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OBESITY AS A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT AND THE AMENDMENTS AFFECT ON OBESITY CLAIMS UNDER THE PENNSYLVANIA HUMAN RELATIONS ACT: SHOULD EMPLOYERS ANTICIPATE A BIG CHANGE? Amie A. Thompson INTRODUCTION History A. The Americans with Disabilities Act B. The Amendments to the Americans with Disabilities Act The Anatomy of an Obesity Claim Under the ADAAA A. Is Obesity a Physical or Mental Impairment Substantially Limiting a Major Life Activity? B. Can Obesity be Regarded as a Disability? The Affects of the ADAAA on Obesity Claims Under the Pennsylvania Human Relations Act CONCLUSION INTRODUCTION Imagine you are the owner of a factory, and you have just begun a long day of promising interviews for a new supervisor position. Your first candidate walks through the door and he is a five-foot three-inch tall man weighing more than 340 pounds. You respectfully greet him and review his impressive credentials. However, you catch yourself thinking about how his weight could possibly affect his work performance. You anticipated that his obesity might put him at a greater risk of developing serious illnesses, thus promoting absenteeism and increasing the likelihood of workers' compensation claims. You also fear that should there be an emergency in your factory, he may pose a J.D. Candidate Spring 2010, Duquesne University School of Law; B.S., University of Pittsburgh, 260 Duquesne Business Law Journal [Vol. 12:259 safety threat or be unable to move quickly enough to escort your employees out safely. Based on these considerations, you decide not to hire this candidate. Was this proper or have you just subjected yourself to liability? This is the question many business employers have faced in the past, and are now facing once again under the Americans with Disabilities Act Amendments Act of 2008 ( ADAAA or Amendments ). 1 This comment explores, in part one, the history of the Americans with Disabilities Act of 1990 ( ADA ) 2 leading up to the ADAAA. Part one also observes the general changes implemented by the ADAAA. Part two examines a claim in light of these changes, with specific attention to claims of obesity as a disability. The affects of the ADAAA on obesity claims under the Pennsylvania Human Relations Act ( PHRA ) 3 are considered in part three. The comment concludes with the observation that while the ADA provided little or no protection for obese individuals who claimed to be disabled, the changes under the ADAAA may allow courts to find for obese individuals who claim they have been discriminated against on the basis of their obesity. 1. History A. The Americans with Disabilities Act Congress intended to provide protection for employees in the private sector when it first enacted the ADA. 4 Essentially, the purpose of the ADA was to extend protection to those employees not currently covered by the Rehabilitation Act of Although the Rehabilitation Act protects handicapped individuals 6 against discrimination by federal agencies and any program or activity receiving Federal finan- 1. See Americans with Disabilities Act Amendments Act of 2008 (hereinafter ADAAA or Amendments ), Pub. L. No , 122 Stat. 3553, 110th Cong., 2d Sess. (Sept. 25, 2008) (effective Jan. 1, 2009) U.S.C (2006) PA. STAT. ANN. 951 (West 2009) U.S.C Rehabilitation Act of 1973, 29 U.S.C. 794 (2006). 6. Disability under the ADA is interchangeable with individual with handicaps in section 7(8) (B) of the Rehabilitation Act. Substituting the word disability with handicap represents an effort to make use of up-to-date, currently accepted terminology. H.R. Rep. No , pt. 2, at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332. 2010] Americans with Disabilities Act Amendments Act 261 cial assistance, 7 the ADA protects employees with disabilities against discrimination by any employer with fifteen or more employees. 8 The two Acts cover different employers, but the definition used to analyze their coverage was once identical. 9 Therefore, at the time, claims of discrimination based on obesity that were brought under the two Acts could be analyzed interchangeably. The ADA provides that, concerning employment practices, no covered entity shall discriminate against a qualified individual with a disability because of the disability. 10 Discriminatory practices under the ADA included a failure to provide reasonable accommodations to a qualified employee with a disability, unless that accommodation would impose an undue hardship on the operation of the business. 