Notes on the Ada: Overweight and Overdue: Weight-Based Discrimination and the Ada Amendments Act

Article excerpt

I. Introduction

It is well-known that overweight Americans suffer from severe and persistent discrimination in the workplace,1 especially if they are female.2 "Weightbased discrimination is perhaps the most prominent and accepted form of discrimination in America today," according to author Molly Henry.3 Its prevalence has increased over the past decade to the point where it is almost as common as race and age discrimination.4 The overweight contend with the stereotype which incorrectly assumes that they are lazy and undisciplined.5 The obesity stigma is so powerful and negative that even overweight Americans prefer not to associate with other overweight people.6

What may be news to many readers is that the words "overweight" and "obese" are not synonyms. "Overweight" means exceeding an ideal weight while "obese" means being sufficiently overweight so as to increase the risk of health problems.7 A century ago, thinness was associated with sickliness and a plump weight was considered ideal.8 Today, the labels "overweight" and "obese" are calculated based on body mass index (BMI), which is calculated as weight in kilograms divided by the square of height in meters. A BMI exceeding 30 is considered obese and therefore a health risk, whereas a BMI between 25 and 30 is considered pre-obese and primarily of concern as a warning sign of future obesity.9 About two-thirds of adult Americans have BMI's that exceed 25 but only about one-third of adult Americans have BMI's that exceed 30.10

Discrimination is experienced by both the pre-obese and the obese, but becomes more severe as BMI increases.11 So one-third of all the working adults in America are pre-obese and may suffer some employment discrimination due to a condition that does not pose substantial health risks to them, while another third of all the working adults in America are obese and suffer harsher employment discrimination due to a condition that does pose substantial health risks to them.

The Americans with Disabilities Act (ADA) would seem to have been a logical place for pre-obese and obese Americans to seek legal recourse from employment discrimination. Obesity is associated with a bevy of disabilities, including but not limited to diabetes, arthritis, and high blood pressure.12 Pre-obesity is a "culturebound syndrome"13 in which healthy people are erroneously perceived to be unwell. Since pre-obese Americans are wrongly perceived to face the same health risks as obese Americans, it would appear that they are incorrectly regarded as being disabled and thereby also entitled to protection under the ADA.14

Obese plaintiffs have tended to experience great difficulty in convincing judges that they were disabled unless they could prove that their weight gain was caused by a physiological disorder such as a glandular problem.15 Given that obesity is considered to be the nation's number one health problem,16 how could it be that obese people have usually not even been regarded as disabled? The assumption made by many judges is that obesity is a voluntary and mutable condition brought upon by a lack of self control, and therefore is not a disability even though the ADA specifies other conditions that could be attributed to personal choices such as addiction to alcohol as disabilities.17

II. The ADA Amendments Act: To the Rescue?

Obese and pre-obese Americans were not the only plaintiffs who couldn't convince judges that they were disabled under the ADA. The ADA Amendments Act (ADAAA) was signed into law by President George W. Bush in September, 2008, as part of a flurry of employment legislation passed near the end of his administration. Other such laws included the Mental Health Parity and Addiction Equity Act,18 the Family and Medical Leave Expansion Act,19 and the Genetic Information Nondiscrimination Act.20 Of all of these laws, the ADA Amendments Act is perhaps the most far-reaching. One of the reasons for its passage was the limited progress that disabled Americans had achieved when asserting their rights under the original ADA. …