To answer the question of whether obesity is a disability, we need to start with a definition of obesity. Let’s say a “body mass index” (BMI) in excess of 40. This is a simple objective measure and BMI > 40 represents an extreme definition of “obesity,” with which few people would disagree.
To answer the question of whether obesity, as defined, is a disability, it is also important to start with the question of “Why do you ask?” In other words, what are the ramifications of a “yes” or a “no” answer?
Should an employer be allowed to make a decision not to hire someone solely based on this aspect of a job applicant or would this violate the Americans with Disabilities Act (the “ADA”)?
In a recent court decision, the U.S. Court of Appeals for the Eighth Circuit had to answer the question. The court held, “[F]or obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition” and the court rejected the plaintiff’s ADA claim in the case because he failed to submit evidence that his morbid obesity “resulted from an underlying physiological disorder or condition.”
In my opinion, this is a case of conservative judges’ judicial activism. In my opinion, the court stretched to make policy decision the judges favored, inconsistent with the statute, inconsistent with both the letter of the law and the spirit of the law. And the experts tasked with enforcing the law, Equal Employment Opportunity Commission (“EEOC”), agree with me that morbid obesity should constitute a disability under the ADA.
The ADA defines “disability” as “(A) a physical . . . impairment that substantially limits one or more major life activities . . . (B) a record of such an impairment; or (C) being regarded as having such an impairment.”
Very few of us would suggest that morbid obesity does not impose a “physiological impairment,” defined as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine….”
I would submit that morbid obesity negatively affects almost all of the referenced “body systems.”
Notably, the Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief in favor the Plaintiff in the referenced lawsuit but the court dismissed this point with a footnote (footnote 4, page 12).
The court held that, to be a “physiological impairment,” a person’s obesity, even morbid obesity, must be “the result of a physiological condition.”
How can morbid obesity NOT be “the result of a physiological condition”?
Supporters of the Eighth Circuit’s decision will presumably argue that, if you do not have some diagnosed biological disorder (such as hypothyroidism among other diagnosed conditions that cause obesity), then your obesity might be caused by overeating, unhealthy diet, and lack of exercise — that is, caused by “bad choices” and choices within your personal control. If we start with the premise that the morbidly obese essentially can decide whether or not to suffer from the affliction they have — then it is understandably difficult to view the condition as a disability.
The problem with this, however, is that the Eighth Circuit judges do not have medical training or expertise. And those who do have medical training and expertise, have cast serious doubt on this view of the causes of morbid obesity. Leading scientists have found that life-threatening morbid obesity is far more complicated than the simplistic “bad choices” model and I would have thought that our courts would defer to agency-expertise in such areas of complex and nuanced decision-making.