11 To be eligible for protection under ADA, prior to the Amendments, a claimant had the burden of proving that he had a disability within the meaning of the statute and that he was otherwise qualified for employment. 12 Historically, an individual s greatest challenge before the court had been qualifying his ailment as a disability under the ADA. Overcoming this hurdle was particularly difficult in light of strict and controversial decisions in district courts, courts of appeal, and the Supreme Court denying coverage to those with common ailments such as extremely poor eyesight, diabetes, epilepsy and HIV. This is one particular facet of the Act that is expected to change under the Amendments, making it easier for claimants, such as our fictional employee, to recover. To make out a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that he (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action U.S.C. 794(a) (2006) U.S.C (5) (2006). 9. H.R. Rep. No , pt. 2, at 23 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332 ( The ADA incorporates many of the standards of discrimination set out in regulations implementing section 504 of the Rehabilitation Act of ). Compare 42 U.S.C (2) (2006) (outlining the ADA's definition of disability ), with 29 U.S.C. 705(20)(A) (2006) (defining individual with a disability in the Rehabilitation Act) U.S.C (a) (2006) U.S.C (b)(5)(A). 12. See Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the plaintiff has the burden of proving a prima facie case of discrimination before the burden shifts to the covered entity). 262 Duquesne Business Law Journal [Vol. 12:259 because of that disability. 13 Disability is defined under the ADA as: (A) a physical or mental impairment that substantially limits one of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such impairment. 14 In the context of employment, the ADA prohibits discrimination against a qualified individual on the basis of a disability, which includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability... and denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability. 15 Qualified individual is defined by the statute as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 16 The first of the two most significant cases to interpret the language of the ADA was Toyota Motor Mfg., Ky., Inc. v. Williams, 17 where the Supreme Court held that the terms substantially and major required strict interpretation to create a demanding standard for qualifying as disabled. 18 The Court found that to be substantially limited in performing a major life function, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people s daily lives. 19 The second significant case to interpret the ADA was Sutton v. United Air Lines. 20 Here, the Supreme Court found that any disability must be examined in its mitigated state. 21 Thus, the claimant, who suffered from extremely poor eyesight, could not establish that she 13. Stultz v. Reese Bros., Inc., 835 A.2d 754, 760 (Pa. Super. 2003). See also Zahavi v. PNC Financial Services Group, Inc., 2009 WL , at *1 (W.D. Pa. Mar. 31, 2009) (citing Turner v. Hershey Chocolate U.S.A., 440 F.3d 604, 611 (3d Cir. 2006)) U.S.C (2) U.S.C U.S.C (8) U.S. 184 (2002). 18. Toyota, 534 U.S. at Id. at U.S. 471 (1999). 21. Id. 2010] Americans with Disabilities Act Amendments Act 263 was a person with a disability under the ADA because her poor eyesight was correctable by glasses. 22 These two cases, which narrowly interpreted the ADA, severely limited individuals with a variety of common impairments from stating a claim under the statute. This prompted Congress to make substantial changes to the Act. B. The Amendments to the Americans with Disabilities Act On September 25, 2008, the ADAAA was signed into law. 23 The ADAAA became effective on January 1, 2009, and significantly amended the ADA. 24 Although the United States Supreme Court had interpreted and reinterpreted the definition of disability over the years, Congress overturned many of these interpretations in the ADAAA. 25 Specifically, the ADAAA pre-empts the Supreme Court s definition of substantially limits, stating that the Court s standard was too high, and that substantially limits should be interpreted more broadly. 26 In addition, the ADAAA prohibits the consideration of mitigating measures in determining if an individual has a disability, and further clarifies that an impairment, which substantially limits a single major life activity, need not limit other major life activities to be considered a disability. 27 Finally, the Amendments provide that an impairment which is episodic or in remission should be considered a disability if it would substantially limit a major life activity when active. 