The obesity epidemic that attracts so much attention in terms of public health serves as an additional reason for businesses and property owners to pay attention to ADA and FHA accessibility issues. The statistics are well known and striking. In the last 40 years obesity (Body Mass Index >30) has increased from around 12% to more than 30% of the population. Extreme obesity (Body Mass Index > 40) has increased from around 1% to more than 6% of the population. (http://win.niddk.nih.gov/statistics/index.htm) If current trends continue, extreme obesity will become as common as mobility disabilities, which affect around 7.5% of the population (http://www.pascenter.org) .
The change in the number of obese individuals has been accompanied by a change in the legal view of obesity. Prior to the 2008 ADA Amendments Act most courts found that “morbid obesity” was not a disability unless it had a physiological cause. (See, e.g., EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006)). After the passage of the ADAAA the EEOC revised its Compliance Manual to remove language suggesting that obesity would only rarely constitute a disability, affirming its position that severe obesity is “clearly an impairment.” (EEOC Compliance Manual §902.2(c)(5)(ii).) Since that time district courts have begun to find that severe or morbid obesity can be a disability regardless of its cause. Lowe v. American Eurocopter, LLC, 2010 WL 5232523, *7 (N.D.Miss. Dec. 16, 2010).
For business owners the change in population and the law only strengthens the case for review of accessibility compliance in facilities subject to Title III. A population that is growing older (http://www.census.gov/population/age/) and heavier will inevitably include a larger number of individuals with disabilities. This means more potential customers who will may be discouraged from patronizing a business that is not accessible. It also means more potential plaintiffs. My informal review of the cases seems to indicate that the number of ADA lawsuits filed relates to the number of individuals with a particular disability. Most Title III ADA accessibility lawsuits are brought by individuals who have mobility disabilities, which is the largest population of disabled individuals. The next largest group of disabled individuals, those with cognitive impairments, are among the most likely filers of Title II lawsuits, probably because programs involving those with cognitive impairments, like schools, are overwhelmingly operated by governmental entities. As more and more Americans become disabled by age or weight the number of lawsuits is bound to rise.
“Every challenge is an opportunity” according to the motivational posters. For businesses the challenge presented by the increased risk of ADA litigation is also an opportunity to gain a competitive edge. Early review and remediation can make any business more attractive to the growing number of disabled Americans, and can reduce the cost of ADA compliance by taking the lawyers out of the process.