HR Management & Compliance

Court Weighs Illinois Bus Driver’s Obesity as a Disability Under the ADA

by Steven L. Brenneman

An obese Chicago Transit Authority (CTA) bus operator alleged he was discriminated against when the agency refused to allow him to return to work following medical leave. A federal court recently said “fat chance” to the CTA’s request for early dismissal of the driver’s Americans with Disabilities Act (ADA) claim.


Throwing His Weight Around

“Eric” worked as a bus operator for the CTA from August 1999 until February 2012. In September 2010, he attempted to return to his job from an extended medical leave of absence. At the time, a physician employed by the CTA determined Eric was physically able to return to work as a bus driver.

A few days later, however, Eric was given a “safety assessment” he claimed was different from safety assessments normally required of bus drivers returning from an extended medical leave. Ultimately, the CTA rejected his return-to-work request. Eric claimed his request was denied because the CTA regarded him as disabled since he is obese.

Weighing the Issues

As seasoned HR professionals understand, the ADA prohibits employers from discriminating against a “qualified individual on the basis of disability” in employment decisions. Therefore, to establish a claim under the ADA in federal court, Eric was required to allege that he was disabled within the meaning of the Act.

To establish a disability under the ADA, an employee must demonstrate that he (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) was regarded as having such an impairment. In this case, Eric did not claim he actually had an impairment or a record of a disability. Rather, he claimed he was regarded as having an impairment.

Not Over Until the Fat Lady Sings

The CTA asked a federal judge in Chicago to dismiss Eric’s complaint, claiming he did not sufficiently allege that he is disabled under the “regarded as” prong of the definition. However, the court pointed out that the 2009 amendments to the ADA make clear that an employee meets the “regarded as having such an impairment” requirement regardless of whether the impairment limits or is perceived to limit a major life activity.

Thus, the CTA’s argument that Eric had to allege that the impairment he was regarded as having substantially limited one or more major life activities was obsolete and was not a sound basis for dismissal.

The next stop on the CTA’s route toward its desired destination of dismissal was its argument that obesity cannot constitute a disability under the ADA “unless it both falls outside the normal range for weight and occurs as the result of a physiological disorder.” The court acknowledged that the CTA may be correct on that point.

Although the U.S. Court of Appeals for the 7th Circuit (which covers Illinois, Indiana, and Wisconsin) has not squarely addressed the issue, other courts are split on whether an ADA claimant who alleges he was discriminated against on the basis of obesity must demonstrate that the obesity results from a physiological disorder.

But that weighty issue of law can wait for another day, said the court. Even if Eric must eventually prove that his obesity is caused by a physiological disorder, at this early stage of the case, he was not required to allege that argument in his complaint. Therefore, his ADA claim may proceed. Richardson v. Chicago Transit Authority, No. 16-cv-3027 (N.D. Ill., Oct. 17, 2016).

A Load Off Your Mind

This decision—in the early stages of the lawsuit—provides two important reminders on the ADA. First, the “regarded as” prong of the definition of “disability” does not require an employee to show the impairment in question is perceived to limit a major life activity. Therefore, employees may rely on the “regarded as” prong even if they do not have an impairment that substantially limits a major life activity (as may be the case with Eric).

Second, whether obesity constitutes a disability under the ADA will be determined by a particularized assessment of each situation—and perhaps future court decisions. If you are faced with a request for an accommodation related to an employee’s obesity, ask him whether the condition is caused by a physiological disorder and, if so, what disorder.

Also, ask which major life activities are substantially limited by his obesity. The answers to those questions will enable you and your employment counsel to throw your weight behind the proper response.

This article was written by Steven L. Brenneman of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at