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No, at least not yet. There is a growing body of cases (pun intended), seemingly related to the growing waistlines in the U.S., where applicants for employment have alleged that they were not hired because of their mass. While it is clear from the regulations that more common weight control issues are not within the meaning of “disability” under the Americans with Disabilities Act (ADA), over recent years failed applicants and the EEOC have put forward arguments that “morbid obesity” is a physical impairment, because it’s a physiological disorder. Morbid obesity is generally defined as 100% over the normal body weight of an individual, so it is still a narrow, but increasingly less narrow subset of overweight individuals who could qualify under this definition.

So far courts have rejected the notion that morbid obesity is a physiological impairment. There is a current case awaiting a decision from the Eighth Circuit Court of Appeals addressing this issue head on. Although the court is expected to reject the argument put forth by the failed applicant for employment and the EEOC, it is telling that the federal government (through the EEOC) is pressing the position that morbid obesity is a disability within the meaning of the ADA. In a manner it appears as though the government is reacting to the increasing issue of obesity and may, in the not so distant future, amend its own regulations to interpret the ADA as protecting against morbid obesity. Whether the regulations would be a valid interpretation of the ADA itself would be a significant question for the courts, but as the conversation about obesity being a national epidemic continues, and is described in medical terms, it becomes increasingly likely (I believe) that we will see regulatory and perhaps even legislative changes to the ADA to clearly protect at least morbidly obese individuals under the ADA. If this were to happen it would then protect such applicants and employees from discrimination based on their condition (weight/size) and require employers to reasonably accommodate them.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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