Obesity & the ADA in Employment Decision-Making
Nobody likes comments about their weight (Heaven
help the person who makes one about mine), and most people have learned that
weight is a subject best approached with caution. Employers, for their part, would
be well-served to exercise some caution as well. Although conversations
surrounding obesity may be necessary for employment decisions related to certain
positions, including positions often considered “safety-sensitive,” those
conversations remain fraught with opportunities for actionable statements.
Admittedly, my admonitions are somewhat
contrary to the current state of case law. Many courts to consider the issue
have determined that obesity is only an impairment under the Americans with
Disabilities Act (the “ADA”) if it is the result of an underlying physiological
disorder or condition. Still, there are cases holding that extreme obesity may
be an impairment. Modern science also tells us that obesity often comes
hand-in-hand with actual physiological impairment. Since under the ADA conversations
about impairment in the hiring context can expose employers to liability,
conversations about weight and obesity can end up being similarly risky by
A recent Seventh Circuit case, Shell v. Burlington Northern Santa Fe
Railway Company, provides a good reminder. Ronald Shell applied for a
position as intermodal equipment operator, a “safety-sensitive” position at
BNSF. He received an offer conditioned upon passing a medical evaluation.
During the medical evaluation, conducted by BNSF’s chief medical officer, Shell
apparently said that his overall health was “very good” and did not otherwise
report any medical conditions. The evaluation seemed to have found Shell to be
in good health, except that his measured weight and height resulted in a BMI of
over 40. He was thus disqualified from employment based on a BNSF policy that prohibited
employees with BMIs of over 40 from being employed in a safety-sensitive
position. The policy was based on the logic that their BMI indicates a
substantially high risk of developing conditions that could result in sudden
incapacitation on the job (e.g., sleep apnea, diabetes, heart disease, etc.).
Although the Seventh Circuit found no
wrongdoing on the part of BNSF, its decision relied in part on the fact that
BNSF had no information which suggested that Shell had any kind of impairment.
Crucially, Shell seems to have been in enviably good health. Had the record
reflected a few comments regarding Shell’s ability to sleep at night, or had
the medical evaluation turned up evidence of high blood pressure, the outcome
may have been different.
In a nutshell,
conversations related to weight can easily become conversations regarding
protected physical impairments and should be treated with great care and
caution. Employers should be also aware that, regardless of the ADA, some
cities and states are passing laws that make weight a protected characteristic.