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Issues for the Bariatric & Metabolic Professional

Different Courts Interpret Law Differently in Defining Morbid Obesity as a Disability

By Victoria Stern

After almost eight years at her job, Lisa Harrison was fired from the Family House of Louisiana, a long-term residential treatment facility for chemically dependent women and their children in Terrytown, La.

image One month after her termination, Ms. Harrison filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) against the Family House, claiming she was let go because her employer considered her disabled by her obesity, in violation of the Americans With Disabilities Act (ADA) of 1990. At 5’2” and weighing more than 500 pounds, Ms. Harrison’s body mass index (BMI) was over 91 kg/m2 (more than twice the BMI threshold for morbid obesity). The same person who had hired her in 1999 terminated her, and no one at the company was aware of significant fluctuations in her weight during that time.

While the charge was still pending, Ms. Harrison died at age 48 on Nov. 1, 2009. Her death certificate listed the cause of death as “morbid obesity” and included hypertension, diabetes and congestive heart failure as other conditions contributing to death. A year later, on Sept. 30, 2010, the EEOC went forward with the suit on Ms. Harrison’s behalf. Like Ms. Harrison, the EEOC claimed that her employer regarded her as disabled because of her obesity; however, unlike Ms. Harrison, the EEOC alleged that she was actually disabled by her obesity and that Family House had failed to accommodate her.

The arguments that followed and the judge’s ultimate ruling highlight how murky and inconsistent the law can be when dealing with weight discrimination issues.

Weight Discrimination Law

Michigan state law specifically bans weight discrimination, and six cities (Washington; San Francisco; Madison, Wis., Santa Cruz, Calif.; Birmingham, N.Y.; and Urbana, Ill.) also offer some type of protection, but currently no federal law prohibits obesity discrimination. As a result, plaintiffs have brought claims under the ADA, which have met with varying degrees of success.

“Weight, in and of itself, is not a protected characteristic under federal law,” Tanya Goldman, senior trial attorney for the plaintiff, EEOC, New Orleans Field Office, told General Surgery News, in an email. “It is only where a person’s weight rises to the level of being an impairment, might that person be disabled. At that point, the individual would still have to show that her weight substantially limits her in a major life activity, that she is qualified and that the adverse employment action was taken because of the disability.”

The ADA of 1990 defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, a history of such an impairment or being regarded as having one. According to the ADA, no person can discriminate against a qualified individual on the basis of a disability “in regard to job application procedures, the hiring advancement or discharge of employee.” A qualified individual with a disability “can perform the essential functions” of his or her job, including those who “can only do so with reasonable accommodation.” To prove an employer violated the ADA due to weight discrimination, “the plaintiff must allege that the employer believed, however erroneously, that the plaintiff suffered from an ‘impairment’ that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.”

However, courts have disagreed on several issues regarding weight discrimination, such as whether an individual needs to prove an underlying physiologic disorder for obesity. Some courts, for instance, have found morbid obesity to be a covered impairment only when evidence establishes that the obesity was caused by a physiologic disorder, such as hypothyroidism (N Engl J Med 2008;359:192-199). In such instances, simply overeating would not be protected.

In the 1993 case Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, the First Circuit Court of Appeals determined that an employee (who was 5’2” in height and weighed more than 320 pounds) was disabled and entitled to the protections of the ADA because her morbid obesity was caused by a “dysfunction of both the metabolic system and the neurological appetite-suppressing signal system.”

In Francis v. City of Meriden (2nd Cir., 1997), the court ruled that a firefighter, who was terminated for failing to meet the weight guidelines of his job, was not protected under the ADA because “obesity, except in special cases where obesity relates to a physiological disorder, is not an impairment.”

Other cases, however, have not required proof of a physiologic disorder. In E.E.O.C. v. Texas Bus Lines (S.D. Tex., 1996), an employer’s perception that a former employee was disabled by her morbid obesity was enough for the employee to win the discrimination suit, without arguing a physiologic cause.

