Employers often face difficult challenges when they’re called on to determine if employees are “disabled,” especially when considering characteristics like height and weight. 
It’s up to you
Under the Americans with Disabilities Act (ADA), a person is considered “disabled” if he has a physical or mental impairment that substantially limits one or more major life activities. The ADA doesn’t otherwise define “impairment,” but the Equal Employment Opportunity Commission (EEOC) has opined that an impairment doesn’t include certain physical characteristics like height and weight that are within a normal range and not caused by a physiological disorder.
Thus, as the U.S. Supreme Court concluded in Sutton v. United Air Lines, Inc., in 1999, “An employer is free to decide what physical characteristics or medical conditions that do not rise to the level of an impairment―such as one’s height, build or singing voice―are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” Although that conclusion seems to preserve employer discretion, it has also left employers with the unenviable task of deciding what’s “normal.”
The height of folly, or the folly of height?
Height isn’t ordinarily considered an impairment, but a federal trial court in Arizona recently gave short shrift to an employer’s motion to dismiss a disability discrimination claim brought by an employee who is approximately 4’10” tall. The motion was denied because the employee’s stature could, in some contexts, substantially limit her major life activities.
Barbara Joy McElmurry, a lab worker tasked with screening insect traps for the Arizona Department of Agriculture, raised employee health concerns with her supervisor. After she reported that a coworker was developing carpal tunnel syndrome, the supervisor began stroking McElmurry’s arms and shoulders so she wouldn’t get carpal tunnel. Other employees who complained were moved to fieldwork or fired, and tensions increased after a new supervisor arrived.
The new supervisor increased work quotas, berated employees, and also “stroked McElmurry’s arm, hugged her, or rested her head on McElmurry’s head.” McElmurry was demoted to fieldwork after saying she would file harassment charges. She objected to the reassignment, saying she couldn’t drive the department’s vehicles because of her short stature. Her objection was ignored, and she later sustained an injury and was fired.
McElmurry filed a charge of employment discrimination alleging retaliation, discrimination, harassment, and wrongful termination. The department asked the court to dismiss her claims. Her federal age discrimination and state-law claims were dismissed as being untimely filed, leaving the question of whether she made a valid disability discrimination claim under the ADA based on her height.
The department argued that height can never be a disability. Rejecting that theory as a tall tale, the court noted that McElmurry alleged that her height “is outside the normal range” and it’s at least plausible that short stature could substantially limit one or more major life activities in some contexts. The court didn’t conclude that short stature is an impairment or disability; it merely found that McElmurry’s allegations that stature could substantially limit major life activities were sufficient to state a claim under the ADA. McElmurry v. Arizona Dep’t. of Agriculture.
Weight, weight―don’t tell me
By contrast, the West Virginia Supreme Court dismissed an employee’s claim that obesity is an actual or perceived disability under state law.
Racing Corp. hired Andrew O. as a part-time blackjack dealer. He weighed about 540 pounds, had a thyroid condition, and allegedly suffered from arthritis in his legs and back. Under the dress code, he had to wear a long-sleeved tuxedo shirt tucked into black pants, with the sleeves rolled down and buttoned at the wrists. Racing Corp. didn’t have a shirt that fit him, but it ordered the largest one it could find and had a seamstress tailor it. He complained that the shirt didn’t fit and he couldn’t tuck it in, so his direct supervisors allowed him to leave it untucked.
Andrew also complained that he couldn’t walk to the break area without suffering shortness of breath and fatigue, so his supervisors let him take breaks in a public area. Moreover, he had problems standing for long periods of time. He provided a note from his doctor saying he needed to sit at work because of his weight, so Racing Corp. assigned him to a wheelchair-accessible blackjack table.
In the weeks that followed, the assistant director of gaming reprimanded Andrew for failing to keep his shirt tucked in and for not taking his breaks in designated areas. The next time he reported to work, again with his shirt untucked and his sleeves unbuttoned, he was terminated.
Andrew filed a state-law claim alleging disability discrimination, and the circuit court granted the employer’s motion for summary judgment (pretrial dismissal) after concluding that he wasn’t disabled. In affirming that decision, the supreme court rejected Andrew’s argument that his obesity, thyroid condition, and arthritis substantially limits his endurance, ability to stand and walk, and ability to care for himself. The court cited his testimony that he could “do almost everything” the average person does, but at his own pace. The court also noted that the doctor’s note requested only that he be allowed to sit at work rather than saying he was substantially limited in any major life activity.
The West Virginia Supreme Court acknowledged the EEOC guidelines, which state that being overweight isn’t generally deemed an impairment, but severe obesity (body weight more than 100 percent over the norm) is an impairment or may be symptomatic of an underlying physiological disorder that is an impairment. However, because state law doesn’t mirror the ADA, the lower court didn’t err by declining to follow those guidelines.
The court also rejected Andrew’s claim that he was perceived as disabled because Racing Corp. made accommodations for him. The court found it’s simply sound business policy for an employer to assist an employee with performing his job functions, and assisting an employee with a particular need doesn’t automatically mean the employer considers him disabled. Andrew O. v. Racing Corp. of W.Va.
The result probably would have been different in other states that more closely follow the ADA. Additionally, the American Medical Association (AMA) has recently recognized obesity as a “disease,” further bolstering arguments that it’s a disability.
Bottom line
The definitions of “disability” and “impairment” continue to evolve. The cases discussed in this article are evidence that height and weight may be viewed as disabilities when they result in a substantial impairment on major life activities. Employers should be aware that this evolution in thinking may not be limited to physical characteristics. The recently published Diagnostic and Statistical Manual of Mental Disorders (DSM-5) may change how mental disorders are viewed and defined. The DSM-5 contains an expanded list of symptoms for some existing disorders and identifies new disorders.
In other words, employers must continue to be vigilant when considering disability claims and requests for accommodation as medical professionals and courts continue to reassess what constitutes physical and mental impairment. 
Christopher J. Pyles is an attorney with Sulloway & Hollis in the firm’s Concord, New Hampshire, office. He may be contacted at cpyles@sulloway.com.