Sunday, August 18, 2019

Naumovski v. Norris: The McDonnell Douglas Framework and But-for Causation

Grand Canyon Centennial - Ribbon Falls
In Naumovski v. Norris, 18-2663 (Aug. 12, 2019), the Second Circuit held that a plaintiff bringing a section 1983 claim alleging unconstitutional sex discrimination is required to establish that sex was a but-for cause, not merely a motivating factor, of the the challenged action. The court explained that, as under Title VII of the Civil Rights Act of 1964, a section 1983 plaintiff can rely on the McDonnell Douglas framework to establish but-for causation. So far, so good. Where the court goes wrong is in not recognizing that establishing pretext under the McDonnell Douglas necessarily means that a plaintiff has established but-for causation.

The court explained:

To establish "pretext" under Title VII, a plaintiff need only establish "that discrimination played a role in an adverse employment decision." In other words, a Title VII plaintiff need only prove that the employer's stated non-discriminatory reason was not the exclusive reason for the adverse employment action. By contrast, to establish "pretext" under § 1983, a plaintiff must establish that the employer's stated reason would not, alone, constitute a sufficient basis for pursuing an adverse action. In other words, a § 1983 plaintiff must establish that the employer's stated non-discriminatory reason is either false or inadequate.
Under the McDonnell Douglas framework, as recognized by the Second Circuit, the focus is on whether there is sufficient evidence to show that the employer's asserted reason is a pretext for unlawful discrimination. The term "pretext" is often characterized as meaning that the employer's asserted reason is a lie, but that is not really accurate. Suppose an African American employee and a white employee get into a fight and only the African American employee is fired. The employer asserts that the African American employee was fired for getting into a fight. But what about the white employee who wasn't fired? Does that mean that the African American employee was not fired for being in a fight? Of course not, and the fact that he was not fired until he got into a fight is evidence that the employer did not lie about firing the employee for his misconduct. However, what about the white employee -- why wasn't he fired? If the employer can't explain why it didn't fire a white employee for misconduct that supposedly justified firing an African American employee, then the evidence would show not only that the African American employee was fired for being black but also that but-for his race he would not have been fired.

The Second Circuit states that pretext can be established under Title VII by evidence that race or another protected factor was not the exclusive factor, but under section 1983 the evidence must also show that the reason is false or inadequate.

This characterization misunderstands the nature of the McDonnell Douglas framework. Since the focus is on weakening the employer's asserted reason, there is no basis for inferring that discrimination also played a role unless the employer's reason has been weakened to the point that there must have been some other reason. If there must be some other reason, then that reason must have been a but-for cause. To be sure, a plaintiff can establish that race was a motivating factor without showing that it was a but-for cause. For example, an African American plaintiff who was fired after getting into a fight with a white employee might point to his supervisor's racist comments. That evidence, however, would tend to show that he was fired for being black, but it would do little, if anything, to show that he was not fired for getting into a fight. Thus, such evidence would not support a finding of "pretext."

While the court's error was highly technical, it could significantly limit plaintiffs' success in bringing discrimination claims. Most claims, even under Title VII, rely on the McDonnell Douglas framework. If a plaintiff can rely on the McDonnell Douglas framework and show that race was a motivating factor but not a but-for cause -- as the Second Circuit would have it -- the employer would have the chance to show it would have taken the same action even in the absence of discrimination. If it can do so, then the plaintiff gets almost nothing -- pretty much only attorney's fees. Juries may be tempted to split the baby, so this would not be an unlikely scenario.

I can't attribute nefarious motives to Judge Cabranes and the other judges on the Naumovski panel, but the decision is a stark illustration that causation standards matter. Unfortunately, rather than providing clarity, courts are all too often making serious mistakes that compound the confusion about these issues.

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.

Saturday, August 17, 2019

Menaker v. Hofstra University: Standing Up for the Rights of the Accused in the #MeToo Era

Grand Canyon Centennial
Today's post is by guest blogger Dena Katz.

The Second Circuit's decision in Menaker v. Hofstra University, No. 18‐3089‐cv (Aug. 15, 2019), is a forceful reminder that men accused of sexual harassment need to be treated fairly. For decades, men's egregious sexual conduct has been ignored. The correct response, still, is not to assume that men are sexual harassers, but to treat allegations of sexual misconduct the same way we treat allegations of other forms of serious misconduct.

