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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 association.

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.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.