Employment / 2 min read
The Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA”) protect most job applicants and employees from discrimination, harassment, or retaliation based on disability. These acts protect people who have a qualified physical or mental impairment that substantially limits major life activities. Many courts have not qualified obesity as a disability on its own.
At least eight federal courts and several state courts throughout the United States have considered this issue and held that obesity is not a physical impairment without also being the symptom of an actual or perceived underlying physiological disorder or condition. In Texas, however, courts have reached a different conclusion—holding that obesity itself may be a disability, even without evidence of an underlying health condition. Two Texas state courts have held that obesity alone, even in the absence of an underlying physiological disorder or condition, may be an actual or perceived disability protected by both the ADA and TCHRA.
The first Texas case is the 1999 Morrison v. Pinkerton Inc. Although the Houston Court of Appeals ultimately held that the employee did not present enough evidence to succeed on his disability discrimination claim, the court found that:
- obesity can be a physical impairment if it "substantially limited [the employee] in a major life activity," and
- obesity can be a perceived disability if the employer "regards the obesity as a disorder that substantially limited him in a major life activity."
In Texas Tech University Health Sciences Center-El Paso v. Niehay, the El Paso Court of Appeals recently considered Dr. Niehay’s allegation that she was unlawfully discriminated against because her morbid obesity was regarded as a disability. Following the Houston appellate court's logic in Morrison, the El Paso Court of Appeals held that, under the TCHRA, Dr. Niehay was not required to show that her employer believed the perceived impairment arose from a physiological cause. Instead, morbid obesity can be considered a physical impairment in a "regarded as" claim if Texas Tech viewed her as being impaired from her morbid obesity. The court further concluded that the evidence showed that Texas Tech viewed Dr. Niehay's weight to be an impairment and terminated her residency for pretextual reasons.
Although the U.S. Fifth Circuit Court of Appeals has not opined on this issue, several federal district courts in the Fifth Circuit have in Equal Employment Opportunity Commission v. Texas Bus Lines (Texas, 1996); Melson v. Chetofield (Louisiana, 2009); Lowe v. American Eurocopter, LLC (Mississippi, 2010); and Equal Employment Opportunity Commission v. Resources for Human Development, Inc. (Louisiana, 2011). The courts in all these cases held that obesity can be an actual or perceived disability under the ADA, even absent an underlying physiological disorder or condition.
Based on the state and federal cases discussed above, obesity may be a disability under the ADA and TCHRA. As such, employers may want to ensure that all anti-discrimination training includes that obesity is a potential disability that may require an employee to be accommodated, review job descriptions to ensure the physical requirements of each position are accurately described and verify that job applications ask whether the applicant is able to perform the essential functions of the job.