discrimination disabilities
Under ADA, are size or weight disabilities?
<p>Within the context of the US ADA, are a man or woman's size or weight considered disabilities?  What is the threshold?</p>

<p>For example, could a 7' 2" male weighing 300 pounds be considered disabled?  In the business context, does an employer or a business have to accommodate a man so sized?  For example, with adequate workstation for their job.  Or if traveling on public transportation, with seating which accommodates their stature, leg length, etc.?</p>

<p>Could a 450#, 5' 10" woman be considered disabled, and what is the range of accommodations that might be required in a business, employer or even perhaps academic environment be?</p>

<p>Could a 4', 88# woman be considered disabled and would their employer or a business providing them services be expected to make reasonable accommodations? </p>

<p>Under 42 USC section 12102 disabilityis defiend as:</p>
<blockquote>
<p>(1) Disability. The term &quot;disability&quot; means, with respect to an individual<br />
(1) (A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;<br />
(1) (B) a record of such an impairment; or<br />
(1) (C) being regarded as having such an impairment (as described in paragraph (3)).</p>
</blockquote>
<p>This is qualified by section 12102(3)(A) which reads:</p>
<blockquote>
<p>(3) Regarded as having such an impairment. For purposes of paragraph (1)(C):<br />
(3)(A) An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life activity.</p>
</blockquote>
<p>Subsection (4)(A) provides that:</p>
<blockquote>
<p>(A) The definition of disability in this chapter shall be construed in favor of broad coverage
of individuals under this chapter, to the maximum extent permitted by the terms of this
chapter.</p>
</blockquote>
<p>The ADA Amendments Act of 2008, (Pub. L. 110-325), listed among its official purposes in section 2:</p>
<blockquote>
<p>(b) (3) to reject the Supreme Court’s reasoning in <em>Sutton v. United Air Lines</em>, Inc., 527 U.S. 471
(1999) with regard to coverage under the third prong of the definition of disability and to
reinstate the reasoning of the Supreme Court in <em>School Board of Nassau County v. Arline</em>,
480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of
handicap under the Rehabilitation Act of 1973;</p>
<p>(b) (4) to reject the standards enunciated by the Supreme Court in <em>Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams</em>, 534 U.S. 184 (2002), that the terms “substantially” and “major” in
the definition of disability under the ADA “need to be interpreted strictly to create a demanding
standard for qualifying as disabled,” and that to be substantially limited in performing a major
life activity under the ADA “an individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of central importance to most people’s
daily lives”;</p>
<p>(b) (5) to convey congressional intent that the standard created by the Supreme Court in the case
of <em>Toyota Motor Manufacturing, Kentucky, Inc. v. Williams</em>, 534 U.S. 184 (2002) for
“substantially limits”, and applied by lower courts in numerous decisions, has created an
inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey
that it is the intent of Congress that the primary object of attention in cases brought under the
ADA should be whether entities covered under the ADA have complied with their obligations,
and to convey that the question of whether an individual’s impairment is a disability under the
ADA should not demand extensive analysis;</p>
</blockquote>
<p>Under these provisions the definition of a disability is to be 'broad&quot; and evidence that it does in fact limit major life activities, or has been regarded as a disability, or has been the occasion of discrimination, will normally be enough to have the condition treated as a disability under the ADA.</p>
<p>In an article <a href="https://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/posts/the-long-and-short-of-height-discrimination-under-the-ada" rel="nofollow noreferrer">&quot;The Long and Short of Height Discrimination under the ADA &quot;</a> from Lexis/Nexis the authors mention the case of Barbara Joy McElmurry</p>
<blockquote>
<p>Barbara Joy McElmurry, 4'10&quot; tall, worked for the Arizona Department of Agriculture as a lab technician fighting the Asian citrus psyllid. Her job consisted of screening traps set by her co-workers in the field. Over time, tension developed between McElmurry and her supervisor, Mary Garman. After McElmurry threatened to file harassment charges against Garman, the supervisor accused her of sabotaging lab results and demoted her to field work. McElmurry demurred, protesting that at 4'10&quot; she was too short to drive the vehicles necessary to do field work. Garman, however, forced the demotion. Ultimately, McElmurry was injured in the field, and Garman terminated her.</p>
<p>...</p>
<p>The district court refused to dismiss the disability discrimination claim, concluding that McElmurry had stated enough in her complaint for her disability discrimination claim to proceed to discovery:</p>
