Since 1990, obesity in America has increased consistently. See Obesity Rates: Adults, St. Childhood Obesity, https://stateofchildhoodobesity.org/adult-obesity/ (last updated Sept. 2019). In 2018, 23% of adults in Colorado were obese, which was the lowest state percentage of obese adults. Id. Meanwhile, at the higher end of the spectrum, nearly 40% of adults in West Virginia and Mississippi were obese. Id. Obesity is defined as “abnormal or excessive fat accumulation that presents a risk to health” and is diagnosed when an individual’s body mass index (BMI) exceeds thirty. See Obesity, World Health Org., https://www.who.int/topics/obesity/en/ (last visited Mar. 2, 2020). Several causes can lead to obesity, such as lifestyle habits, physiological factors, diseases, and medications. See Jerry R. Balentine, Obesity, MedicineNet, https://www.medicinenet.com/obesity_weight_loss/article.htm (last visited Mar. 2, 2020). The prevalence of obesity is causing courts to begin considering whether obesity is a disability under the Americans with Disabilities Act (ADA). See Richardson v. Chi. Transit Auth., 926 F.3d 881, 886–87 (7th Cir. 2019); see also Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 608 (Wash. 2019).
The ADA, enacted in 1990, aims “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Americans with Disabilities Act, 42 U.S.C. § 12101(b)(1) (2012). In an employment setting, individuals covered under the ADA must receive reasonable accommodations, which include “making existing facilities used by employees readily accessible[,] . . . job restructuring, . . . reassignment to a vacant position, . . . [and appropriate modifications] . . . .” Id. § 12111(9)(A)–(B). The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities[,] . . . a record of such an impairment[,] or being regarded as having such an impairment.” Id. § 12102(1)(A)–(C).
Several state courts consider obesity as a disability under their state’s version of the ADA. See Richardson, 926 F.3d 881; see also Taylor, 444 P.3d 606. In 2019, the Supreme Court of Washington held that obesity is a disability under the Washington Law Against Discrimination. Taylor, 444 P.3d at 609; Sarah Kim, Washington State Supreme Court Rules that Obesity Is a Disability, Forbes (July 18, 2019, 5:47 PM), https://www.forbes.com/sites/sarahkim/2019/07/18/washington-state-supreme-courts-obesity-disability/#689a351d274d. Casey Taylor initiated this action after receiving a conditional job offer for a position as an electronic technician for the BNSF Railway Company (BSNF). Taylor, 444 P.3d at 609–10. The offer was conditioned on Taylor passing a physical exam and completing a medical history questionnaire. See id. The physical exam revealed that Taylor’s BMI was somewhere between 39.2 and 41.3. See id. BNSF treats a BMI over 40 as grounds for further screening prior to employment. See id. Taylor was not hired because he could not afford the additional screening required by BNSF. See id. at 610.
The Supreme Court of Washington held that BNSF “perceived Taylor as having ‘extreme obesity . . . .’” Id. at 622. The court did not find BNSF’s arguments persuasive because it found that obesity is recognized as a physiological disorder among the medical community. See id. at 630. The court even stated that obesity is “always” an impairment under the Washington Law Against Discrimination. Id. at 617.
The U.S. Court of Appeals for the Seventh Circuit ruled differently when it considered whether obesity is a disability. Richardson v. Chi. Transit Auth., 926 F.3d 881, 884 (7th Cir. 2019). That case arose when Mark Richardson sued his former employer, the Chicago Transit Authority (CTA). See id. In 2010, Richardson took a break from work due to the flu. See id. Before his return, Richardson was subject to a safety screening because his medical appointment revealed that he weighed over four-hundred pounds. See id. at 884–85. The CTA’s safety requirements mandate that bus drivers over four-hundred pounds “be cleared by safety prior to operating [a] bus.” Id. at 885. This requirement, however, does not “automatically disqualify employees” who are over four-hundred pounds. Id. Nevertheless, Richardson did not meet the safety requirement because, among other things, when his foot was simultaneously on the gas and brakes, he could not make hand-over-hand turns, his body hung off the driver’s seat, and he could not see the floor from his seat. See id. After working for the CTA in some capacity since 1993, Richardson was terminated in February of 2012. See id. at 884, 886.
The Seventh Circuit affirmed the lower court’s holding in favor of the CTA, which required an underlying cause for obesity to be a disability. Id. at 884. The court looked to the Second, Sixth, and Eighth Circuits, which each held that “obesity is an ADA impairment only if it is the result of an underlying ‘physiological disorder or condition.’” Id. at 887–88. The court emphasized that “only a small number of district courts have held extreme obesity as an ADA impairment . . . without evidence of a physiological cause.” Id.
Because several cases questioning whether obesity qualifies as a disability were decided within a month of each other, growing interest in the topic suggests that similar cases are likely to appear. See Richardson, 926 F.3d 881; see also Taylor v. Burlington N. R.R. Holdings, Inc., 444 P.3d 606, 608 (Wash. 2019). Additionally, as highlighted in Richardson, if federal courts continue to disagree on obesity as an impairment under the ADA, the Supreme Court may need to reconcile the differing views in a future case. Richardson, 926 F.3d at 887.
Alternatively, before the Supreme Court considers this issue, Congress could amend the ADA to provide clarity on whether obesity is a disability under the ADA. Congress could accomplish this by defining obesity to portray Congress’ intent on how the ADA interacts with obesity, including whether an underlying cause must be present to implicate ADA protection.
*Molly Shaffer is a second-year day student at the University of Baltimore School of Law, where she serves as a staff editor for the Law Review. She is a distinguished scholar of the Royal Graham Shannonhouse III Honor Society. Molly also serves as a writing fellow for the Legal Writing Center at school. This summer, she will join Tydings & Rosenberg LLP as a summer associate.