28 The Equal Employment Opportunity Commission ( EEOC ) and U.S. Department of Justice Civil Rights Division have begun to provide guidance on interpreting the ADAAA. On September 23, 2009, the EEOC published its notice of proposed regulations to implement 22. Id. 23. See Americans with Disabilities Act Amendments Act of 2008, Pub.L. No , 112 Stat. 3553, 110th Cong., 2d Sess. 24. Id. 25. Id. See also Primer on the ADA Amendments Act of 2008, available at (listing all changes) Stat. 3553, sec. 2, a(8) Stat. 3553, sec. 2, b(2); sec. 4(C) Stat. 3553, sec. 4(D). 264 Duquesne Business Law Journal [Vol. 12:259 the provisions of the ADAAA in the Federal Register. 29 It is expected that, when the public comment process is complete and the regulations become final, more individuals with recognized disabilities will be protected, requiring employers to reasonably accommodate these employees. This begs the question of whether, under the ADAAA, our fictional employee could state a claim for discrimination on the basis of his obesity. 2. The Anatomy of an Obesity Claim Under the ADAAA A. Is Obesity a Physical or Mental Impairment Substantially Limiting a Major Life Activity? Currently, there is dispute as to whether obese individuals are disabled under the ADA. Neither the Act nor the Amendments define physical or mental impairment, instead leaving that task to the applicable regulations. Prior to the Amendments, the Code of Federal Regulations stated that the phrase physical or mental impairment included, but was not limited to: such contagious and noncontiguous diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning dis Fed. Reg (Sept. 23, 2009) (to be codified at 29 C.F.R. pt. 1630). To be consistent with the provisions of the ADAAA and Congress expressed expectation of the interpretation of the Act, the proposed EEOC rule: Provides for a broad interpretation of the definition of disability ; Revises the EEOC regulations defining the term substantially limits by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the standard and by deleting certain language to effectuate Congress clear instruction that substantially limits is not to be construed to require the level of limitation, and the intensity of focus applied by the Supreme Court in prior cases; Expands the definition of major life activities through two non-exhaustive lists; Provides that mitigating measures other than ordinary eyeglasses or contact lenses shall not be considered in assessing whether an individual has a disability; Changes the definition of regarded as so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity; Provides that actions based on an impairment include actions based on symptoms of an impairment; Provides that individuals covered only under the regarded as prong are not entitled to reasonable accommodation. Id. 2010] Americans with Disabilities Act Amendments Act 265 abilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. 30 Although this list was non-exhaustive, any reference to obesity was noticeably absent. Furthermore, the Interpretive Guidance created by the EEOC on Title I of the ADA provided that except in rare circumstances, obesity [was] not considered a disabling impairment. 31 The EEOC regulations further explained that [t]he definition of impairment [did] not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within normal range and are not the result of a physiological disorder. 32 Prior to the ADAAA, major life activities were also limitedly defined. 33 However, the ADAAA now provides two non-exhaustive lists of major life activities under the headings: Manual Tasks 34 and Major Bodily Functions. 35 It is possible that these new lists will sweep in many illnesses that might not have been considered disabilities in the past. For example, whether one could now argue that an obese person has a substantial limitation of the metabolic system, or the neurological appetite-suppressing system, is yet to be explored under the new Amendments. Courts that have been presented with the issue of obesity as a disability have, most often, held that obesity is not recognized under the C.F.R (2008); see also 29 C.F.R (h) (2003) (ADA regulations promulgated by the Equal Employment Opportunity Commission ( EEOC ) (substantially same definition)) C.F.R. 1630, App (j) C.F.R. 1630, App (h) (emphasis added) C.F.R. 1630, App (j) ( Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. ) Stat. 3553, sec. 3 2(A) ( caring for oneself... seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. ) Stat. 3553, sec. 3 2(B) ( operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. ). Similarly, special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions are major bodily functions not included in the statutory list of examples but included in the EEOC s proposed regulations to provide further illustrations. 