Employers, Check Your Weight-Bias: Obesity, Disability,
and the Broadened Coverage of the ADAAA
_________________________________________________________
By: Gillian Egan1 Previously published by the ADLA Journal
A study released by the Center for Disease Control in August 2012 estimates that 32 percent of adults
in Alabama are obese. Alabama regularly appears in the Top Five of the list of “heaviest states,”
currently weighing in at fourth (behind Louisiana, Mississippi, and West Virginia).2 Though several
initiatives issued by the Alabama Department of Public Health and even private insurers are aimed at
combating the epidemic of obesity, the number of overweight adults in the state has not fallen
significantly. The consequences and costs of this health issue are well-known and often-studied, and
they include increases in medical conditions like diabe tes, heart disease, and stroke, which in turn lead
to reduced productivity and elevating health care costs. On top of the se known cos ts, an additional
issue of potential risk arises when this growing public health epidemic is read in the context of the
Americans with Disabilities Act (“ADA”).
The ADA, passed in 1990, makes it illegal for an employer to discriminate against Americans suffering
from a disability.3 The ADA's protections were significantly narrowed by several U.S. Supreme Court
cases, until Congress passed an amendment in 2008 that explicitly overturned the precedent and
broadened the definition of what it is to be "disabled" under the statute. Because the amendments
have only been applied to employment actions that occurred after January 1, 2009, case law discussing
them is still scarce, and case law applying them specifically in the context of obesity is almost
nonexistent. However, a couple of federal and state courts recently addressed the obesity issue, and
the resulting opinions imply that a change is nigh. Under the pre-amendments ADA, the courts would
generally not view an obese person as disabled unless he or she had some other underlying condition
that caused the obesity. The amendments in effect lowe r the plaintiff’s burden in ADA c ases, and so
now several jurisdictions are encountering – and sometimes embracing - the theory that the amended
ADA now covers obesity as a disability on its own, without inquiry into any underlyi ng conditions. This
1 Gillian Egan is an associate at the Mobile office of Burr and Forman, LLP. She received her undergraduate degree from
Hanover College, her Master’s degree in Shakespeare from the University of Birmingham in the United Kingdom, and her
Juris Doctor degree from Tulane University Law School. She practices in the firm’s Labor and Employment Group, and is
admitted to the Bar in Alabama and Florida.
2 See data from the CDC’s Behavioral Risk Factor Surveillance System compiled into a summary report at the website of the
National Conference of State Legislatures, under Issues and Research/Health/Obesity Statistics in the United States
(available at http://www.ncsl.org/issues-research/health/obesity-statistics-in-the-united-states.aspx).
3 42 U.S.C. §§ 12101, et seq. (2012). Although the ADA also protects the disabled in a number of other contexts, this article
will only discuss the ADA as applicable to employment.
1
