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.