Melvin A. MORRISS, III, Plaintiff-Appellant v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee.
No. 14-3858
United States Court of Appeals, Eighth Circuit
April 5, 2016
817 F.3d 1104
Submitted: Dec. 17, 2015. Equal Employment Opportunity Commission, Amicus on Behalf of Appellant(s); Chamber of Commerce of the United States, Amicus on Behalf of Appellee(s); AARP, Amicus on Behalf of Appellant(s); Equal Employment Advisory Council; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Appellee(s).
III. Conclusion
For these reasons, we affirm Spight‘s conviction.
Bryan P. Neal, argued Dallas, TX (Nichole S. Bogen, on the briefs, Lincoln, NE), for Defendant-Appellee.
Ann W. King, argued, Washington, DC, for amicus EEOC.
Daniel B. Kohrman, Dara S. Smith, Washington, DC, for amicus AARP.
Rae T. Vann, Karen R. Harned, Kathryn L. Comerford Todd, Warren Postman, Elizabeth Milito, Washington, DC, for amici Chamber of Commerce of the United States; Equal Employment Advisory Council; National Federation of Independent Business-Small Business Legal Center.
Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.
WOLLMAN, Circuit Judge.
Melvin Morriss appeals from the district court‘s1 order granting BNSF Railway Company‘s (BNSF) motion for summary judgment and denying his motion for partial summary judgment on his claims that BNSF refused to hire him on account of his obesity and thereby discriminated against him in violation of the Americans with Disabilities Act of 1990 (ADA),
Morriss applied for a machinist position with BNSF in March 2011 and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review. Morriss completed BNSF‘s medical questionnaire, reporting that he was 5‘10” tall and weighed 270 pounds, that he had once been diagnosed as “pre-diabetic” but was not currently diabetic, that he had taken appetite-suppressant medication to lose weight but not to address any health concerns, that he considered his overall health “good,” and that he experienced no difficulties or limitations in his daily activities. In response to BNSF‘s request for additional information concerning Morriss‘s possible history of diabetes, Morriss‘s doctor submitted treatment records for the first three months of 2011, which did not reflect a current diagnosis of diabetes or any symptoms of diabetes.
In May 2011, BNSF doctors conducted two physical examinations of Morriss: at one, Morriss weighed 285 pounds and had a body mass index (BMI) of 40.9; at the other, he weighed 281 pounds and had a BMI of 40.4. BNSF‘s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. Because Morriss‘s BMI exceeded BNSF‘s qualification standards, the company‘s medical department notified Morriss by email that he was “[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).” BNSF then revoked its conditional offer of employment.
Morriss filed this suit in January 2013, alleging that BNSF discriminated against him when it revoked its offer of employment based on his obesity. He claimed that his obesity was an actual disability under the ADA and that BNSF regarded his obesity as an actual disability. BNSF filed a motion for summary judgment, arguing that Morriss‘s obesity did not meet the definition of disability under the ADA because it was not a “physical impairment” and that BNSF did not regard his obesity as a disability. Morriss moved for partial summary judgment only on his claim that BNSF regarded his obesity as a disability.
The district court found that Morriss had failed to provide any evidence to support his claim that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. The court noted that Morriss had unequivocally denied suffering from any medical impairment or condition on BNSF‘s medical questionnaire, had described his health as “good,” and had disclosed no difficulties or limitations in his daily activities. Morriss had instead stated that he did not believe he had a physical disability, that he was not aware of any underlying condition that contributed to his obesity or to his inability to lose weight, and that his weight caused no physical limitations. Morriss‘s personal doctor, who also testified as Morriss‘s ex-
The court also granted BNSF summary judgment on Morriss‘s claim that the company regarded him as having a disability. The court noted that although BNSF admittedly acted on its internal policy that an applicant with Class III obesity and a BMI that equaled or exceeded 40 posed an unreasonably high risk of developing certain medical conditions in the future, the definition of physical impairment—and thus disability—under the ADA did “not include characteristic predisposition to illness or disease.” Order of D. Ct. of Nov. 20, 2014, at 5-6. Because BNSF acted only on its assessment of Morriss‘s predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA. The district court therefore granted BNSF‘s motion for summary judgment, denied Morriss‘s motion for partial summary judgment, and dismissed the action with prejudice. On appeal, Morriss argues that his obesity, even without evidence of an underlying physiological disorder or condition, is a physical impairment—and thus a disability—under the ADA and that BNSF regarded it as such.