29 C.F.R. 1630, App (i) (2). 266 Duquesne Business Law Journal [Vol. 12:259 ADA. However, these opinions were rendered prior to the ADAAA, and even the most current opinions have not applied the Amendments retroactively. 36 Thus, the courts prior interpretations of the ADA will, most likely, be adjusted in light of the ADAAA. Still, it is worth exploring the rationale behind these prior holdings. The United States District Court for the Southern District of Florida collected cases and declared that courts have uniformly held that obesity is not a qualifying impairment, or disability, unless it is shown to be the result of a physiological disorder. 37 The United States District Court for the Eastern District of Pennsylvania similarly held in Marsh v. Sunoco, Inc. 38 that a plaintiff s weight would not bring him under the protection of the ADA, unless it resulted from a physiological disorder. 39 These prior rationales seem to be consistent with the recent Amendments to the ADA, providing that bodily function limitations can now be considered a major life activity. Therefore, an individual with an impairment, including morbid obesity, and possibly simple obesity or obesity-related health conditions that limit a major life activity related to bodily functions, may successfully maintain a claim under the ADAAA. 36. See, e.g., Zahavi, 2009 WL at *6 n. 10 (citing EEOC v. Agro Distribution LLC, 555 F.3d 462, 470 (5th Cir. 2009); Supinski v. United Parcel Serv., Inc., Civ. A. No. 3: CV , 2009 U.S. Dist. LEXIS 3143 at *16 n. 6 (M.D. Pa. Jan. 16, 2009) (noting that every court to have addressed the issue of retroactivity concluded that the 2009 amendments cannot be applied retroactively to conduct that preceded its effective date) (citing Walstrom v. City of Altoona, Civ.A.No. 3: , 2008 U.S. Dist. LEXIS at *5 (W.D. Pa. Dec. 29, 2008)). 37. Merker v. Miami-Dade County Fla., 485 F.Supp.2d 1349, 1353 (S.D. Fla. 2007) (citing EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, (6th Cir. 2007)) ( we hold that to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition. ); Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997) ( obesity, except in special cases where the obesity relates to a physiological disorder, is not physical impairment within the meaning of the [ADA] statutes. ); Coleman v. Georgia Power Co., 81 F.Supp.2d 1365, 1369 (N.D. Ga. 2000) (same); Fredregill v. Nationwide Agribusiness Ins. Co., 992 F.Supp. 1082, (S.D. Iowa 1997) (collecting cases)) WL , at *4 (E.D. Pa. Dec. 6, 2006). 39. Id. 2010] Americans with Disabilities Act Amendments Act 267 B. Can Obesity be Regarded as a Disability? Despite the fact that a person may not have a recognized disability, should that person be regarded as having a disability by his employer, he may have a claim under the ADAAA. 40 Under the ADA, the regarded as prong of the disability definition referred to being regarded as having a physical or mental impairment that substantially limit[ed] one or more of the major life activities of [the] individual. 41 Thus, prior to the ADAAA, an individual had to establish both components which were inherent in the definition: that he was regarded as having (1) a physical impairment within the meaning of the ADAAA, which (2) substantially limited him in working. The first component was satisfied if he has an actual physical impairment, or if not impaired, was treated as if he had such an impairment. 42 Now under the ADAAA, an individual does not need to establish that the disability he or she is regarded as having is a qualified disability under the ADA. 43 All that is required under the ADAAA is a showing of discrimination because of an actual or perceived physical or mental impairment. 44 Therefore, if an individual is perceived as limited because of his weight, that person might be able to satisfy the Act s requirements, even if obesity or simply being overweight is not considered an impairment under the Act. Evidence, however, which consists only of a belief that a physical characteristic presents an undesirable image or appearance may still not support an inference that an employer regards an employee s weight problem as being connected to a physiological disorder or condition. 45 Most regarded as obese and disabled cases under the ADA cite to Cook v. State of Rhode Island Dep't of Mental Health, Retardation 40. See 42 U.S.C (2)(C); 122 Stat U.S.C (2)(A). 42.
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