A Nebraska man has appealed a lower court’s decision that his obesity is not a physical impairment protected by the Americans with Disabilities Act (ADA).

Melvin Morriss III maintains he was denied a job because of the current and future impairments the company associated with his weight.

In May 2011, Mr. Morriss, whose body-mass index is about 40, was given a conditional offer of employment from BNSF Railway Company, as a machinist. According to his claim, he passed all the required tests, but his workplace physical exam showed he was “morbidly obese.”

The company cited workplace policy, saying Mr. Morriss was not qualified for the “safety sensitive” machinist job due to health and safety risks associated with his obesity.

The question Mr. Morriss raises in his suit is: When does obesity count as a protected disorder under the ADA?

Specifically, is an employee’s weight an impairment — or can it be perceived as an impairment as defined under the ADA?

The federal district court held that Mr. Morriss’ obesity was not an actual impairment under the ADA, and it could only be considered if it were caused by a physiological condition or as a symptom of a previous health related issue.

Some have questioned the implications of the court’s holding, as oftentimes it may not be possible for an employer to know if an individual’s obesity is caused by an underlying problem or not. Also, since the decision, there have been some amendments to the ADA.

Mr. Morriss is appealing. In a brief to the U.S. Court of Appeals for the Eighth Circuit, his attorneys argue that some medical groups classify obesity as a disease, and medications and surgical intervention are often used as treatment.

On the other hand, BNSF Railway, in its brief, argues that obesity may only form the basis of a claim if the employer perceived the person’s weight as a present impairment. In this case, BNSF argues, the employer did not. The company’s decision to not hire Mr. Morriss was not based on a perceived impairment but instead, merely a physical characteristic — like red-headedness, BNSF’s brief states.

The U.S. Chamber of Commerce also filed a brief, arguing that obesity is not an ADA disability when it neither causes a significant functional impairment nor is caused by a physiological disorder. Doing otherwise would be an unreasonable burden on employers, the Chamber argued.

On the other hand, the U.S. Equal Employment Commission has filed an amicus brief in support of Mr. Morriss, arguing that obesity should be considered a disability under the ADA whenever it exceeds the “normal” range. It’s unclear, though, exactly where that line would be drawn. Let us at Wenzel Fenton Cabassa help you with your employment rights case by calling us today.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.