Obesity and the EEOC's ADA Final Regulations

A running debate in ADA case law is whether or not obesity is a covered impairment.  Decisions have gone both ways under the ADA as it was originally enacted.  Older EEOC guidance on what is a disability said that severe obesity was itself an impairment but that being overweight without a physiological disorder was not itself an impairment.  (The leading case on morbid obesity, Cook v. Rhode Island, 10 F.3d 17, 24 (1st Cir. 1993), actually turned on the “regarded as” definition of a disability and if an impairment is not a disability for actual disability purposes, it is also not a disability for perceived disability purposes. See 29 C.F.R. § 1630.2(i).)

On Friday, the EEOC issued final regulations construing the 2008 Amendments to the ADA (which take effect on May 24, 2011).  Since one major purpose of the 2008 Amendments was to increase the coverage for individuals with a disability, I was curious what these regulations said about whether obesity is a covered impairment.  The regulations (and comments to them) do not address the issue directly.  The comments do explain, however, that

The definition of the term ‘‘impairment’’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘‘normal’’ range and are not the result of a physiological disorder.

So, nothing appears to have changed.  The question goes unanswered.

Of course, after the 2008 Amendments, employer are best off assuming most any impairment is a disability and acting accordingly.  There are recognizing exceptions, of course, for temporary and minor injuries, but better to be safe than act on a mistaken belief that an employee does not have a disability.