Tag Archives: ADAAA

Obesity Alone Does Not Qualify as a Disability Under the ADA says the 8th Circuit

Contributed by Carlos Arévalo

The Eighth Circuit Court of Appeals recently affirmed a Nebraska federal court’s decision ruling that to constitute an ADA impairment, obesity, even morbid obesity, must be the result of a physiological disorder or condition. In the case of Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the court held that a morbidly obese job applicant rejected for a position as a railroad machinist could not show he was regarded as disabled under the ADA.

Melvin Morriss applied for a machinist position with BNFS Railway Company in March 2011. He was extended a conditional offer of employment contingent upon a satisfactory medical review. Morriss completed a medical questionnaire indicating he was 5’10” and 270 pounds. BNSF doctors conducted two examinations which revealed Morriss’ weight to be higher, with a body mass index (BMI) of over 40. Pursuant to its policy, BNSF did not hire any new applicants for safety-sensitive positions that had a BMI of 40 or greater. Consequently, BNSF revoked its conditional offer of employment.

18629626_sMorriss filed suit alleging disability discrimination under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), claiming that his obesity was a disability. To prevail on his claim, Morriss had to show that his obesity was a “physical impairment” – which is defined by the EEOC as a physiological disorder or condition affecting one or more body systems. Morris pointed to other interpretative EEOC guidelines that exclude physical characteristics, such as weight within the normal range. Thus, an individual’s obesity would only have to be result of a physiological disorder if his weight was within the normal range. Because Morris’ weight was outside the normal range, he claimed he did not have to show a physiological disorder. The court rejected Morriss’ interpretation noting that the more natural reading was 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 the result of a physiological disorder.”

Morriss also argued that following the adoption of the 2008 ADA amendments, courts have found that that obesity constitutes a physical impairment, even without an underlying physiological disorder. However, the court adroitly pointed out that Congress did not direct the EEOC to change its definition of physical impairment, thereby affirming the necessity of having obesity be the result of a physiological disorder or condition in order to be deemed a disability under the ADA.

With Morriss, the 8th Circuit joined the 2nd and 6th Circuits and other state and federal courts in rejecting the idea that obesity alone is a disability under ADA. However, employers should be mindful that this issue remains unsettled and more decisions, not necessarily consistent with Morriss, will surely follow.

7th Circuit Affirms Employer Victory: Discharge Proper for Employee Who Could Not Perform Essential Job Function

Contributed by Jonathon Hoag

The ADA Amendments Act of 2008 (ADAAA) brought broad speculation that a large percentage of employees would qualify as “disabled”  as defined under the amended ADA and employers would have to focus attention on engaging in the interactive process to identify a reasonable accommodation. While it is true that the ADAAA has increased the Injured personimportance of engaging in the interactive process to review possible accommodations, it is still equally important to consider whether the employee is a “qualified individual with a disability” under the ADAAA.  The 7th Circuit’s recently upheld dismissal of a disability claim because the employee could not perform the essential functions of the job and, thus, was not a “qualified individual with a disability.”

The employee started work at an automotive retailer in 2005 and was promoted to Parts Sales Manager (PSM) in 2007. Following her promotion, the employee suffered a work-related injury and in 2009, was permanently restricted from lifting with her right arm anything that weighed over 15 pounds. Her employer terminated her when they were unable to reasonably accommodate her lifting restriction, asserting that lifting was essential to the job.

The EEOC filed suit against the employer alleging it failed to accommodate the employee’s lifting restrictions. As part of its claim, the EEOC was required to prove that they employee was a qualified individual with a disability. Under the ADAAA, this means the EEOC had to prove she could perform the essential functions of the job with or without reasonable accommodation.

The employer was able to submit substantial evidence to show that lifting objects over 15 pounds was a regular and essential part of the PSM job. Importantly, the employer was able to prove it did not have a practice of reassigning the lifting requirement of the job. If there is evidence that the employee reassigns a task to other employees, the court views this as a strong showing that the task is marginal (and not essential) to the job. The 7th Circuit pointed to numerous cases finding that it is not a reasonable accommodation to require another employee to do the lifting. As a result, the employee was not a qualified individual with a disability under the ADAAA.

The employer prevailed because it had substantial evidence to show lifting was an essential job function and there was no way to reasonably accommodate the employee’s restrictions. The ADAAA certainly places more emphasis on the employer’s obligation to review reasonable accommodations and engage in the interactive process. However, the 7th Circuit’s ruling is a reminder for employers to work with counsel to simultaneously analyze whether the employee is a “qualified individual with a disability.” This threshold issue remains an important component of limiting legal exposure to disability-related employment claims.