Although some courts, as in E.E.O.C. v. Texas Bus Lines, have ruled that perceiving an employee to be disabled by obesity is against the law, others have found that this perception is only unlawful if the employer believes that there is a physiologic basis for the obesity. In Walton v. Mental Health Ass’n (3rd Circ., 1999), for instance, the court ruled that no cause of action lies “against an employer who discriminates against an employee because it perceives the employee as disabled by obesity.”

Because of the confusion and uncertainty caused by the ADA and the courts’ varied interpretations of its scope, the ADA Amendments Act (ADAAA) was passed in 2008. The ADAAA expanded the definition of disability to include impairments of manual tasks, walking, seeing, hearing, speaking, breathing, learning and bending as well as impairments of the immune system, digestive, bowel, brain, respiratory, circulatory, endocrine and reproductive functions.

Disability or No Disability?

In preparation for Ms. Harrison’s trial, the plaintiff consulted with an obesity expert, George A. Bray, MD, who if called to trial, would have testified that she suffered from a physiologic/pathologic disease and should be considered disabled.

“In my opinion, to a reasonable medical certainty, Ms. Harrison had a physiologic disorder, which I have termed progressive obesity, a reflection of underlying susceptibility to obesity, which is probably genetic,” Dr. Bray, professor of medicine at the Pennington Biomedical Research Center, Louisiana State University, Baton Rouge, wrote in his report.

According to Dr. Bray, progressive obesity is a physical condition, which, in the majority of cases, leaves a person unable to prevent extreme obesity, despite efforts to diet or exercise. This progressive condition stems from the fact that overweight and obese individuals not only have a surplus of fat cells, they also have larger ones, Dr. Bray explained.

“In my opinion, the people with progressive obesity have an underlying disturbance in their physiologic function that leads to this progressive weight gain.”

To this end, a recent study showed that the number of fat cells in both thin and obese people is essentially determined during childhood (Nature 2008;453:783-787). By adulthood, the number of fat cells remains fairly constant; thus, fluctuations in weight do not come so much from shedding or gaining fat cells, but from the expanding and shrinking volume of these cells.

Dr. Bray argued that as Ms. Harrison gained weight during her childhood, the number of fat cells she possessed increased as well, releasing more and more harmful chemicals into her body. The chemicals released in the body “raise blood pressure, alter the immune system, increase blood pressure and lead to diabetes,” Dr. Bray wrote, adding that some cases of progressive obesity result from known genetic diseases, but for the most part, obesity cannot be attributed to any one gene or environmental factor.

Asked to comment on the validity of Dr. Bray’s obesity theory, Michael Schwartz, MD, said, “I wouldn’t agree that number of fat cells determines whether you’ll become obese. Simply put, to become obese, you have to consume more calories than you expend. Anyone who does that will be able to store the excess as fat, irrespective of the number of fat cells.”

Dr. Schwartz, RH Williams Professor in the Department of Medicine, Division of Metabolism, and director of the Diabetes and Obesity Center of Excellence at University of Washington Medical School, Seattle, said there is no one explanation for what causes obesity. Rather, obesity may be influenced by a slew of issues, including genetic and developmental factors, both of which determine your weight before birth; environmental factors, such as diet, physical activity, environmental chemicals (Mt Sinai J Med 2011;78:22-48); medications (such as certain antidepressants) and medical conditions (such as Cushing’s syndrome); as well as a host of emotional and social variables that affect this energy input–output balance.

“I think it stands to reason that if environmental factors favor obesity development and these factors are reversed, we would see a decrease in obesity prevalence,” Dr. Schwartz said. “But in reality, in the vast majority of obese people, this doesn’t happen. Obesity is very hard to reverse.”

Dr. Schwartz explained: “In both obese and lean individuals, the level of body weight is being actively biologically defended by the brain.” In other words, our body fights to keep our weight within a specific range it deems “normal,” even if that range actually extends far outside of normal.

