Another big courtroom defeat for the Equal Employment Opportunity Commission: “A panel of the U.S. Court of Appeals for the Eighth Circuit ruled this week that obesity is not a ‘disability’ within the meaning of the Americans with Disabilities Act — even as amended in 2009 — unless the condition was caused by some underlying physiological disorder. …The panel specifically rejected the position taken by the EEOC in its Compliance Manual.” [Employment and Labor Insider, Constangy; Morriss v. BNSF Railway]
P.S. As commenters point out, “obesity-as-perceived-disability” would be more precise. The law’s recent extension to complainants “perceived as” disabled is proving, just as advocates hoped and defendants feared, to be a major engine of expansion of legal coverage to complainants who in the past could not claim disabled status. More: John Bratt (recalling “Simpsons” episode).
Airline and theater seats, equipment in doctors’ offices, and now, inevitably, housing: “Carmen Bowen, 44, has been involved in a two-year dispute with the Cuyahoga Metropolitan Housing Authority over how much work must be done to help her move around her [Cleveland, Ohio] apartment.” Ms. Bowen weighs 772 pounds and the agency has already agreed to an extensive menu of apartment renovations that it believes go beyond what the federal ADA requires: “The modifications include removing doors and walls, installing an automatic door operator and panic device, demolishing the existing bathroom and installing a special shower, and putting in a sidewalk to the front door.” However, “Bowen filed a discrimination complaint, saying the agency took too long. … In August, 22 firefighters and emergency medical technicians worked for 2 1/2 hours to move Bowen from her apartment so she could have dental work.” (“Housing agency works to accommodate 772-pound tenant”, AP/Akron Beacon Journal, Nov. 17).
Aside from the important employment law implications linked last week in this space, the American Medical Association’s decision to reclassify obesity as a disease has implications for Medicaid and private reimbursement of therapy (“now coverage policy must catch up to that consensus,” exulted an officer of the American Society for Metabolic and Bariatric Surgery) and more pervasively for nanny-state initiatives: “Already, Harold Goldstein, executive director of the California Center for Public Health Advocacy, has cited the AMA declaration to boost his group’s efforts to ban junk food and tax soft drinks.” [Mike Tanner] (& welcome Joe Palazzolo, WSJ Law Blog readers)
In case you imagined that the Equal Employment Opportunity Commission these days was all sweetness and reason with employers in enforcing anti-discrimination law, check out Baseball Crank’s analysis (Sept. 12) of a new Sixth Circuit case, EEOC v. Watkins Motor Lines (PDF). Watkins Motor Lines hired Stephen Grindle, who then weighed 340 pounds, as a driver/dock worker:
Approximately 65% of his time was spent performing dock work including loading, unloading, and arranging freight. The job description for this position notes that the job involves climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting.
Grindle continued to gain weight, hitting a high of 450 pounds.
In November 1995, Grindle sustained an on-the-job injury. He was climbing a ladder at the loading dock and a rung broke. He started to fall and caught himself but, in doing so, he injured his knee. …
[In 1996 an industrial clinic doctor, Dr. Walter Lawrence,] found that Grindle had a limited range of motion and that he could duck and squat but he was short of breath after a few steps. Dr. Lawrence also noted that “[o]n physical examination, the most notable item is that the patient weighs 405 lbs.” Dr. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform the requirements of his job.
So the company let him go, he sued, and the Sixth Circuit has now upheld the dismissal of his suit on summary judgment, not on the grounds you might think (that the grounds for his dismissal were obviously rational) but rather on the grounds that morbid obesity, when not caused by a physiological disorder at least, is not an “impairment” under the Americans with Disabilities Act. Michael Fox at Jottings of an Employer’s Lawyer also comments (Sept. 12) as does lawprof Sam Bagenstos (Sept. 12).
- Housing authority in Meeker, Colorado, population 2,250, will pay nearly $1 million to settle suit over limits on emotional support animals [Niki Turner, Rio Blanco Herald-Times, Kathleen Foody, Associated Press/Colorado Sun, Stina Sieg, Colorado Public Radio]
- Volume of web-accessibility suits continues to climb [Seyfarth Shaw; John Breslin, Florida Record] More on growth of this litigation [podcast with Karen Harned, NFIB, for Federalist Society Regulatory Transparency Project (earlier on pool lifts)] “DOJ Says Failure to Comply With Web Accessibility Guidelines is Not Necessarily a Violation of the ADA” [Minh Vu, Seyfarth Shaw, from last October] Second Circuit dismissal of web-access complaint in Diaz v. Apple, Inc. could be helpful to defendants [Joshua Stein and Shira Blank, National Law Review]
- Report on ADA filing mills in Rochester and vicinity [Berkeley Brean, WHEC: first, second, third (colleges), fourth, fifth]
- And more on New York mass filing operations: Inveterate suer of restaurants reaches Staten Island [Pamela Silvestri, SI Live] Finger Lakes wineries targeted [Jane Flasch/WHAM in February; Michael J. Fitzgerald, Finger Lakes Times] “Finkelstein has gone on a lawsuit-filing spree since getting his law license back in New York state in 2016,” and among his 50 ADA suits are some the named plaintiff says he didn’t know about [Julia Marsh, New York Post]
- In EEOC-land no one can hear you honk [press release on EEOC lawsuit against limo service that declined to hire deaf driver]
- “Washington Supreme Court Says Obesity Is a Disability” [Ben McDonald, and thanks for quote; earlier]
- A rein on line-jumping by disabled tour guides? Walt Disney World changes ride admission policy [WKMG Orlando, earlier here and here]
- Every body into the ADA: Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis in U. Chi. Law Review are latest to propose “universal” right to accommodation [Bagenstos]
- Speaking of which, everyone interested in disability law should be following Prof. Sam Bagenstos’s Disability Law Blog, the ultimate source of many articles linked in this space. I’m honored that Prof. Bagenstos has invited me to speak to his disabilities law class today at the University of Michigan (sorry, it’s not a public event), all the more so since we regularly square off on opposite sides of these issues;
- “First ADA suit since AMA’s obesity policy: Is this the start of something big?” [HR Morning via Eric B. Meyer]
- “Disability Groups Defend California’s LSAT Anti-Flagging Law” [Karen Sloan, NLJ]
- “Student Sues Kaplan For Not Providing Sign Language Interpreter” [Florida Daily Business Review] Another movie theater captioning suit [Connecticut Law Tribune]
- Rep. Tammy Duckworth vs. putative set-aside “disabled vet”: “I’m sorry that twisting your ankle in [prep] school has now come back to hurt you in such a painful way” [Daily Caller]
- From the rumor mill: Senate Foreign Relations Committee may hold hearings next month on ratification of Convention on the Rights of Persons with Disabilities, much criticized in this space; here’s a pro-ratification Facebook group and a John Kerry op-ed to the same effect.
