We know that the ADAAA (Amendments Act of 2008) substantially altered the landscape for review of claims asserting a disability. But are employees still required to show some sort of disorder or impairment to state a claim? Is morbid obesity an impairment even if it is not tied to any underlying disorder? A case pending before the Seventh Circuit Court of Appeals is set to decide whether obesity is an impairment in and of itself under the ADAAA.

Prior to the ADAAA, both federal appeals and district courts had held that obesity was a physical characteristic that had to stem from an underlying physiological disorder to be considered an impairment under the ADA. In the case pending before the Seventh Circuit, Richardson v. Chicago Transit Authority, Nos. 17-3508 and 18-2199, the lower court found that obesity didn’t, on its own, qualify as an impairment, and dismissed Mark Richardson’s wrongful termination suit under the ADA
Richardson, an obese bus driver, alleged that he was wrongfully fired when he attempted to return to work after an extended medical leave. Richardson also claimed that he was subjected to a “safety assessment” that was different from the one normally required for bus drivers returning from leave. After his request to return to work was denied, he filed a discrimination complaint with the EEOC.

Richardson is supported in his appeal by the AARP, the Obesity Action Coalition, the Obesity Society and other obesity advocacy and medical organizations. They each filed amicus (friend of the court) briefs arguing that the ADAAA recognized that obesity itself could be an impairment without any underlying physiological disorder and citing new scientific and medical evidence.

The Transit Authority, with the support of industry groups, asserts that Congress intentionally preserved the ‘impairment’ aspect of the ADA in the ADA Amendments Act, and that the scientific evidence is neither new nor supportive of a changed legal standard for evaluating claims involving alleged obesity discrimination. They argue that because the ADAAA did not address pre-ADAAA court decisions, or the EEOC’s earlier guidance, the court should conclude that the legislative body meant to keep the same approach and handling of impairment and obesity claims. They also argue that expanding the definition of impairment to include obesity without an underlying physiological disorder would burden employers more than the ADA intended.

Oral Argument has not yet been scheduled and there is no timetable for a decision, but this will certainly be a case to watch in 2019.