By Gerald L. Maatman, Jr. and Howard M. Wexler

With the recent recognition by the American Medical Association that obesity is a disease (and not just a medical condition), courts around the country have begun to formulate their position as to whether (and to what extent) obesity is covered under the Americans With Disabilities Act. The EEOC’s regulations state that while body weight within a “normal” range is not generally considered an impairment, body weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder, can be an impairment under the law. In a recent interview, EEOC Commissioner Chai Feldblum stated that as of September 2013, the EEOC has brought two lawsuits involving morbid obesity as a disability since the passage of the ADA Amendments Act (“ADAAA”).

While courts are continuing to develop a body of law regarding the protections afforded to obese individuals under the ADAAA (as well as parallel state laws), a recent decision by Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan in Ayers, et al. v. Multibrand Field Services Inc., Case No. 13-CV- 10765 (E.D. Mich. Sept. 18, 2013), sheds some light on what types of claims will not be recognized.

Background

The employer, Multibrand (a satellite dish installation company) had a policy that it does not hire anyone who weighs over 250 pounds. Id. at 1. The reason for this policy is because Multibrand’s employees must carry equipment with them that weighs approximately 50 pounds, and the ladders that these employees must climb can only support up to 300 pounds. Id. Ayers applied for a job, disclosed that he weighed over 250 pounds, and did not get the job as a result. Id. at 2. Ayers subsequently filed a lawsuit (that Multibrand removed to federal court) alleging that Multibrand’s 250 pound weight restriction policy is discriminatory under Michigan’s Elliot-Larson Civil Rights Act – which expressly prohibits employers from discriminating against individuals based on their weight. Id.

Ayers then filed an amended complaint, alleging that Multibrand’s weight policy had a disparate impact against overweight individuals. Id. at 2-3. This claim is the type of standard class-wide claim often asserted in workplace class actions.

Multibrand immediately moved to dismiss the disparate impact claim since Ayers failed to allege any facially neutral policy or practice – a requirement for any cognizable disparate impact claim. Id. at 3. Judge Ludington agreed with Multibrand’s argument and summarily dismissed Ayers’ disparate impact claim. In dismissing this claim, Judge Ludington rejected Ayers’ argument and held that “that a claim for disparate impact requires a facially neutral policy has been affirmed by the Supreme Court on multiple occasions.” Id. at 5. Here, since Multibrand’s policy is not facially neutral as it unequivocally prevents anyone who weighs over 250 pounds from being hired – Judge Ludington found that Ayers’ disparate impact claim must be dismissed. Id. at 8.

Judge Ludington did not stop there. Rather, believing that “Ayers’s counsel should have known the [disparate impact] claim was frivolous…sanctions pursuant to 28 U.S.C. § 1927 are warranted.” Id. at 10. Therefore, Judge Ludington gave Multibrand leave to submit supplemental briefing as “Multibrand incurred additional expenses in moving to dismiss the frivolous claim, and those expenses will be shouldered by Ayers’s counsel personally. Id. at 11.

Implications For Employers

Judge Ludington’s finding – that a facially neutral policy is required to support a disparate impact claim – is something that employers have long understood. However, given Congress’s admonitions in the ADAAA that “substantially limiting” and “disability” are to be broadly construed, many obese (and some overweight but not obese) employees are undoubtedly now actually disabled under the ADAAA. Additionally, employers should be mindful that under the ADAAA’s “regarded as” prong, employees are only required to show that the employer took an action because of its belief regarding the employee’s impairment and do not have to show an impairment that substantially limits a major life activity. As such, while not surprising, the Ayersdecision represents just the beginning of a growing body of law in this area. Stay tuned…