An Alabama field salesperson for a provider of hospice services to the termimally ill sued her former employer under the ADA claiming that she was fired “on the basis of her disability, morbid obesity.”  The company claimed to have fired her for performance issues.

The Plaintiff

She is 5’3″ tall and at the time of employment weighed approximately 230 pounds.  She testified that she was not aware that her weight status was caused by any underlying medical condition; she did not claim that her weight caused or created other health conditions; and she said that “her weight neither interfered with her ability to perform required tasks for her job nor impaired her ability to care for herself or engage in day-to-day activities.”   She even said that she “walk[ed] her dog or walk[ed] on a treadmill for distances of approximately one mile approximately three days per week.”

Did she have a viable claim just upon these facts?

Our Aside

Before we get to the Court’s decision, we note that only one state – Michigan – and only 6 cities prohibit discrimination based upon physical appearance or obesity.  We also note that a few courts have taken the position that obesity is a “disability” under the expanded ADA definition.  See our posts of August 13, 2013 and July 2, 2012.  And, of course, morbid obesity could very well have an underlying medical cause or be part of a medical condition considered to be a disability.

We posted of the recent decision of the American Medical Association to declare obesity a disease and commented that this would likely spur lawsuits under the Americans with Disabilities Act, and reported on a decision from a state appeals court in Kentucky which found that a plaintiff stated a viable disability discrimination claim even if it did not quite find that ”morbid obesity,” without more, is a disability.

The Court Decision

The Alabama Court had an easy decision to make in this case:  it held that “a plaintiff’s status as being overweight, without more, has been held not to constitute a disability within the meaning of the statute. … [s]o the critical question for purposes of assessing whether [plaintiff] is “disabled” for ADA purposes is whether her obesity substantially limits one or more of her major life activities. [Her] own testimony unequivocally establishes that her weight imposes no such limitations.”

At summary judgment plaintiff raised for the first time the claim under the ADA that the company “regarded  her as obese.”  The Court held that raising this claim on a motion was improper, but in any event “the only evidence [she] offers on [her “regarded-as” theory] is her supervisor’s comment during the corrective counseling meeting [on performance] that “she wasn’t even going to discuss the weight issue at this time,” that her jewelry and clothing were inappropriate, and that this is why her sales numbers were so low.”  The Court found that  comment carried little weight.

The Court’s Funky Commentary

The Court got to the core of the case and distinguished between her boss viewing her as overweight, and viewing her weight as constituting a physical impairment.

However, this is where the Court got a little funky, stating that:

“plenty of people with an ‘undesirable’ physical characteristic are not impaired in any sense of the word.  To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight.”

So the next time weight is somehow an issue think about this case and whether a neon green mohawk is a disability or merely “undesirable” or “unprofessional.”