Tuesday, November 14, 2017

Richardson v. Chicago Transit Authority: Is being super short an impairment protected by the Americans with Disabilities Act?

Me and my mom (I'm only 5'-3")
In Richardson v. Chicago Transit Authority, No. 1:16-cv-3027 (N.D. Ill. Nov. 13, 2017), District Court Judge John Blakey ruled that severe obesity by itself is not a physical impairment covered by the Americans with Disabilities Act, and is only covered if it is the result of a physiological disorder. Judge Blakey's decision is based on an EEOC regulation and guidance, and it is consistent with the conclusion reached by several courts of appeals, including the Eighth Circuit in Morriss v. BNSF Railway. The EEOC, however, interprets its regulation and guidance more broadly to cover severe obesity that is based on a physiological disorder or that is outside the "normal" range. As discussed below, I agree with the EEOC, but I also note that the EEOC's interpretation has potentially far-reaching implications that have not been acknowledged by the EEOC.

The ADA generally prohibits an employer from discriminating against an employee because of an actual or perceived impairment. Thus, it is necessary to understand what constitutes an "impairment."
EEOC regulation 29 C.F.R. § 1630.2(h)(1) defines a physical impairment as "[a]ny physiological disorder or condition . . . affecting one or more body systems." The EEOC's interpretive guidance on that particular regulation explains:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term "impairment" does 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. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
In the instant case, John Richardson contended that, pursuant to this EEOC guidance, obesity need only be the result of a physiological disorder if it is within the normal range. Judge Blakey, however, agreed with the Eighth Circuit's contrary interpretation in Morriss:
The court considered the interpretive guidance in its entirety, including its provision that other "conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments." The court concluded that "a more natural reading of the interpretive guidance is that an individual's weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder."
In my view, Richardson and the EEOC make the better argument. The regulation refers to a physiological disorder or condition. Thus, the regulation suggests that a physical impairment need not be based on a physiological disorder. Confusingly, however, the unqualified term "condition" is so broad that a literal interpretation would cover any physical condition that affects one or more body systems. This is where the guidance comes to the rescue. The guidance, in turn, limits the coverage of conditions to those that are outside the normal range.  As clarified by the guidance, a physical impairment under the ADA includes either a physiological disorder or a condition that is outside the normal range, affecting one or more body systems.

The alternative reading effectively ignores the regulation's latter coverage of a "condition . . . affecting one or more body systems." Granted, the regulation is not a model of clarity, and the guidance could have come straight out and said that conditions are only covered if they are outside the normal range, but the broader reading of the regulation and the guidance still seems to be the better one.

As noted by Judge Blakey, courts that have adopted a narrow interpretation of the EEOC's guidance have considered the purposes of the ADA and refused to "open up . . .  the ADA 'to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered' by the Act.'"

While I don't think such concerns are sufficient reason to reject the EEOC's interpretation, I also don't think they're entirely unfounded. If an individual's weight can constitute an impairment if it falls outside the normal range, then the same must be true for other physical conditions, including eye color, hair color, left-handedness, and height. For instance, if eye color falls outside the normal range, it would constitute an impairment. What does it mean, you wonder, for eye color to fall outside the normal range? Beats me. Let's cross that bridge when we get to it. Height is more analogous to weight, though there's still the question of how short is short enough to be considered outside the normal range.

It's not clear what the practical consequences would be of covering a broad range of physical attributes. I doubt many employers discriminate against someone because of eye color or hair color. Height discrimination is probably more common, and maybe also discrimination based on left-handedness, but such claims still seem likely to be rare, and if they do arise, there's no reason to think they're less worthy of coverage than discrimination based on obesity.

More problematic might be the failure to select an appropriate measure for defining the normal range. As to weight, for instance, the EEOC relies on the body mass index (BMI), but that index defines normal range very narrowly -- as being neither underweight nor overweight -- resulting in over two-thirds of Americans being classified as weight-impaired. Surely, even if some extremely overweight people can be considered impaired merely because they are so overweight, a measure that makes ADA coverage the rule rather than the exception goes too far. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.