA, an individual must show that he or she is disabled—substantially limited in a major life activity. The amendments were, in large part, a legislative response to courts’ narrow interpretation of what constituted a substantial limitation.^[2] Significantly, “‘[s]ubstantially limits’ is not meant to be a demanding standard.”^[3]

In combination with an expanded interpretation of major life activities, which include walking, standing, sitting, reaching, lifting, bending, breathing and working as well as major bodily functions including digestive, respiratory, circulatory functions, it is likely that many individuals whose weight restricts them from performing these activities or is a result of the dysfunction of a bodily system will be disabled within the meaning of the amendments.^[4]

“Regarded as” disabled

An individual may be illegally discriminated against under the ADA if he or she suffers an adverse employment action because his employer considers him to be disabled. Under the ADA amendments, the individual does not need to show that she is actually disabled, or that she is substantially limited in a major life activity—simply that her employer thought that she was and took adverse action based on that perception.

For example, in 2010 a Mississippi district court allowed Ms. Lowe, an obese receptionist, to proceed with her ADA “regarded as” claim because her former employer harassed her based on her use of disabled parking.^[5] The court stated that under the amendments “an individual is now not required to demonstrate that the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity.” Instead, the plaintiff was only required to show that “she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

Significantly, “a plaintiff now might be considered disabled due to obesity under the ADA if her employer perceived her weight as an impairment.” Therefore, employers should take care not to assume that employees are unable to complete tasks simply because of their weight. The ADA also prohibits discrimination in hiring, so employers should not decline to hire an individual simply because he or she is obese.

The ADA does not apply to individuals who cannot perform the essential functions of their job because of a medical condition, including obesity. As with all medical conditions, employers must identify the job responsibilities that employees are not able to complete and engage in a dialogue with the employee about accommodations that will allow the employee to perform these functions. If employees cannot perform their essential job functions with accommodation, employers may take adverse employment actions based on the performance failures.

_{[1] Ardis D. Hoven, Obesity As a Disease?, Huffington Post, June 28, 2013, www.huffingtonpost.com/ardis-d-hoven-md/obesity-as-a-disease_b_3518956.html.}

_{[2] See Regulations to Implement the Equal Employment Provisions of the American With Disabilities Act, as Amended, 76 Fed. Reg. 16981 (March 25, 2011) (stating that, in the ADA Amendments Act Congress “simply indicates that ‘substantially limits’ is a lower threshold than ‘prevents’ or ‘severely or significantly restricts,’ as prior Supreme Court decisions and the EEOC regulations had defined the term”.}

_{[3] 29 C.F.R. § 1630.2(j)(1)(i).}

_{[4] Although some courts impose a requirement that the individual be “severely obese” or have a weight “outside the normal range” to be disabled, the amendments likely supersede any such requirement for individuals who can show that their weight substantially limits a major life activity or is the result of the dysfunction of a major bodily function. Compare BNSF Ry. Co. v Feit, 2013 WL 1855832 (D. Mont. May 1, 2013) (relying on the repealed EEOC compliance manual for the definition of “severely obese”); with EEOC, Section 902 Definition of the Term Disability, available at: http://www.eeoc.gov/policy/docs/902cm.html (stating that the definition has been removed from the website because “the analysis in it has been superseded by the ADA Amendments Act.”).}

_{[5] Lowe v. American Eurocopter LLC, No. 1:10CV24-A-D, 2010 U.S. Dist. LEXIS 133343 (N.D. Miss. Dec. 16, 2010).}