Disease vs. Disability
On June 18, 2013, the American Medical Association (AMA) voted to classify obesity as a disease. According to all reports, this decision does not, by itself, carry any legal weight. However, it could influence the way obesity is treated in developing public policy on the issue.
In fact, public policy has been trending this way for a while. One of the earliest cases discussing obesity and disability was Cook v. State of Rhode Island, Department of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (November 1993). In that case, the United States Court of Appeals for the First Circuit held that the Rhode Island Department of Mental Health violated Section 504 of the Rehabilitation Act in refusing to hire the plaintiff based on her actual or perceived disability of morbid obesity. The court found the jury determination that the plaintiff met the definition of disability could be supported either because the plaintiff's morbid obesity was itself the result of an underlying metabolic disorder as testified to by her expert or because the plaintiff was regarded by the employer as disabled by her obesity. Even though this case arose under Section 504, it had significant implications and applicability to this issue under both Section 503 and the Americans with Disabilities Act.
More recently, EEOC reached a settlement in 2012 of a case filed in 2010 against Resources for Human Development, Inc. (RHD), doing business as Family House of Louisiana. According to an EEOC press release dated 4-10-2012, EEOC had offered expert testimony that the obesity was the result of an underlying "physical disorder or disease" and not the result of a lack of character on the part of the plaintiff. This argument was similar to arguments made in the Cook case. However in the RHD case, the court in denying both parties' motions for summary judgment decided that severe obesity constitutes an impairment without the necessity of showing any underlying disorder. The AMA vote determining that obesity is, itself, a disease is consistent with this position.
The revised Title I ADA appendix excludes from the definition of "impairment", "weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder." Obesity is by definition not within "normal" range. To the extent that it is accepted as a disease, as the AMA vote suggests it should be, it becomes a physiological disorder. Putting these two together, anyone who meets the definition of obesity will satisfy the definition of "impairment" under the ADA.
Of course, having an impairment is not the same as having a disability. However, the 2008 amendments to the ADA lowered the threshold for establishing that a condition meets the definition of disability by making it easier to show that an impairment substantially limits a major life activity. EEOC's revised regulations provide that:
- An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
(29 CFR § 1630.2(j)(1)(ii))
The definition of "major life activities" includes the operation of a non-exhaustive list of bodily functions which would include the bodily systems that impact a person's weight gain or retention of excess weight. As with all other impairments, under the new ADA standards, the determination of whether obesity meets the definition of disability should not demand extensive analysis.
It is still unclear what level of severity will be necessary before a person's obesity satisfies the definition of disability. Public policy has moved away from the position that only in rare cases will obesity be considered a disability. The characterization of covered obesity has varied from "morbid" obesity to "severe" obesity. Since an impairment need not severely restrict a major life activity to be considered a disability, it may eventually be determined that obesity need not be "severe" to constitute a disability.
The cases dealing with the issues have focused on limitations on other activities, such as walking, in looking at whether obesity substantially limits major life activities or on underlying metabolic disorders that caused the obesity. The AMA vote could encourage policy makers to simply look at BMI or other metrics of the difference between ideal weight and actual weight to determine whether or not a person's obesity rises to the level of an actual disability. BMI could be a problematic metric, as noted in an article by Chris Conover, "Declaring Obesity a Disease: the Good, the Bad, the Ugly" at Forbes.com:
- It’s worth noting that the vote by the A.M.A. House of Delegates contravene the conclusions of the AMA’s own Council on Science and Public Health, which had been tasked to study the issue this past year. Admittedly, the council rested its decision principally on the concern that the measure usually used to define obesity (BMI, body mass index) is simplistic and flawed.
However, some measure of the degree of obesity may still be necessary in determining whether the definition of disability has actually been satisfied so BMI may yet be an attractive place to start. Where policy makers set the benchmark for when obesity moves from impairment to actual disability may make a significant difference in the number of individuals covered by the ADA. Under the "record of" provisions of the ADA, individuals with a history of obesity, even where it is now controlled, i.e., where sustained weight loss below the level of obesity has been achieved, would also be covered.
Establishing a threshold of severity is not important to the determination that an individual has been "regarded as" having a disability by virtue of being obese. The revised EEOC disability regulations state:
- (1) Except as provided in § 1630.15(f), an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity. Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment [29 CFR § 1630.2(l)(1)]
The ADA amendments further clarified that reasonable accommodations are not required for conditions merely "regarded as" disabilities.
Potential Impact on Federal Contractors
So how does all of this impact Federal contractors? Since a decision by the AMA does not impact the interpretation of Section 503 or the ADA, as amended, unless and until the policy makers allow it to influence future policy, it has no legal effect. However, the AMA is an extremely influential organization and its views could impact how EEOC and, in turn, OFCCP define obesity as a disability going forward.