As explained by the court, the plaintiff was able to establish an inference of sex discrimination based on evidence of: 1) procedural deficiencies in the university's investigation of a female student's accusation of sexual harassment by the plaintiff; and 2) pressure on the university to react more forcefully to accusations of male sexual misconduct. Evidence of the procedural deficiencies included the university's failure to interview potential witnesses identified by the plaintiff and failure to follow the process under the university's harassment policy. Evidence of sex-based pressure on the university included a "Dear Colleague" letter by the Department of Education providing guidance to educational institutions on how they should investigate claims of sexual misconduct. Significantly, even in the absence of the specific pressure on the defendant in this case, the indisputable impact of the #MeToo movement would likely be enough to establish the requisite pressure:
[W]hen combined with clear procedural irregularities in a university's response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination.
If a woman were accused of sexual harassment and fired without being given a fair shake, she wouldn't be able to establish sex discrimination as readily as a man could. That difference reflects the stereotypes of men as sexual harassers. If men and women were treated the same, then neither sex could claim discrimination.

To bolster its conclusion, the court further relied on the "cat's paw" theory in holding that the discriminatory motive of a third party can be imputed to an employer where: "(1) the employer exercises a 'high degree of control over the behavior' of the non-employee, and (2) the employer's 'own negligence' permits or facilitates that non-employee's discrimination." Here, the university controlled the complaint process under which the plaintiff was accused of sexual misconduct, and the university referenced the accusations in explaining why it was firing him. Because of the procedural irregularities, a district court could conclude that the university's response to the accusation was negligent.

In my view, the court was likely justified in relying on the cat's paw theory in this case, but its description of the standard is incorrect. Missing from the court's analysis is the requirement of notice. If an employer neither knew nor should have known that a third party, such as a student or customer, was motivated by discriminatory bias, then the third party's discriminatory bias cannot be imputed to the employer. Thus, if an employer takes an action in response to a customer complaint motivated by racial bias, the customer's bias cannot be imputed to the employer unless it knew or should have know about the customer's bias. The employer's control and negligence may also be necessary, but contrary to what the Second Circuit said, they are not enough.

Nonetheless, the court's misstep likely did not affect the outcome in this case where the court reasoned that because the plaintiff was not accused of "just any conduct [but was accused] of sexual misconduct," a rational fact finder could infer that the accusation was based, at least in part, on the plaintiff's sex.

Without question, the #MeToo movement has brought to light deep-rooted discriminatory practices and led to much-needed reforms in the way accusations of sexual harassment are treated. We just need to remember that #MeToo must not be used to justify the same kinds of sex-based stereotypes that it is intended to eradicate.

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.

Wednesday, August 14, 2019

New Hampshire v. Lilley: Will the Supreme Court "Free the Nipple"?

Scotusblog has highlighted the cert. petition in New Hampshire v. Lilley, in which the New Hampshire Supreme Court held that a city ordinance prohibiting women from exposing their nipples in public is constitutional. Although other courts had rejected similar claims, the New Hampshire Supreme Court reached the odd conclusion that the ordinance is not sex-based even though it only requires women to cover their nipples. In the court's view, the differential treatment is not sex-based because it reflects the common understanding that only women are perceived as nude if they uncover their breasts. This is nonsense. If the definition of nudity in the ordinance is grounded in a sex-based perception of nudity, then the ordinance is also sex-based.

Of course, whether such a sex-based distinction is permissible is a different matter, but it's much more likely to be unconstitutional if it is sex-based. The Tenth Circuit came out on the other side, so now is the time for the Supreme Court to step in.

For more on this issue, check out my earlier post on Free the Nipple v. City of Springfield.

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.

Sunday, August 11, 2019

Grimm v. Gloucester County School Board: Is a transgender man a masculine woman or an effeminate man?

A transgender man is only entitled to use the men's bathroom if he is a man. But what does it mean to be a man? That question has been overlooked by LGBT advocates fighting for transgender bathroom access. It was also recently overlooked by Federal District Court Judge Arenda L. Wright Allen. On August 9, 2019, Judge Allen ruled that a Virginia county school board violated Title IX of the Education Amendments of 1972 by denying Gavin Grimm, a transgender boy, access to the boys' bathroom at his school. Unfortunately, however, Judge Allen merely assumed that a transgender boy is male and that denying him access to the boys' bathroom therefore discriminated against him based on his transgender status.