Employers Do Not Have to Allow Unacceptable Workplace Behavior Due to a Disability

Contributed by Michael Wong

The Americans with Disabilities Act (ADA, ADAAA) and Rehabilitation Act, which incorporates most of the ADA standards, prohibit discriminating against employees based on their disabilities.  Indeed, with the ADAAA amendment, recent court decisions have broadened the scope of what is considered a disability, as well as what steps an employer must take in order to comply with the law.

In doing so, employers may feel that their hands are tied behind their back in dealing with employees who perform poorly and/or act out at work.  However, just because an employee is disabled does not mean that they should be given carte blanche freedom in what they say and do in the workplace. Recently, the Eastern District of Wisconsin dismissed a former Wisconsin Department of Transportation employee’s claims under the Rehabilitation Act (which incorporates most of the ADA standards) and Family Medical Leave Act, finding that the employee’s conduct was unacceptable.  In doing so the court followed the Seventh Circuit case, Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013) and held that an employer may terminate an employee for engaging in unacceptable workplace behavior without violating the ADA (or Rehabilitation Act), even if the behavior was precipitated by a mental illness.

Specifically, the court held that the employee’s hysterical screaming and suicidal behavior in front of co-workers and members of the public was simply not behavior that an employer generally has to tolerate or accommodate. Indeed, the court recognized that absent a disability, an employer would otherwise be entirely justified in immediately terminating an employee who engaged in such behavior.

While this may be an extreme example, employers should understand that their hands are not tied when it comes to dealing with employees who blame their poor performance or unacceptable workplace behavior on a disability. However, since this is a sensitive subject that can very easily lead to a discrimination claim, employers should make sure to understand the current case law and consult with legal counsel before taking disciplinary steps that may include termination.


Obesity is a Disability According to Recent Northern District of Illinois Decision

Contributed by Noah A. Frank

The Americans with Disabilities Act (ADA, ADAAA) prohibits, among other things, an employer from discriminating against an employee with a disability on the basis of that disability.  The Federal District Court for the Northern District of Illinois recently interpreted the definition of disability to include obesity.

While the EEOC’s ADA interpretive guidelines provide that obesity is a disability in “rare circumstances” only, the court in this case mused that an administrative assistant who claimed to have had weight-related difficulty walking across a parking lot near the end of her employment might be one of those rare circumstances with sufficient evidence to establish an ADA-covered disability had the case gone to a jury.  The court further found that the plaintiff’s claims that a supervisor allegedly cursed, made derogatory statements, and commented that “[the plaintiff’s] big fat needs to concentrate on losing weight” were possible evidence of the supervisor’s animus towards overweight individuals.  The court ultimately granted summary judgment to the employer, confirming a labor arbitrator’s determination that the plaintiff’s termination was based on fraudulent time theft and insubordination and not based on weight-related issues.

While the ADA (and anti-discrimination laws, generally) are not “codes of conduct,” Luster-Malone is an example of a court giving credence to a potential ADA claim where there otherwise should have been little reason to question an employer’s motivation for termination: the employee’s fraudulent time theft and insubordination.  Here, the combination of an employee who happened to be obese and her supervisor who allegedly had an animus towards overweight people resulted in more than four years of agency inquiry and subsequent litigation before the employer obtained summary judgment.

Best practices:

Employers should understand that the ADA prohibits all forms of disability-based discrimination, which may include conditions not always regarded as a disability.  Supervisors and managers should be trained to treat everyone, especially subordinates, with respect and courtesy.  Derogatory comments, regardless of their nature, have no role in the workplace and are contrary to the expectations of an employee with supervisory or managerial authority.  Failure to properly train supervisors and managers could lead to years of costly litigation.

Guidance Issued for Use of FMLA to Care for an Adult Child

Contributed by Jon Hoag

This month, the U.S. Department of Labor (USDOL) issued an Administrator’s Interpretation and Fact Sheet to clarify when an employee may take FMLA leave to care for an adult child.  In order for a parent to take FMLA leave to care for a child age 18 or older, the parent must establish that:  (1) the child has a disability as defined by the Americans with Disabilities Act; and (2) the child must be incapable of self-care.  The USDOL issued guidance to clarify the age requirement, the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as related to the definition of a disability, and the guidance explains the FMLA leave available to parents whose son or daughter becomes disabled during military service.

