konishiki-1Just a quick note concerning obesity. In an April 5, 2016 decision the Eighth Circuit joined the Sixth and Second Circuits to hold that even morbid obesity is not a disability unless it is accompanied by an underlying physiological disorder or condition. Morriss v. BNSF Ry. Co., 2016 WL 1319407,  (8th Cir. Apr. 5, 2016). The Court’s discussion is thorough, but boils down to a straightforward reading of the ADA. The definition of “disability” in the ADA starts with the phrase “physical or mental impairment.” EEOC regulations define “physical impairment” as a “physiological disorder or condition,” and its interpretive guidance, according to the Court, states that weight is only a physical characteristic, not a physiological disorder, unless it is the result of some other physiological disorder. Obesity as the result of a thyroid disorder is a disability; obesity as a result of eating is not. Konishiki, the famous sumo wrestler, is not disabled.

The decision is notable as the first circuit court decision in a case decided after the 2008 ADA Amendments went into effect. The Amendments were broadly intended to expand ADA coverage, and there was some belief that morbid obesity would fit the more liberal standard. This does not mean the law is uniform. Some lower courts have found that morbid obesity is a disability in and of itself. Employers who want to rely on Morriss v BNSF Ry. need to make sure it is the law in their circuit, and carefully consider whether the obesity in question is not the result of some other disorder or condition.