In reaching this conclusion, Judge Allen cited case law going back almost 20 years holding that transgender status constitutes sex discrimination per se under federal law. The three oldest cases she cited -- Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) -- each involve a transgender woman, but in each of these cases, there is absolutely no question that the plaintiff was perceived by the court to be male, not female. Thus, discrimination against a transgender woman is sex discrimination because a feminine male is treated worse than a feminine female. If a transgender woman is male, then she is entitled to use the men's bathroom, not the women's bathroom. Likewise, if a transgender boy is female, he gets to use the girls' bathroom.

Times have changed. And LGBT advocates and courts are much more likely to perceive a transgender woman as being female than they were in the past. But what is the basis for this shift? If there is some objective basis for regarding a transgender woman as female, that needs to be explained. When the Supreme Court ultimately decides whether a transgender woman gets to use the women's bathroom, the Justices will not be satisfied with merely being told, "Because we say so."

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.

Thursday, August 8, 2019

Electrolux Home Products: Pretext and Labor Law Violations

A recent decision by the National Labor Relations Board in a case involving Electrolux Home Products correctly recognizes that even if an employer lied about why it fired someone, that does not necessarily mean that it fired the person because of anti-union animus in violation of the National Labor Relations Act. The dissent, by contrast, mistakenly contends that an employer violates the NLRA per se merely by lying about its reason for taking the action.

To be sure, evidence that an employer lied about why it fired an employee is some evidence that the employee was fired because of anti-union animus. But as the majority noted: "It is possible that the true reason might be a characteristic protected under another statute (such as the employee's race, gender, religion, or disability), or it could be some other factor unprotected by the Act or any other law, which would be a permissible basis for action under the at-will employment doctrine." Thus, it is not enough to merely show that an employee was not fired for the reason asserted by the employer; rather, the evidence must also show that the employee was fired for a reason prohibited by the NLRA.

In this case, there was evidence that the charging party was told to "shut up" by a manager at a meeting that the employer held seven months before the charging party's termination, to make its case against unionization. In the majority's view, this statement, while rude, was insufficient to establish a violation, even when combined with the pretext evidence. Reasonable minds might disagree with how the majority weighed this evidence, but at bottom, the majority correctly explained the limits of pretext evidence.

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.

Saturday, July 27, 2019

Quid Pro Quo Sexual Harassment and the Ridiculous Attack on Eugene Scalia

Theodore Roosevelt National Park
Today's post is by guest blogger Dena Katz.

The recent attack on Eugene Scalia, Trump's nominee to be Labor Secretary, belies an ignorance of the very legal concepts that his attackers purport to defend. In 1998, Scalia wrote an insightful and prescient law review article that criticized the legal doctrine of "quid pro quo sexual harassment," the brainchild of law professor Catherine MacKinnon. Far from being worthy of scorn, Scalia's article should be praised for being spot on. Only a few months after the article was published, the Supreme Court wholeheartedly agreed with Scalia's central contention -- that the doctrine of quid pro quo sexual harassment is a confusing extra-statutory creation that adds little to traditional legal analysis.

As Scalia pointed out, no one disputed in 1998 that if an employee is subjected to retaliation for rejecting a sexual proposition, the employer is strictly liable for the adverse action. Previously, employers had argued that firing an employee for rejecting a sexual advance is personal and not a form of sex discrimination. The concept of quid pro quo sexual harassment responded to those contentions, but it was redundant from the get-go because it referred to cases that were clearly unlawful under existing legal principles. Refusing to hire a female applicant because you don't want a woman in the position is not legally distinguishable from refusing to hire a woman because she rejected your sexual advances.  Each is an example of a woman unlawfully denied a job based on her sex. 

Most devastating for defenders of quid pro quo doctrine is Scalia's discussion of submission cases.  Consider the "quid without quo scenario," in which an individual submits to sexual advances but is denied the promised job benefit. If the supervisor provided the benefit, then the individual was subjected to quid pro quo sexual harassment, but if the supervisor reneged, then the individual would not have a quid pro quo claim. This result in which the employee who was treated better has the stronger claim is patently absurd. 

