Obesity is a disease, according to the American Medical Association (AMA). The AMA’s recent declaration has a multitude of implications for employers, including the potential for increased disability-related litigation. Whether courts will decide to consider obesity a disability under the law remains to be seen, but employers everywhere should beware. 
Obesity not a disability under ADA
The Americans with Disabilities Act (ADA) does not specifically recognize obesity as a disability. In fact, the ADA’s original definition of “disability” was very narrowly interpreted and resulted in an employer- friendly litigation landscape. However, in 2008, the ADA Amendments Act (ADAAA) expanded the definition of disability to include many more diagnosed medical conditions. The expanded definition made it easier for courts to determine exactly what qualifies as a disability. Thus, it made it easier for employees to establish a disability claim in court. But under the ADAAA’s expanded definition, obesity was still not specifically recognized as a disability under the ADA.
Because the ADA did not specifically address obesity, the Equal Employment Opportunity Commission (EEOC) was left with the task of providing guidance to help employers and employees interpret the statute. Notably, the EEOC decided to explicitly exclude “being overweight” from the definition of impairment. Instead, the agency explained that only “severe [or morbid] obesity, [defined as] body weight more than 100% over the norm,” qualifies as an impairment under the ADA without proof of an underlying physiological disorder.
On the other hand, if an employee can prove that his obesity is caused by an underlying disorder such as a heart or thyroid condition, then his obesity may be a disability. As a result, employees who have filed ADA claims based on the assertion that their obesity alone was a disability under the ADA have not been overly successful. For example, in one case, a federal court rejected a police officer’s obesity-related disability discrimination claim because he could not prove that an underlying medical disorder was the cause of his obesity. The police officer weighed more than 300 pounds at the time he filed suit.
EEOC’s successful obesity-related lawsuits
However, the EEOC has recently been more aggressive in its opinion that obesity is a disability under the ADA, as evidenced by the increasing number of lawsuits the EEOC has filed against employers and the private settlements the agency has obtained for ADA claims involving “morbid obesity” as an alleged disability. This type of lawsuit has become especially popular in the past few years. In addition, federal district courts have become more likely to support the EEOC’s position that an employee does not have to prove an underlying condition caused his morbid obesity, especially in cases in which there is evidence that the employer perceived the employee’s obesity as a disability or otherwise expressed prejudice against the employee for being obese.
For example, in one case, a court determined that an employer regarded an obese job applicant as disabled because she had “impaired mobility” and the employer’s doctor said she “was waddling.” In another case, a federal district court expressly adopted the EEOC’s guidance, stating that a “severely obese” employee need not show an underlying disorder to be considered disabled under the ADA. (In that case, the individual weighed nearly 530 pounds.) The rising number of private and EEOC-driven obesity-related lawsuits should serve as notice to employers across the country that an influx of similar ADA suits may be coming.
Obesity is now a disease, but is it a disability?
In June, the AMA officially declared that obesity is a disease. The AMA’s declaration needs to be perceived not merely as a notice but also as a warning to employers nationwide. While the declaration does not create a new legal right for employees under the ADA, it does give employees a new highly respected supporting source to help them establish that obesity, as a recognized disease, is also a disability under the ADA.
What is really troubling, however, is the fact that the declaration seems to have placed obesity within the scope of the ADA’s regulations defining “physical impairment.” A physical impairment includes “any physiological disorder or condition . . . affecting [a body system].” Under that definition, you can expect most courts to easily find that obesity is a “physiological disorder.”
New wave of lawsuits is here
Approximately one month after the AMA’s declaration, Whittaker v. America’s Car-Mart, Inc., was filed in federal district court in Missouri. The newly filed lawsuit, the first of what is sure to be many, suggests that the AMA’s declaration opened the floodgates for a wave of obesity-related lawsuits under the ADA.
Joseph Whittaker alleges that he was terminated from his job as general manager at America’s Car-Mart because he is “severely obese” and is limited in his ability to walk. The lawsuit does not specifically mention his weight, nor does it allege that his obesity is caused by an underlying medical disorder. Whittaker alleges that despite his “disability,” he could perform the essential functions of his job with or without a reasonable accommodation. He claims that he was not only terminated from his employment but was also denied equal employment opportunities because of his obesity. Although Whittaker does not delve into many details, he does allege that his employer acted with malice and reckless conduct and seeks punitive damages in addition to the litany of other types of damages he seeks.
Protect yourself against this new type of lawsuit
It remains to be seen whether courts will interpret the ADA to include obesity as a disability in light of the AMA’s declaration. However, the declaration serves as a warning for employers.
In light of the ADA’s ever-changing litigation landscape, it is a good idea for you to revisit your discrimination policies and retrain managers and employees on how to avoid disability discrimination in the workplace. For example, remind employees that what may seem like a harmless comment to them may be viewed as discriminatory or harassing by others. Even negative attitudes about obese employees can be construed as “my employer perceives me as disabled because I am obese” or “my employer is prejudiced against me because I am obese.” In addition, review and revamp your job descriptions and performance evaluations to contain only criteria that are job-related and consistent with business necessity. A well-documented evaluation process―both in the recruiting stage and during employment―can help insulate an employer from liability.
The outcome of the Whittaker case and other cases filed in the interim will undoubtedly be important for employers nationwide. 
In the meantime, stay up to date on the EEOC’s and the courts’ interpretation of obesity under the ADA.
Julia Hodges is an associate with the Lowenbaum Partnership, LLC, which is of counsel to Ford Harrison LLP. You can reach her at jhodges@lowenbaumlaw.com.