Seventh Circuit: Obesity Alone is Not a Disability

The Americans with Disabilities Act (ADA) did not protect a severely obese Chicago bus driver from losing his job for being unable to do it safely, the Seventh Circuit held last month. Richardson v. Chicago Transit Authority (7th Cir. 2019). The ADA would only provide protection, the court said, if his weight were both outside normal range and the result of an underlying “physiological disorder or condition.”

Mark Richardson worked as a full-time bus driver for the Chicago Transit Authority from 1999 until 2012. Between January 2005 and May 2009, Richardson’s weight increased from 350 to 566 pounds. Richardson’s ability to safely do his job came under scrutiny after he was examined following a routine illness. After failing a subsequent safety assessment, Richardson was offered an opportunity to enter a paid, supervised weight-loss program to restore him to duty. Richardson refused.

Richardson’s superiors nonetheless sent him to the program, where he remained for two years. He was told he could qualify for a third year upon submitting documentation, but he refused and was terminated. Richardson filed a charge of discrimination with the EEOC, and upon obtaining a right-to-sue letter, sued Chicago Transit Authority, alleging that it refused to return him to work because it regarded him as being too obese to work as a bus operator.

The trial court observed that “to qualify as a protected physical impairment, claimants under the ADA must show that their severe obesity is caused by an underlying physiological disorder or condition.” Because Richardson could present no such evidence, the trial court entered judgment in favor of Chicago Transit Authority.

On appeal, Richardson’s success hinged on his ability to establish he was discriminated against “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” In other words, Richardson had to demonstrate that his extreme obesity was either an actual impairment or that his employer perceived it as such.

Seeking guidance from other jurisdictions, the court observed that the Second, Sixth, and Eighth Circuits, along with a majority of district courts, have held that obesity is an ADA impairment only if it is the result of an underlying “physiological disorder or condition.” Joining the Second, Sixth, and Eighth Circuits, the court held that Richardson’s obesity was therefore not a disability under EEOC regulations.

Turning to Richardson’s “regarded-as” argument, the court stated that to prevail, Richardson would need to show that his employer terminated him because it believed his overweight condition was caused by an underlying physiological disorder or condition.

The court concluded that while Richardson was, in fact, terminated because of his weight, there was no evidence Chicago Transit Authority believed his weight was caused by an underlying medical condition. To the contrary, the court held, Richardson’s employer perceived his weight as a physical characteristic that made it unsafe for him to drive. Accordingly, the court upheld the trial court’s decision to dismiss Richardson’s case.

While the Americans with Disabilities Act has tended to define more conditions as “disabilities” since it was amended in 2009, employers should not assume that every condition automatically qualifies. For assistance with ADA matters, please contact your member representative.