Labor & Employment Law I JULY 1, 2019

For ADA Protection, Obesity Must Have Physiological Basis

Many Americans are overweight, or even obese. When does this create a condition protected by the Americans with Disabilities Act?

Mark Richardson began working for the Chicago Transit Authority in 1993. He worked as a full-time operator from August 1999 until February 2012.

In early February 2010, Richardson was off work because he had the flu. He tried to return to work on February 19, but Advanced Occupational Medicine Services, the CTA’s third-party medical provider, stated that Richardson had uncontrolled hypertension and influenza, weighed over 400 pounds, and could not return to work until he controlled his blood pressure. CTA’s Disability Review Committee transferred Richardson to a status called Temporary Medical Disability-Area 605.

On September 13, 2010, AOMS reviewed Richardson’s fitness to return to work. AOMS found Richardson “physically fit to work as a bus operator,” but noted Richardson “must be cleared by safety prior to operating [a] bus.” CTA requires AOMS to report if a bus operator returning from extended leave weighs over 400 pounds because its bus seats are not designed to accommodate drivers weighing over 400 pounds.

On September 16, 2010, Richardson completed a special assessment. CTA’s Acting Manager of Bus Instruction, Marie Stewart, assigned bus instructors John Durnell and Elon McElroy to administer the test. During the assessment, Durnell and McElroy allegedly joked about Richardson’s weight.

After the assessment, Durnell and McElroy each completed a report. While Durnell concluded Richardson could drive CTA’s buses in a safe manner, both instructors noted several safety concerns.

Stewart prepared a memo to CTA’s Vice President of Bus Operations, Earl Swopes, concluding that “[b]ased on the Bus Instructors” observations and findings, the limited space in the driver’s area and the manufacturer requirements, it would be unsafe for Bus Operator Richardson to operate any CTA bus at this time.” She specifically referenced safety concerns.

CTA proposed a written agreement to resolve the situation. CTA would transfer Richardson back to Area 605 so he could work with doctors to lose weight and be subject to periodic monitoring. Richardson, turn, would release his ability to bring various causes of action. Richardson refused.

In March 2011, CTA nonetheless transferred Richardson to Area 605. In October 2011, CTA advised Richardson that he was approaching two years of inactive status, and that under CTA policy, he could extend his time in Area 605 by one more year by submitting medical documentation. Richardson did not submit documentation. In February 2012, CTA terminated his employment.

Richardson brought a complaint against CTA, alleging it violated the ADA by refusing to allow him to return to work because it regarded him as being too obese to work as a bus operator. Richardson and the CTA ultimately filed cross-motions for summary judgment. The district court denied Richardson’s motion and granted CTA’s motion. It held, based on the language of the ADA and the pertinent EEOC regulation and interpretive guidance, 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.” The district court entered judgment in CTA’s favor, and Richardson appealed.

On appeal, Richardson and the CTA disagreed about whether his extreme obesity—even without evidence of an underlying physiological condition—meets the definition of physical impairment and is thus an actionable disability for ADA purposes. The appeals court noted that three sister circuits (the Second, Sixth, and Eighth Circuits) had considered the question. Each held that obesity is an ADA impairment only if it is the result of an underlying physiological disorder or condition.

The court of appeals refused to defer to EEOC guidance that is contrary to the text of the regulation it purports to interpret. The EEOC defines physical impairment as a “physiological disorder or condition.” 29 C.F.R. § 1630.2(h)(1). In the court’s view, it is directly contrary to that definition to consider a physical characteristic such as weight (even if outside the “normal range) a physical impairment absent evidence of an underlying physiological condition.

Richardson failed to not present any evidence suggesting an underlying physiological disorder or condition caused his extreme obesity. Without such evidence, the court could not call Richardson’s extreme obesity a physical impairment within the meaning of the ADA and the EEOC regulation.

Richardson argued that even if extreme obesity is not itself an impairment, he was still protected because the CTA perceived his obesity to be a physical impairment. Richardson had to show that the CTA took adverse action against him based on the belief that his condition was an impairment—as the ADA defines that term—not merely based on knowledge of Richardson’s physical characteristic.

There was, however, no evidence Stewart, Swopes, or anyone else at the CTA believed Richardson’s excessive weight was caused by a physiological disorder or condition. To the contrary, the evidence suggested CTA perceived Richardson’s weight as a physical characteristic that made it unsafe for him to drive. These facts did not permit a finding that CTA regarded Richardson as disabled for purposes of ADA liability.

The district court thus properly held that CTA could not have perceived Richardson as having a physical impairment within the ADA’s definition. Its judgment was affirmed.

Mark Richardson v. Chicago Transit Authority, ___ F.3d___, 2019 WL 2442786 (7th Cir. 2019).