Scalia may or may not be well-qualified for the Labor post, but his 1998 law review article certainly does not disqualify him. Reactions to the article reflect more than mere disagreement with his views -- they also reflect the fear that he is sharp and competent enough to defend his own views and explain why his opponents are wrong.

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.

Saturday, July 20, 2019

EEO law and "Go Back Where You Came From"

Just for fun -- this EEOC tweet elicited a lot of reaction in light of Trump's "go back to where you came from" comments:

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.

Thursday, July 4, 2019

Dress Codes and Gender Identity Discrimination

In a Washington Post opinion piece, Thomas Rost defends his decision to fire Aimee Stephens, a transgender woman, from her position as a funeral director after she told him she would begin wearing a skirt to work. The Supreme Court will be taking on Stephens's claim this fall in the case of R.G. & G.R. Harris Funeral Homes v. EEOC. The EEOC has characterized this case as more broadly addressing whether firing someone for being transgender is unlawful sex discrimination while Rost focuses on Stephens' violation of the dress code policy. This is an important distinction because the courts and the EEOC have generally recognized that sex-based dress codes are not unlawful. If firing someone for being transgender is unlawful but firing someone for violating a sex-specific dress code is lawful, then it may have been unlawful if Rost fired Stephens for telling him she was transgender but ok if he fired her because she refused to wear pants. Hopefully, the Supreme Court will avoid this unsatisfactory outcome.

Although Rost states that the EEOC has "since admitted it was wrong and now supports us," this isn't correct as far I know. The Department of Justice has indeed concluded that sex discrimination does not include gender identity discrimination, but the EEOC is an independent agency, and the agencies' disagreement has not gone unnoticed

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.

Tuesday, May 28, 2019

Does Obamacare prohibit discrimination based on gender identity?

The recent announcement by HHS that it will roll back protections for transgender individuals under the Affordable Care Act illustrates the confusion regarding how sex discrimination overlaps with gender identity discrimination. 

In concluding that sexual orientation discrimination and gender identity discrimination constitute sex discrimination, advocates have not argued that the term "sex" encompasses sexual orientation and gender identity. Instead, they have argued that when someone discriminates against an individual for being gay or transgender, he treats the individual differently based on the individual's biological sex. Thus, in his oral argument (around 29:10) in a recent Fifth Circuit case, Lambda Legal attorney Greg Nevins clarified, "We're not arguing for a broader definition of 'sex' than man or woman." Rather, just as discrimination based on interracial associations discriminates based on race -- by treating a white woman married to a black man differently from a black woman married to a black man -- discrimination based on sexual orientation discriminates based on sex -- by treating a man who has sex with men differently from a woman who has sex with men. Similarly, transgender discrimination is sex discrimination because it means treating a biological man who presents as female differently from a biological woman who presents as female. Although this line of reasoning has frequently been represented as defining "sex" to include "sexual orientation" and "gender identity," it merely applies the existing definition of sex to show that sexual orientation and gender identity discrimination result in discrimination against someone for being male or female.

This argument, however, only gets you so far. When sexual orientation discrimination or gender identity discrimination does not result in discrimination against someone for being male or female, then it is not sex discrimination. Significantly, it doesn't appear that the exclusion of medical services related to gender transition discriminates based on biological sex. If a transgender woman is denied access to emergency room services that are granted to a non-transgender woman, that is arguably sex discrimination because a biological male who identifies as female is being treated differently from a biological woman who identifies as female. By contrast, if no one gets benefits for gender transition, that may discriminate against an individual based on gender identity, but it does not discriminate against someone for being male or female. Absent an expanded definition of "sex," only so much can be considered gender identity (or sexual orientation) discrimination. 

The decision by HHS to propose the rescission of regulations protecting transgender individuals may be criticized by many, but arguments for coverage have rested on faulty logic. If medical benefits related to gender transition are to be covered, it would require more than arguments about interracial marriage and gender stereotypes. It would require an actual expansion of the term "sex" or the addition of "gender identity" as a protected basis.

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.

Sunday, May 26, 2019

EEOC v. North Memorial Health Care: What's the difference between denial of religious accommodation and retaliation?

The Fourth Circuit's decision in EEOC v. North Memorial Health Care provides helpful guidance on whether an employee who is denied a religious accommodation has a religious accommodation claim, a retaliation claim, or both.