The Ruling and the Future

Ivan Lemelle, the presiding judge, ruled in favor of the plaintiff, Ms. Harrison. Falling in line with a small number of courts, Judge Lemelle determined that morbid obesity even with no physiologic basis qualifies as a disability. Part of the court's ruling read:

“A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party’s weight is within the normal range. However, if a charging party’s weight is outside the normal range—that is, if the charging party is severely obese—there is no explicit requirement that obesity be based on a physiological impairment. … Therefore, according the EEOC Guidelines to the ADA the appropriate deference, the Court should recognize that severe obesity qualifies as a disability under the ADA and that there is no requirement to prove an underlying physiological basis.”

Because Judge Lemelle determined that severe obesity is, in fact, an impairment under the ADA, and that plaintiffs do not need to present proof of a physiologic cause, he did not need to evaluate Dr. Bray’s expert opinion, which was relevant primarily as evidence that Ms. Harrison’s obesity was the result of a physiologic condition or disorder, Ms. Goldman said.

On April 9, the Louisiana federal court signed a consent decree resolving all claims. Family House agreed to pay Ms. Harrison’s estate $125,000 and to conduct more training of its employees on the ADA and on making reasonable accommodations.

After the decision, the EEOC also changed its definition of disability, stating that severe obesity may be considered a disability regardless of physiologic impairment. The EEOC insists, however, that its revised definition is not a change in the law.

“The EEOC cannot create or change the definition of disability, which is a matter of statute,” Ms. Goldman said. “The ADA, and the ADA as amended, provide the definition of disability.”

Ms. Goldman added, “This case does not represent a changed definition of disability with respect to obesity. Rather, we believe it reflects the court’s correct application and interpretation of the statute. Judge Lemelle’s ruling in this case is an excellent starting point, but I suspect that there will still continue to be a fair bit of litigation over whether severe obesity is an impairment, regardless of the cause of the obesity.”

A study conducted at Yale University found that weight discrimination ranked as the third most common cause of perceived discrimination among women (with gender and age ranked higher), and was the fourth most common form of discrimination among men (with gender, race and age ranked higher; Int J Obes 2008;32:992-1000). And in a recent issue of International Journal of Obesity, investigators found that obese women had lower chance of being hired than their non-obese counterparts (2012 Apr. 24. [Epub ahead of print]). Specifically, study participants viewed resumes with an attached photo of a woman either before or after undergoing bariatric surgery; obese candidates had a lower likelihood of being hired, and if they were considered for the job, they confronted a lower starting salary.When asked whether Judge Lemelle’s ruling will affect future weight discrimination rulings, Ms. Goldman said, “This case does clarify standards concerning when weight discrimination violates the ADA and is likely to serve as guidance to other courts and attorneys in applying the ADA and/or ADAAA to similar cases.” However, Ms. Goldman added, “Ultimately, the court in each case has to assess the alleged disability under the specific facts presented.”

Weight Discrimination With No Disability

Outside of the disability context, weight discrimination is not protected. About a year ago Citizens Medical Center, in Victoria, Texas, instituted a controversial requirement to its hiring policy: To be eligible for a job, applicants had to have a BMI below 35 kg/m2.

Citizens Medical may have been the first medical facility in the United States to adopt such a hiring policy, but there was talk of it at the Cleveland Clinic several years ago, Michelle Mello, JD, PhD, told General Surgery News. In Texas, such a policy is likely legal, said Dr. Mello, who is professor of law and public health, Department of Health Policy and Management, Harvard School of Public Health, Boston.

Tanya Goldman, who spoke with General Surgery News, agreed: “This policy would not likely be illegal on its face. However, if as a result of the policy, the Center refused to hire an individual, and she could show, for example, that she is severely obese, her obesity affects a major life activity, she was qualified for the job, and was not hired because of this policy, she might have a discrimination claim.”

Not everyone agrees with this assessment. “This is a clear form of weight discrimination,” said Jennifer

Pomeranz, JD, MPH, director of legal initiatives at the Yale Rudd Center for Food Policy & Obesity in New Haven, Conn. “Policies that discriminate against people based on their weight in the medical setting are especially problematic when a majority of the patients are likely to be overweight. This sends a negative message to potential patients that they are not the type of person the hospital considers a positive representation of a human being.”

We may never know. Citizens Medical Center suspended its BMI hiring policy on April 12, after being criticized for its practices.