Is obesity a disability under the new ADA? Probably.

Is obesity a "disability" entitled to protection under the Americans with Disabilities Act?

As our nation allegedly gets more zaftig this question could take on enormous significance.

(By the way, did you know that Marilyn Monroe really was not a size 14 but smaller than a size 2? It's a fact! I am so disappointed. I loved the idea of a size-14 sex symbol.)

"Obesity" is medically defined as having a body mass index of 30 or more. (Exceptions may apply if you're really buff because all those muscles will make your body more dense.) "Morbid obesity" means you are 50-100 percent above your ideal body weight, or 100 pounds above your ideal weight, or have a BMI of 39 or more.

A BMI of 25 to 29.9 is merely "overweight." (A BMI of 18.5-24.9 is "normal," and anything below 18.5 is "underweight," which is a problem don't see much of in this country and so we will save for another day.)

Let's start at the extremes and work our way toward the mushy (flabby?) middle. If you're obese because you have a thyroid condition or some other medical problem, then, yes, your obesity is a protected ADA disability. This was true even under the old ADA, although you could have had a tough time proving you were "substantially limited in a major life activity" under the old standard. Now, under the ADA Amendments Act, it's virtually a slam dunk.

At the other extreme, say you're merely "overweight." Not a disability, right? Right. Start taking the stairs instead of the elevator, ya bum.

OK, those easy ones ended way too quickly. Now, what if (like many Americans) your BMI is over 30 because you have a sedentary job and you like Big Gulps, and if you would just eat Swiss chard three times a day and start showing your face at Zumba class once in a while you would be down to "normal" before you could say Jack Robinson?

According to a recent decision from the Montana Supreme Court, you may be disabled in these circumstances, as well. The court decided that obesity, even when it did not result from a physiological disorder, was an "impairment" within the meaning of the state human rights statute, which is modeled after the pre-amendment ADA. Under the Montana law, if an individual has an "impairment" that "substantially limits" one or more "major life activities," then the person has a "disability."

The Montana decision is an interesting read. The majority applied ADAAA standards to a state statute that was modeled on the unamended ADA and then applied it to an employment decision that was made before the ADAAA took effect. Whatevs! It's the state Supreme Court, so Montanans are stuck with it.

But I do agree with the majority that obesity is probably an "impairment" under ADAAA standards, even if it's a result of nothing more than eating too much and not exercising enough. Some federal circuits had held under the old ADA that obesity had to result from a physiological disorder to be protected, but those decisions are in question now. In fact, I submit that obesity is usually going to be an "impairment" and also a "disability" under the ADAAA, regardless of its cause. Here's why:

1) Unless you're Arnold Schwarzenegger, who appears to be fit but probably has a BMI of, like, 150 or something, if your BMI is 30 or over you are probably somewhat limited in what you can do compared with the general population. The definition of "substantially limited" under the new ADA is so lax that being "somewhat limited" is probably good enough to mean you are legally "substantially limited." (That is right -- the law no longer means what it says, like "serious health condition" under the Family and Medical Leave Act.)

2) Some people with BMIs over 30 have BMIs that are waaaay over 30, and not because they're "buff" like Ahnold. The higher you go, the more likely you are to have other health problems associated with obesity -- many of which are ADA disabilities in their own right -- problems like diabetes, heart disease, sleep apnea, high blood pressure, impaired mobility, etc. I think the obesity in itself may be a disability, but even if it isn't, all of these related health problems are.

3) Many people who are obese are that way because of medications they have to take for -- you guessed it -- disabilities. For example . . . you have a disability (let's say an anxiety disorder) that requires you to take prescription meds that have weight gain as a side effect, and which cause your BMI to go over 30. Now your anxiety disorder is under control, which is great but doesn't matter because the disability analysis under the ADAAA cannot take into account the good effects of "mitigating measures." Meanwhile, your meds have caused you to become obese, which is a bummer, and the bad effects of "mitigating measures" must be taken into account in determining whether you have an ADAAA disability. Any way you look at this situation, you have a disability.

All of which raises some interesting questions:

*Suppose you are obese for non-physiological reasons, you go on a diet and start exercising, and you lose 50 pounds, returning to "normal" weight. Does that make you a person with a "history" of a disability?

*Suppose you are just "overweight" or mildly obese, but your boss is Mayor Bloomberg, so he erroneously thinks you are severely limited as to what you can do. Does that make you a person who is "regarded as" having a disability?

*If obesity that doesn't result from a physiological disorder is a "disability," does that mean the entire younger generation is going to be entitled to reasonable accommodations when they get old enough to work?

Isn't the ADAAA fun? I just love it.

DISCLAIMER-I am a fan of every super-sized celebrity depicted in this post, as well as many others who are not depicted (Orson Welles, William Howard Taft, Tor Johnson, Santa Claus (you don't need a link for him, do you?), Junior Samples, Fred Flintstone . . .). Although Chris Farley died prematurely, it appears to have been from a drug overdose, not a weight-related condition. Aretha Franklin is still going strong at age 70 (and has lost a lot of weight). Jackie Gleason lived to be 71 and died of cancer, not from weight-related illnesses. And, by the way, Mama Cass didn't die from choking on a ham sandwich, either. (PS-I like Marilyn Monroe, too, even if she was only a size 2.)

Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.

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