The Seventh Circuit Court of Appeals, in a recent decision (June 12, 2019) in the case of Richardson v. Chicago Transit Authority has joined the Second, Sixth and Eighth Circuit in finding that Obesity, standing alone, is not an impairment under the Americans With Disabilities Act (ADA) absent an underlying psychological cause. This is an extremely important decision based on the fact that it is estimated that forty (40) percent of the current adult population is dealing with obesity.

Mark Richardson, a 596 pound bus driver was sent for a safety assessment after returning from a lengthy medical leave. He was required to undergo that safety assessment predicated on the fact of his weight and that bus driver seats were designed to hold only up to 400 pounds. During the assessment, he was unable to do hand-over-hand steering; he cross pedaled (i.e., kept his foot on both the brake and the accelerator at the same time) and his leg pressed against the lever that opened the rear door. The CTA concluded that all of these safety issues were due to his physical size and therefore he was unable to keep his position. Mr. Richardson felt that his severe obesity standing alone should automatically qualify as an ADA impairment and, therefore, he was due to receive accommodation. Mr. Richardson cited the EEOC Interpretative Guidance documentation that states “severe Obesity like his should automatically qualify as an ADA impairment without having to show an underlying physiological cause”.

He, in essence, was stating that these interpretative guidelines established that the impairment does include the physical characteristic of weight if either of the following elements are true.

1. The weight is not within normal range or
2. The weight is the result of the psychological disorder.

The Seventh Circuit rendered his construction of the EEOC Interpretative Guidelines as incorrect and said that “a more natural reading of the interpretative guidance is that an individual’s weight is generally a physical characteristic that qualifies for a physical impairment ONLY if it falls outside the normal range and is the result of a psychological disorder”.

Furthermore, the Seventh Circuit found that the Employer, CTA, decision to send Mr. Richardson for a safety assessment was not predicted on any conclusion by the CTA that Richardson was disabled, but was predicated solely on Richardson’s size and that he had failed to present any evidence that the CTA believed to his obesity was caused by some underlying physical condition.

This ruling is extremely beneficial for Employers because if an Employer even thinks about the underlying cause of an Employee’s obesity, it is more likely that the Employer would believe that the Employee’s obesity is caused by poor diet or lack of exercise rather than some underlying psychological cause. Obviously, the decision of the Seventh Circuit siding with those of the Second, Sixth and Eighth Circuit, gives Employers support for the decision that obesity, standing alone, is not, in and of itself, a disease or a psychological disorder and therefore, does not automatically qualify, standing alone, for ADA protection.

Questions? Contact attorney Walter Liszka in our Chicago office at (312)629-9300 or by email at waliszka@wesselssherman.com.