Employers often express concern about obese employees in physically demanding jobs or jobs that involve driving a motor vehicle. Obesity causes increased risk of numerous conditions that can cause sudden incapacitation, such as heart attack or stroke.[1] It is also linked with sleep apnea, which can cause exhaustion.[2] As a result, employers often fear that an employee’s obesity creates a safety risk for the employee, fellow employees, and, in some cases, the public. However, employers are skittish about benching these employees for fear of potential liability under the Americans with Disabilities Act (“ADA”).
Employers in Indiana can take some comfort in that the Seventh Circuit Court of Appeals issued several opinions in 2019 that have narrowed the scope of employees who are protected under the Americans with Disabilities Act (“ADA”) due to obesity. While this is encouraging for employers, the current state of the law challenges common sense and makes an employer’s evaluation more—not less—complex.
First, the Seventh Circuit held that obesity alone is not a physical impairment under the ADA unless there is evidence that obesity is caused by an underlying physiological disorder or condition.[3] While Richardson is positive for employers because it forecloses carte blanch ADA protection for every obese person, it adds complexity for employers who must now consider whether an employee’s obesity is caused by an underlying physiological disorder or condition before making employment decisions. Furthermore, what specific policy goal does the Richardson rule promote? If obesity is not an “impairment” that qualifies under the ADA, why should obesity be protected when it is the manifestation of an underlying physiological disorder? Surely the employer is not making its decision to remove an obese employee from a safety sensitive job on the basis of the employee’s thyroid disorder that caused or contributed to the obesity. Unfortunately, that policy question is one for congress—not the Seventh Circuit—and congress isn’t solving many problems these days.
Most recently, the Seventh Circuit held that an obese employee or applicant is not protected by the ADA when the employer discriminates because it believes the obesity increases the risk of future impairment.[4] Thus, a company does not violate the ADA if it terminates or demotes an obese employee from a safety sensitive role because the company believes he may develop a heart condition or sleep apnea in the future. However, the record must be clear that the obese employee does not currently suffer from any of those feared obesity-related impairments.[5] The Seventh Circuit noted its decision in Shell is consistent with prior rulings from the Eighth, Ninth, and Tenth circuits.[6] As the federal appellate courts coalesce around this interpretation of the ADA, we must ask what policy goal is served by a rule that says it is okay to remove an obese employee from a position because he might develop dangerous obesity-related conditions in the future but it might not be okay to remove him if he is currently experiencing those dangerous symptoms?
Despite these positive rulings from the Seventh Circuit in 2019, employers will likely continue to struggle to deal with employees in safety-sensitive jobs who have medical conditions that cause safety risks. Employers who take adverse employment action against an employee on the basis of the employee’s obesity or on the basis of a condition that causes a safety hazard without going through the individualized ADA review process may still face a complaint for discrimination.
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[1]https://www.mayoclinic.org/diseases-conditions/obesity/symptoms-causes/syc-20375742
[2]Id.
[3]Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).
[4]Shell v. Burlington Northern Santa Fe Ry., 2019 U.S. App. LEXIS 32367, *8 (7th Cir. 2019).
[5]Id. at *7.
[6]Id. at *10-11.
Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.