In a recent press release, the American Medical Association (AMA) set forth its new policy recognizing obesity as a medical disease. Although the AMA’s determination has no legally binding effect, its position reignites the question of whether obesity is a disability under the Americans with Disabilities Act (ADA) and could bolster ADA disability claims by employees and applicants for employment.

Currently, the EEOC regards those who are “morbidly obese” (defined as weighing twice the normal body weight) as physically impaired and generally disabled under the ADA. In contrast, under most circumstances, those who are merely overweight or obese—without other exacerbating medical conditions—are not substantially limited in some major life activity, so they are not necessarily considered disabled. The AMA’s new position puts pressure on policymakers to place obesity under the umbrella of ADA-defined disabilities. Even if the EEOC does not rush to expand the definition of disability, employers should be aware that overweight employees may still be protected under the ADA. 

The ADA provides that a disabled individual is one who can show:

1. S/he has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, learning, or working); or
2. S/he has a history of a disability (such as a cancer that is in remission); or
3. S/he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if s/he does not have such an impairment).

Most plaintiffs in employment lawsuits bring disability claims under the first prong, alleging that the employer discriminated against them because of their medical condition. In 2009, the Americans with Disabilities Act Amendments Act (ADAAA) significantly broadened the definition of “disability,” making it much easier for an impaired employee to establish that he or she is “disabled.” Even under the expanded definition of “disability,” individuals who are overweight or obese are often not substantially limited in a major life activity such as walking or working, in the same way a person who is morbidly obese almost certainly is. However, these employees may still be protected if they are “regarded as” impaired.

Under the ADAAA, an employee who does not suffer from a condition that substantially limits a major life activity may still be deemed “disabled” if the employer “regards” him or her as having an impairment. Therefore, treating an employee adversely (with regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment) because the employer perceives him or her as impaired, is a violation of the law regardless of whether the perceived impairment actually limits or is believed to limit a major life activity. So long as the perceived impairment is not both transitory (lasting 6 months or less) and minor, adverse action taken against the employee on the basis of the perceived impairment could be considered discriminatory.

So what does this mean for the obese applicant who is denied a job at the department store makeup counter because the employer believes customers wish to be serviced by a slender makeup artist? Or for the overweight corporate employee who is consistently passed over for promotion because the company thinks the individual’s weight does not project a professional image? If these individuals can show that the failure to hire or promote was because the employer believed the individual was impaired by his or her weight, the employee can articulate a disability discrimination claim under the “regarded as” theory.¹ Given that many people with weight problems struggle for years and sometimes a lifetime against the battle of the bulge, a weight problem may not be seen as transitory. The AMA’s new position that obesity is a “disease” may be used to support a claim that such a condition should not be considered “minor.”

In short, employers should be wary of judging their employees based on their weight at all. Although an overweight employee may not be substantially limited by his or her condition, adverse treatment against that employee could still result in a discrimination claim. While the AMA’s new position could generate additional research, treatment, or care for obese patients, the position also bolsters employees’ ability to hold their employers accountable for discriminatory treatment based on their weight.

¹ It should be noted that certain jurisdictions, including the state of Michigan and the city of San Francisco, statutorily prohibit discrimination based on weight. Other jurisdictions, such as the District of Columbia, prohibit discrimination based on appearance, which has been construed to include discrimination based on a person’s weight.

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