The question on appeal, therefore, is whether obesity qualifies as a disability under the ADA.
We review a grant of summary judgment de novo, EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 969 (8th Cir. 2014), and affirm if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” id. (quoting
The ADA makes it unlawful for a covered employer to discriminate against any “qualified individual on the basis of disability.”
The ADA does not define physical impairment, but the EEOC, exercising its statutory authority to issue regulations implementing the ADA, see id.
Morriss contends that this definition of physical impairment cannot be read in isolation and must be considered in light of EEOC interpretive guidance, which refers to weight and states:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. 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. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.
Appendix to Part 1630—Interpretive Guidance on Title I of the ADA (interpretive guidance),
Morriss interprets this language to mean that an individual‘s obesity must be the result of a physiological disorder only if his weight is within “‘normal’ range.” See BNSF Ry. Co. v. Feit, 365 Mont. 359, 281 P.3d 225, 231 (2012) (construing EEOC interpretive guidance and concluding, “Obesity that is not the symptom of a physiological disorder or condition may constitute a ‘physical ... impairment’ ... if the individual‘s weight is outside ‘normal range’ and affects ‘one or more body systems’ as defined in
A reading of the EEOC interpretive guidance in its entirety supports this conclusion. As set forth above, in addition to the language regarding obesity, the interpretive guidance also provides that “[o]ther conditions, such as pregnancy, that are
Two circuit courts have reached this result. In EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 442-43 (6th Cir.2006), the Sixth Circuit rejected the argument raised here, namely, that weight far outside the normal range may constitute a physical impairment even in the absence of an underlying physiological disorder or condition. The Sixth Circuit held that, “consistent with the EEOC‘s own definition, ... to constitute an ADA impairment, a person‘s obesity, even morbid obesity, must be the result of a physiological condition.” Id. at 443. The court rejected the EEOC‘s assertion that a physical impairment could be shown either by “weight problems caused by a physiological condition” or by “morbid obesity ... regardless of the cause.” Id. at 441. After citing to the EEOC interpretive guidance explaining that physical characteristics like weight are excluded from the definition of physical impairment, the court stated:
We decline to extend ADA protection to all “abnormal” (whatever that term may mean) physical characteristics. To do so “would make the central purpose of the statutes, to protect the disabled, incidental to the operation of the ‘regarded as’ prong, which would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed.” Francis v. City of Meriden, 129 F.3d 281, 287 (2d Cir.1997). Thus, consistent with the EEOC‘s own definition, we hold that to constitute an ADA impairment, a person‘s obesity, even morbid obesity, must be the result of a physiological condition.
Watkins Motor Lines, 463 F.3d at 443. The Second Circuit reached the same conclusion, reasoning that obesity, by itself, does not qualify as a physical impairment because “physical characteristics that are ‘not the result of a physiological disorder’ are not considered ‘impairments’ for the purposes of determining either actual or perceived disability.” Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir.1997) (quoting Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir.1997)). The court concluded that “obesity, except in special cases where the obesity relates to a physiological disorder, is not a ‘physical impairment’ within the meaning of the [ADA].” Id. Several other courts have concluded likewise. See, e.g., Wagner‘s Pharmacy, Inc. v. Pennington, No. 2013-SC-000541, 2015 WL 2266374, at *8 (Ky. Sept. 24, 2015) (unpublished per curiam) (interpreting Kentucky Civil Rights Act consistently with federal law and concluding under EEOC regulations that “[a]bsent a physiological cause for her morbid obesity, [plaintiff] cannot prevail“); Ivey v. D.C., 949 A.2d 607, 612-13 (D.C.2008) (rejecting claim that obesity rendered plaintiff disabled and noting that, although morbid obesity can be considered a disability when supported by evidence that it was the result of physiological condition, no such evidence was proffered); Merker v. Miami-Dade Cnty. Fla., 485 F.Supp.2d 1349, 1353 (S.D.Fla.2007) (same); Marsh v. Sunoco, Inc., No. 06-CV-2856, 2006 WL 3589053, at *4 (E.D.Pa. Dec. 6, 2006) (concluding that “[p]hysical characteristics that are not the result of a physiological disorder are not considered impairments for the purposes of determin-
Morriss argues that the decisions in Watkins Motor Lines and Francis are inapposite because those cases were decided prior to the enactment of the ADAAA, which made substantial revisions to the ADA. He cites instead post-ADAAA cases that hold that obesity is a physical impairment under the ADA—even in the absence of an underlying physiological disorder or condition. See Feit, 281 P.3d at 231 (noting that ADA, ADAAA, and EEOC interpretive guidance are persuasive authority for construing state law and holding that obesity that is not the result of a physiological disorder or condition may constitute a physical impairment under Montana Human Rights Act if weight is outside “normal range” and affects “one or more body systems“); EEOC v. Res. for Human Dev., Inc., 827 F.Supp.2d 688, 694 (E.D.La.2011) (construing EEOC interpretive guidance and reasoning that a physiological cause for obesity is required only when an ADA disability-discrimination claimant‘s weight is within the normal range). These cases cite Congress‘s general policy statements in the ADAAA as support for an expansive interpretation of “disability,” noting that Congress expressed an intent to provide “broad coverage” of individuals with disabilities.