- From historic Julian, Calif. to Philadelphia, we all pay price of ADA’s coercive utopianism [Mario Loyola and Richard Epstein, The American Interest]
- Misguided USDA regs are shuttering much-admired (and safe) artisanal Denver salumeria [Baylen Linnekin]
- “If you’re a woman and you’ve had an average of more than one drink a day, the [CDC] considers you a ‘heavy drinker.'” [Nicole Ciandella, CEI]
- Admitting failure of idea, Denmark prepares to repeal pioneering “fat tax” [BBC] Katherine Pratt, “A Critique of Anti-Obesity Soda Taxes and Food Taxes Today in New Zealand” [TaxProf]
- Less cooking from scratch, more empty calories because of new school lunch regs? [Lunch Tray]
- Once we accept premise that our weight is government’s business, NYC soda ban will be just the start [Jacob Sullum] Does it go beyond legal authority of Gotham board of health? [same] Now it’s the D.C. council catching the ban-big-soft-drinks bug [WTOP]
- Federal prosecutors’ ADA campaign vs. restaurants: not just NYC, Twin Cities too [Bagenstos, earlier]
- Why is research and journalism on the public health aspects of nutrition so bad? [Linnekin] Speaking of which… [same] No one’s appointed Mark Bittman national food commissar, and aren’t we glad for that [Tyler Cowen] More on that [David Oliver, beginning a new series of posts on anti-food litigation]
- Lawprof’s classic argument: you thought I was capable of going on a workplace rampage with a gun, and though that isn’t true, it means you perceived me as mentally disabled so when you fired me you broke the ADA [Above the Law, ABA Journal, NLJ]
- “Fragrance-induced disabilities”: “The most frequent MCS [Multiple Chemical Sensitivity] accommodation involves implementing a fragrance-free workplace [or workzone] policy” [Katie Carder McCoy, Washington Workplace Law, earlier here, etc.]
- Netflix seeks permission to appeal order in captioning accommodation case [NLJ, Social Media Law via Disabilities Law, earlier here, here and here]
- EEOC presses harder on ADA coverage for obesity [PoL, earlier here, here, here, etc.]
- Disability groups seek class action: “ADA Suit Claims Wal-Mart Checkout Terminals Are Too High for Wheelchair Users” [ABA Journal, Recorder]
- Crunch postponed until after election: “Despite delays, chair lifts coming to public pools” [NPR Morning Edition, earlier here, here, here, etc.] Punished for advocacy: disabled groups organize boycotts of “hotels whose leaders, they say, have participated in efforts to delay regulations.” [USA Today]
- Disabled student sues St. Louis U. med school over failure to provide more time on tests [St. L. P-D]
- Arbitrator: felonious Montgomery County, Maryland cops should keep disability pay [Examiner] “Cop who took naked photos of rape victim can keep pension” [NY Post] Cop who pepper-sprayed UC Davis protesters is still on job, and maybe that’s how they’d have it [Radley Balko]
- “Billions in retroactive liability” in pharma detailer wage/hour action before SCOTUS [Marcia Coyle, NLJ] And USA Today chose a faulty “worker discontent” theme on wage/hour case, since as class actions these suits are lawyer-driven;
- Australia: “Worker injured during sex gets compensation payout” [News.com.au]
- “Courts are finally starting to apply ADAAA—and it ain’t pretty” [Jon Hyman] ADA: “Judge Rules In Favor of Fired Employee With Bipolar Disorder” [ABC]
- NLRB goes after Hyatt on employee handbook language [Gary Shapiro, Examiner] Union claims Indiana right-to-work law violates Thirteenth Amendment ban on slavery [James Sherk, NRO]
- EEOC: sex discrimination law bars bias against transgender employees [AP, Hyman] “EEOC Obtains Substantial Settlement in Obesity Discrimination Suit” [Disabilities Law]
- Law journal prediction: adherents of racism will claim Title VII protection [Lawrence D. Rosenthal, Temple L. Rev. via Workplace Prof]