In this case, Emily Sure-Ondara was given a conditional job offer, and she then revealed to the defendant that she wanted a religious accommodation because her religious beliefs prevented her from working from sundown on Fridays until sundown on Saturdays. After concluding that it could not accommodate the claimant's religious beliefs, the defendant withdrew the job offer. In Sure-Ondara's EEOC charge, she alleged religious discrimination and/or retaliation. In bringing suit on Sure-Ondara's behalf, however, the EEOC alleged only retaliation. As explained by the Fourth Circuit, "when an employee or applicant requests a religious accommodation, and the request is denied by an employer such as North Memorial that accommodates reasonable requests that do not cause 'undue hardship,' there is no basis for an opposition-clause retaliation claim." Thus, in this case, the fact that the defendant withdrew the conditional job offer was merely the result of the failure to provide an accommodation. The only claim that the EEOC could have brought on behalf of Sure-Ondara was for denial of religious accommodation. This distinction is important because an employer is not required to provide an accommodation that results in "undue hardship," which the Supreme Court has defined as anything more than a de minimis cost or burden. By contrast, if the defendant's rescission of the conditional job offer was retaliatory, then it would have been per se unlawful. That's a huge difference.

As recognized by the Fourth Circuit, it's possible for someone requesting an accommodation to have a retaliation claim if the employer does not just deny the individual the accommodation and also takes an adverse action for requesting the accommodation. If an employee requests an accommodation, and the employer denies the accommodation and fires the employee, she would have both a denial of accommodation claim and a retaliation claim. Similarly, if an employer granted an accommodation but retaliated for requesting the accommodation, the employee would have a retaliation claim, but no denial of accommodation claim. In this case, the only action taken by the employer was denial of accommodation, so that's the only potential claim that the EEOC could have brought on behalf of Sure-Ondara. 

Although the dissent criticizes the majority for interpreting retaliation protections too narrowly, I think it's obvious that the majority got it right in distinguishing between two fundamentally different kinds of claims and clarifying the limited circumstances when someone who has requested a religious accommodation will have a retaliation claim. If the dissent and EEOC were correct, then the defendant's withdrawal of the job offer would have been per se unlawful, regardless of what impact granting the accommodation would have had on the defendant's business operations. By contrast, if the defendant had never made a conditional job offer and rejected Sure-Ondara up front because she needed an accommodation, the only claim would be denial of accommodation, and the defendant could allege undue hardship. This distinction makes no sense at all: "[A]s a job applicant with no prior employment relationship with North Memorial, [Sure-Ondara's] failure to obtain the position she sought did not give rise to a claim of unlawful retaliation . . . . The EEOC seeks to avoid this conclusion by emphasizing that North Memorial committed unlawful retaliation when it rescinded its conditional offer of employment. This is sophistry. Sure-Ondara had the same right to religious accommodation as a job applicant under [Title VII] with or without a conditional job offer. Thus, rescinding that offer was not an adverse employment action."

The dissent further contended that Sure-Ondara's claim was properly characterized as retaliation since the defendant withdrew the job offer despite Sure-Ondara's assurances that she wanted the job regardless of whether she could be accommodated and that she would show up for work on a Friday evening even if she could not find a replacement. However, the dissent did not dispute that the defendant was entitled to rescind the offer if it actually believed that Sure-Ondara would not show up. Having made that concession, I don't see what room was left for recognition of a retaliation claim. If the defendant honestly believed that Sure-Ondara would show up, is it really plausible that the defendant would have rescinded its job offer merely because she had requested an accommodation? In my view, no. It seems much more likely that, despite Sure-Ondara's assurances, the defendant concluded that it would be taking too much of a risk in hiring her, rather than that the defendant was merely punishing her for requesting the accommodation.  Moreover, in order to show that an employer was lying about its asserted reason, it's usually necessary to point to someone outside the protected class. 

Significantly, although the dissent apparently did not question that the defendant could have lawfully rescinded its offer if it honestly believed Sure-Ondara would not show up on Fridays, I disagree. If an employer denies an applicant a job based on assumptions stemming from her religious beliefs, that's religious discrimination -- but it's not retaliation, regardless of how the employer learned about the applicant's religious beliefs.

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.

Friday, May 24, 2019

Westmoreland v. TWC Administration: What is a LEGITIMATE reason for firing someone?