Congress‘s stated goal in enacting the ADAAA was to ensure that “[t]he definition of disability ... be construed in favor of broad coverage of individuals under [the ADA].”
Notably, Congress did not express any disagreement with judicial interpretations of the term “physical impairment.” Congress expressly stated its intent to abrogate the Supreme Court‘s interpretation of “substantially limits a major life activity” in Sutton and Toyota Manufacturing, and presumably would have done the same had it intended to abrogate the interpretation of “physical impairment” in Watkins Motor Lines and Francis. See Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (noting that “Congress is presumed to be aware of [a] ... judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change“). Similarly, although Congress instructed the EEOC to revise its definitions of “substantially limits” and “major life activity” to ensure broad coverage of individuals with disabilities, it gave no instructions regarding the definition of physical impairment. Instead, even after the ADAAA, “physical impairment” is defined as a physiological disorder or condition that affects a major body system. See
Morriss also cites a provision in the EEOC interpretive guidance that says that Congress intended that the “threshold” question whether an “impairment is a disability” under the ADA “should not de-
Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled “severe,” “morbid,” or “Class III” obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder. As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while “normal deviations” in weight “that are not the result of a physiological disorder are not impairments[,] ... [a]t extremes, ... such deviations may constitute impairments.” EEOC Compliance Manual § 902.2(c)(5). The Compliance Manual also states that “severe obesity,” namely, “body weight more than 100% over the norm,” is an impairment. Id.
We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC‘s own regulations and interpretive guidance, which, as previously explained, all define “physical impairment” to require an underlying physiological disorder or condition. We next note that the argument raised by Morriss was considered and rejected by the Sixth Circuit in Watkins, in which the court concluded that morbid obesity was not a physical impairment in and of itself merely because it fell further outside the normal range than some other category of obesity. See 463 F.3d at 443 (holding that “consistent with the EEOC‘s own definition” of impairment, “a person‘s obesity, even morbid obesity, must be the result of a physiological condition“). Moreover, even if we accepted Morriss‘s argument that “body weight more than 100% over the norm” qualifies as a physical impairment even without an underlying physiological disorder or condition, his claim would fail. “Norm” as used in this context refers to the average weight of the general population. According to the Centers for Disease Control and Prevention (CDCP), the mean weight, i.e., the norm, for a man of Morriss‘s age (37 at the relevant time) is 199.5 pounds.5 Weight “more than 100% over” 199.5 pounds is weight of at least 399 pounds. Morriss did not weigh 399 pounds when BNSF conducted its two physical examinations of Morriss or when it revoked its offer of employment. Thus, Morriss did not have a physical impairment even under his suggested definition of the term.
In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did
We turn, then, to Morriss‘s argument that BNSF discriminated against him because it perceived him has having a physical impairment. See
Morriss did not produce evidence that BNSF perceived his obesity to be an existing physical impairment—in fact, the questionnaire and treatment records that Morriss and his doctor provided to BNSF notified the company that Morriss was not suffering from any physical impairment. The physical examinations conducted by BNSF revealed that Morriss‘s BMI exceeded BNSF‘s internal limits for safety-sensitive positions, but those examinations did not reveal that Morriss had a physical impairment. Indeed, it was “undisputed that Morriss ‘was denied employment ... not because of any then current health risk identified by BNSF ..., but because BNSF believed by having a BMI of 40, [Morriss] would or could develop such health risks in the future.‘” Order of D. Ct. of Nov. 20, 2014, at 5 (quoting Plaintiff‘s Supporting Brief at 11). The district court properly rejected Morriss‘s argument that BNSF perceived him as having a physical impairment.
The judgment is affirmed.