Given the statistics on the numbers of Americans who satisfy the medical definition of obesity, huge numbers of Americans could eventually be viewed as satisfying the definition of obesity as a disability. This would impact everything from how many individuals with disabilities are in your workforce, to how many are in your applicant pools, to how many are in the reasonable recruiting area.
According to the statistics from the Centers for Disease Control and Prevention, 35.9% of Americans over the age of 20 are obese. Given these population statistics on obesity, the proposed goal of 7% disabled per job group might be easily met by individuals disabled by obesity alone. On the flip side, if individuals with disabilities are underrepresented in a job and if the requirement to set a 7% or other hiring goal is finalized, a company that has an opportunity to make progress on that goal may be expected, all things being equal, to hire the person with the disability of obesity over an equally qualified applicant without a disability in order to show that it is making good faith efforts.
Broadening the concept of obesity as a disability could also impact the number and types of accommodations requested. Currently, when the issue of accommodation arises in obesity cases, it involves such things as extensions for seat belts that are too tight, larger desk chairs or parking spaces nearer to the building because the obesity impacts the ability to walk long distances and the like. However, this may change. I can easily imagine accommodations moving from simply accommodations that compensate for limitations imposed by the disability to accommodations that are directed at avoiding exacerbation of the obesity; specifically, accommodations that minimize the likelihood that the obesity will get worse.
For example, Susan Jones notes in her June 19, 2013 article, "AMA Says Obesity Is a Disease; Warns Against 'Prolonged Sitting' at Work" (CNSNews.com):
- Among other actions, the AMA also adopted a policy recognizing the potential risks of prolonged sitting -- and encouraging employers, employees and others to provide alternatives to sitting, such [as] work stations where people must stand.
If a person satisfies the definition of having an actual disability of obesity, it is possible that a desk that allows the individual the option to work standing up could be requested as an accommodation. A person might request an accommodation of a change in work schedule so that he or she can use the gym since increased exercise is critical to the treatment of obesity. Eventually, you may see accommodation requests involving food service provided by the employer or events where the employer makes food available. For example, an employee may request that his or her workstation not be near vending machines stocked with unhealthy food.
Accommodations that deal with managing the symptoms of a disability are common. For example, a person who has a disability that requires medication to be administered during work hours is using the accommodation to manage the condition rather than simply to assist in performing the work. Individuals who need adjustments to their work schedules to accommodate the effects of medications or to attend necessary medical appointments are likewise being accommodated to address and mitigate the symptoms of their disabilities. Thus, there is precedent for the kind of accommodations that would help in the management of the disability of obesity.
The current trend of providing incentives or punishments depending on the extent to which individuals participate in wellness programs may raise issues of potential stigmatization or harassment of individuals because of their actual or perceived obesity. Programs emphasizing the additional health costs associated with obesity may be perceived as either harassment or discriminatory treatment of individuals with the disability of obesity. Programs that put forward thin, athletic individuals as the ideal may potentially be viewed as implying a negative stereotype of individuals with the disability of obesity. Programs that require an employee to provide the employer with statistics such as body mass index may be problematic as an inquiry likely to disclose a disability.
Under the ADA, medical information must be kept confidential and stored in separate files from personnel records. Records containing information about an employee's height and weight may be determined to fall in this category since the height and weight of a person are the factors that are usually used to determine if the person is obese. BMI is calculated using this data. Thus, copies of driver's licenses and other documents that reveal height and weight may eventually be viewed as records containing medical information which must be handled in a manner consistent with other medical information.
The AMA's decision to categorize all obesity as a disease raises a number of questions about how obesity coverage under Section 503 and the ADA should be handled. One of the biggest frustrations for contractors is not knowing what the agencies are thinking on issues such as this. Neither EEOC nor the OFCCP have issued any clear guidance on this issue and the changes brought by the ADA amendments in conjunction with this new declaration by the AMA make this an appropriate time for the agencies to set out their views on this issue. A Federal contractor can only be compliant if it knows what the rules of the road are. I urge EEOC and OFCCP to address some of these fundamental questions. What has to be shown in order for a person with obesity to be considered a person with an actual disability? What kinds of accommodations are appropriate? How should the demands of wellness programs be reconciled with the requirement not to harass or stigmatize obese individuals on the basis of disability? Is information about height and weight considered medical information? If goals are adopted, will individuals with obesity be counted toward the satisfaction of those goals? Will contractors be expected to make good faith efforts to hire obese people? Clarity on these issues will go a long way toward insuring that the disability of obesity is properly understood and that Federal contractors who are trying not to violate the disability laws will know how to avoid non-compliance.