In Westmoreland v. TWC Administration, the trial judge made a subtle but very significant error when he instructed the jury in an age discrimination case. According to the defendant, the plaintiff was not fired because of her age but because she improperly backdated a document. Clearly, this is a nondiscriminatory reason for firing someone, so if that's really why an employee was fired, she should be out of luck. The district court erred, however, in instructing the jury that it was first required to determine whether backdating was a "legitimate business reason" for firing the plaintiff. If so, the jury was then required to determine whether backdating was not the real reason for the termination but a pretext for age discrimination.

The problem here is that an employer is not required to have a "legitimate business reason" for taking an action, only a nondiscriminatory one. Case law commonly provides that an employer has to have a "legitimate, nondiscriminatory reason" for its action. However, this is misleading. As the Supreme Court has explained, the Age Discrimination in Employment Act obviously does not prohibit all illegitimate motives, only age-based motives. Thus, although firing someone for being black is not a legitimate business reason, it does not violate the ADEA. However, if, as the court instructed the jury in Westmoreland, an employer must not only provide a nondiscriminatory reason but an actual "legitimate business reason," then any kind of improper reason, in the judgment of the jury, will violate the ADEA.

It is true that if an employer provides a facially "illegitimate" reason for its action, a jury may take that into account in determining whether the employer was actually motivated by the asserted reason. Here, however, the court separated these inquiries and instructed the jury that it should first determine whether the employer's reason was good enough, without regard to whether it was a pretext for age discrimination. The employer's decision to terminate an employee with 30 years of consistently satisfactory work for one incident of misconduct seems rather extreme, so if the jury was invited to determine whether that was a legitimate business reason, it may have jumped at the chance to punish the employer for terminating a long-time employee with so little justification.

According to Judge Niemeyer's dissent, there was "absolutely no evidence that Westmoreland was fired because of her age." I disagree, as the jury was entitled to consider, for example, whether the alleged misconduct plausibly would have led an employer to fire a 30-year employee. I agree with Niemeyer, though, that the trial court improperly tasked the jury with deciding whether the employer's decision was fair.  To be sure, it may not be fair to fire an employee for, what the jury may have seen, as the flimsiest of reasons. But that's not the issue. Rather, the only question is whether the employer acted because of the plaintiff's age.

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.

Tuesday, May 14, 2019

Richardson v. Chicago Transit Authority: Avoiding a Deluge of Obesity Discrimination Claims (Updated 6/16/19)

The Seventh Circuit heard oral arguments earlier today in the case of Richardson v. Chicago Transit Authority, which looks at the question of when discrimination based on obesity can be considered disability-based discrimination in violation of federal EEO law. Under the Americans with Disabilities Act, it's unlawful to discriminate against someone for having a physical impairment, so if obesity is considered a physical impairment, then it would be unlawful to discriminate against someone for being obese. According to the CDC, almost 40% of Americans are obese. If all of them have physical impairments just because of their obesity, that would mean a whole lot of folks who might potentially allege disability discrimination in the future. An amicus brief filed in support of Richardson doesn't hesitate in taking this view, arguing that obesity by itself is a disease and therefore a physical impairment.

Courts, however, don't want to be swamped with lawsuits. Recognizing this, the plaintiff's attorney avoided the position that obesity by itself is a physical impairment. On the other hand, she failed, despite being asked repeatedly, to articulate a general rule for when an obese individual does have a physical impairment. Instead, she maintained that her client, who is "extremely obese," can be considered to have an impairment. Courts don't necessarily demand that an answer be black or white. But there still have to be some principles that can be applied to ensure some uniformity from case to case. Not every unjust employment decision violates the law, and absent some guideposts, juries will have nothing to rely on except their own sense of right and wrong.

Update (6/16/19) - On June 12, 2019, the Seventh Circuit held, in alignment with other circuits, that obesity is not an impairment unless it is outside the normal range and the result of an underlying physical disorder. Rejecting arguments by patient and scientific professional organizations, the court explained: 
[A]mici's argument proves too much; if we agreed that obesity is itself a physiological disorder, then all obesity would be an ADA impairment. While Richardson does not ask us to hold that all obese individuals—found to be as high as 39.8% of the American adult population—automatically have an ADA impairment, adopting amici's position leads to this unavoidable, nonrealistic result.

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.