<blockquote>
<p>McElmurry, however, has alleged that her height is outside the normal range. She stands around 4'10&quot;. The Department has claimed that height can never be a disability…. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that &quot;short stature&quot; could, in some contexts, &quot;substantially limit[ ] one or more of the major life activities of an individual.&quot;</p>
</blockquote>
</blockquote>
<p>The article goes on to say:</p>
<blockquote>
<p>Typically, height is not a disability protected by the ADA. As this case illustrates, however, the ADA (as amended in 2009) is now sufficiently broad such that an employee can plausibly argue that a host of normal physical characteristics can become protected disabilities if they fall &quot;outside the normal range.&quot;</p>
</blockquote>
<p>In <a href="https://scholarship.law.wm.edu/studentpubs/3" rel="nofollow noreferrer"><em>Height Discrimination in Employment</em></a> by Isaac B. Rosenberg (2009). published by W&amp;M Law Student Publications, [footnotes shown here in {braces} when not omitted] the author writes:</p>
<blockquote>
<p>[<em>Pages 927-8</em>] Height-based discrimination claims may also prove viable under the Americans with Disabilities Act of 1990 (“ADA”).159 The ADA generally prohibits discrimination “because of” one’s disability. Just like Title VII plaintiffs, an
ADA plaintiff must first make out a <em>prima facie</em> case under either a disparate treatment theory or a disparate impact theory.{See <em>Raytheon Co. v. Hernandez</em>, 540 U.S. 44, 49 n.3 (2003) (observing that the courts of appeals have applied the <em>McDonnell Douglas</em> framework in ADA cases)} Under either theory, however, the first and typically fatal hurdle has been establishing one’s “disability.” {<em>Sullivan</em>, supra note 146, at 942 &amp; n.123 (discussing a 2003 study that found only 2 percent of ADA cases were won by employee plaintiffs and that barely half made it to consideration on their merits); see generally ADA Amendments Act of 2008, Pub. L. No. 110-325 §§ 2(a), (b), 122 Stat. 3553, 3554 (2008) [hereinafter “ADAAA”] (expressing
dismay that Supreme Court decisions construed the ADA too narrowly thereby eliminating protection for many individuals whom Congress intended to protect).}
}</p>
<p>The ADA defines disability, in part, as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual” or “being regarded as having such an impairment.”</p>
<p>This section examines how short stature fits (or does not fit) within each of these definitions. The first part looks at height-based claims under an “actual impairment” theory. Although most courts have wholly rejected “actual impairment” claims premised on short stature, a fresh look at the regulatory scheme in light of the ADA Amendments Act of
2008 (“ADAAA”) suggests that such claims may have merit after all. The second part considers height-based claims under the “regarded as” prong. Although
“regarded as” claims premised on height have largely failed, such claims may prove increasingly viable after the enactment of the ADAAA.</p>
<p>...</p>
<p>The EEOC has further clarified that “‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.”{29 C.F.R. pt. 1630, App. § 1630.2(h) (2008)} A plain reading of this language would suggest that the
definition of “physical impairment” includes either (1) a normal deviation in height that is the product of a physiological disorder, or (2) an extreme deviation in height that may or may not be caused by a physiological disorder.{See EEOC <em>Interpretive Manual</em>, supra note 91, § 902.2(c)(5) (“[N]ormal
deviations in height, weight, or strength that are not the result of a physiological disorder are not impairments. . . . At extremes, however, such deviations may constitute impairments.”}</p>
<p>...</p>
<p>[<em>Page 930</em>] In <em>Mehr v. Starwood Hotels &amp; Resorts Worldwide, Inc.</em>, {81 72 F. App’x. 276 (6th Cir. 2003).} for example, the 4’10” female plaintiff filed EEOC charges alleging, <em>inter alia</em>, discrimination for “being short.” She later recharacterized her action as an ADA claim, asserting short stature as an impairment. The Sixth Circuit denied her claim as meritless because it interpreted the regulations as excluding from the definition of “impairment” all “physical characteristics that are ‘not the result of a physiological disorder.’”</p>
<p>...</p>
<p>... Despite the regulation’s plain language, and
notwithstanding the EEOC’s recognition that “[a]t extremes . . . deviations [in height] may constitute impairments,”190{<em>EEOC Interpretive Manual</em>, supra note 91, § 902.2(c)(5).} federal courts have not considered this [normal limits] theory in deciding height-based claims under the ADA.</p>
</blockquote>
<p>The article goes on to discuss how such claims may be more successful under the ADA's 2008 amendments, but does not list any cases in which such claims have been sustained. The amendments were very recent when this article was published, and few if any such cases had yet been brought under the amended ADA.</p>