The Age of Child at Onset of the Disability is Irrelevant

The guidance clarifies that the onset of a disability may occur at any age for purposes of the definition of a “son or daughter” under the FMLA.  There is no requirement for the disability to have occurred or been diagnosed prior to the age of 18.

ADAAA’ s Broader Definition of Disability Applies

The USDOL confirmed that the ADAAA broadened the scope of coverage and expanded the ADA’s definition of “disability.”  This expanded definition of “disability” is the one that applies to determine if an adult child has a “disability” for purposes of the FMLA.  The USDOL’s conclusion states very simply that the ADAAA’s expanded definition of the term “disability” will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities and that are incapable of self-care.  The guidance also notes that the child’s condition must also be a “serious health condition” under the FMLA, which will almost always be the case if the condition is a disability under the ADAAA.

Given that the ADAAA’s definition of disability is broad in scope and will be met in most cases, employers should review FMLA requests to care for an adult child with special attention given to the requirement that the parent be needed to care for the child because the child is incapable of self-care.  For FMLA leave purposes, an adult child will be considered “incapable of self-care” if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).  Examples of ADLs and IADLs are:


  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating


  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

FMLA Leave when Adult Child is Disabled During Military Service

The guidance also clarified that a parent of an adult child disabled during military service may be entitled to take more than the 26 workweeks within a 12-month period currently provided in the FMLA as military caregiver leave.  If the disability lasts longer than the single 12-month period, the parent may qualify for additional FMLA leave in subsequent FMLA periods to care for an adult child with a disability that is incapable of self-care.


As the USDOL guidance makes clear, the changes to the ADA definition of “disability” will undoubtedly allow more parents to take protected FMLA leave.  In addition to the increase in volume of FMLA leave requests, the other issue we expect to trouble employers is whether an impairment of short-term duration is a disability.  We will continue to monitor and report on these types of ADAAA cases because the EEOC’s regulations do not make it clear when impairments of short-term duration qualify as a disability.

Ten Steps to Comply with the ADA’s Interactive Process

Contributed by Allison Chaplick

When I was learning a foreign language, such as French, Spanish or Italian, a good rule of thumb teachers engrained in my brain was that to really get a grasp on a new word or phrase, you have to repeat or use that word or phrase ten times.  It seems like a lot to ask, but really, it holds true. This rule nicely translates in the language that at times can seem like Greek to us: the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and its interactive process.   

Now that the ADAAA’s definition of “disability” had been expanded to what seems to be the maximum extent possible, thus covering more individuals with disabilities than ever before, employers will now have to engage in the interactive process more than ever before.  Here are ten steps for understanding and properly using the interactive process:

  1. The interactive process is idealistically a means for determining what reasonable accommodations are available to allow a disabled employee (or applicant) to perform essential job functions.
  1. The interactive process requires an employer to be proactive and work with the employee so that both identify the employee’s limitations and accommodations which might enable the employee to continue working.
  1. The employer should initiate the interactive process by analyzing the employee’s job functions to establish the essential and non-essential job tasks and identify barriers to job performance by consulting with the employee to learn about the exact limitations and what types of accommodations would be most effective.
  1. Ways to engage in the interactive process include meeting with the employee, exchanging letters, holding telephone conversations, requesting information about the employee’s limitations, considering the employee’s requests and discussing reasonable and effective alternatives if the request is an undue burden.
  1. During the interactive process, the employer should also give the employee an opportunity to discuss his/her abilities, restrictions and ideas for an accommodation, and should also meet with the employee’s supervisor to discuss the reasonable accommodation.
  1. The employer’s response during the interactive process to a request for a reasonable accommodation should be “expeditious,” but need not be immediate.
  1. An employer who takes an active good faith role in the interactive process will not be liable if the employee refuses to participate in the interactive process or withholds essential information during the interactive process. 
  1. At the conclusion of the interactive process, unless an undue hardship is found, the reasonable accommodation provided should be effective to allow the employee to perform the essential functions of his/her job.
  1. An employer sufficiently engages in the interactive process where it grants an effective accommodation, but not necessarily the accommodation requested by the employee. 
  1. An employer is not engaging in the interactive process where the employer denies an employee’s request without providing a meaningful dialogue or explanation of its decision.

The U.S. Equal Employment Opportunity Commission has published a very informative guideline, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  to help employers understand their responsibilities and rights when a qualified employee (or applicant) with a disability requests a reasonable accommodation.