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In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees.  The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35.  For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds.  All potential employees are screened by a physician to assess their fitness for duty.  According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”

In Texas, weight is not a protected characteristic.  In fact, weight is only a protected characteristic in one state—Michigan—and in only six U.S. cities, including Binghamton (New York), Urbana (Illinois), Madison (Wisconsin), Washington, D.C., and Santa Cruz and San Francisco (California).

While legal under most state discrimination laws, one must determine if this policy would be legal under the federal Americans with Disabilities Act (ADA) or the Americans with Disabilities Act Amendments Act (ADAAA).  Individuals with mental and physical impairments that substantially limit major life activities are protected by the ADA.  Individuals who have a record of such an impairment and those regarded as having an impairment are also protected under the ADA.  The ADAAA was enacted in 2009 and made significant changes to the ADA that opened the protections of the ADA to a much larger group of people.

Specifically, the ADAAA made coverage under the ADA broader by relaxing the standard of “substantial limitation.”  Additionally, the ADAAA expanded the scope of “major life activities” to include the operation of major bodily functions, and to include activities such as sitting, reaching, bending, and lifting.  The addition of these activities may be relevant to a claim that obesity is a covered impairment.  While the ADAAA states that the definition of impairment does not include physical characteristics such as height, muscle tone, and weight that are within a normal range, it does not speak to the classification of these characteristics when they are outside of the normal range, leaving open the possibility that a court could find that obesity is a covered impairment.  See 29 CFR §1630.2(h).

Moreover, the ADAAA changed the analysis of the “regarded as” prong of the disability definition by omitting the requirement that an individual prove that he or she is actually disabled in order to proceed under the “regarded as” analysis of the ADA.  Therefore, there is an argument that an individual who is obese may bring a successful “regarded as” claim if an employer takes prohibited action based on its belief that the individual’s weight is an impairment, even if no impairment actually exists.

While the ADAAA may have changed the scope of substantial limitation, major life activities, and regarded as disabled, it did not change the definition or the burden of proof associated with the term “qualified.”  Therefore, an individual must still show that he or she is qualified for the position he or she seeks.  The term “‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”  See 29 CFR §1630.2(m).

Some courts have used the qualification standard of the ADA to uphold weight restrictions imposed by employers.  See, e.g., Furst v. State of New York Unified Court Sys., No. 97-CV-1502 (ARR), 1999 WL 1021817, at *6 (E.D.N.Y. Oct. 18, 1999) (upholding employer’s weight requirements because they are created to ensure that each candidate “is capable of performing the physical aspects of the Court Officer job in a safe and effective manner, so as not to endanger both himself and the public”).

If Citizens Medical Center’s weight policy is challenged in a federal court on ADA grounds, it will be interesting to see if the court holds, among other things, that the weight policy is directly related to the essential requirements of a position at the hospital.