(The ADA, for those who don’t know, is the “Americans With Disabilities Act.”)
From the Disability Law Blog (thanks to Blue for emailing me the link!):
This morning, the Sixth Circuit issued its decision in EEOC v. Watkins Motor Lines, Inc. The EEOC had brought suit on behalf of a worker who claimed he had been fired because of his morbid obesity (he weighed up to 450 pounds). The Sixth Circuit held that the worker did not have a “disability” for purposes of the ADA, because he did not show that his obesity had a “physiological cause” and therefore qualified as a “physiological disorder.” Although the EEOC had shown that the worker’s weight was more than 100% greater than the norm (sufficient for a diagnosis of morbid obesity under the traditional definition), they failed to show that the weight was “the result of a physiological condition.”
This decision seems to me quite confused, though it’s a confusing area so I cut the court some slack. What does it mean to say that morbid obesity has a “physiological cause”? All of our behavior has some physiological cause, if only from hormones and brain activity. And there’s lots of reason to believe that brain proteins that alter appetite and activity levels, not to mention genetics, are substantial contributors to morbid obesity. More broadly, every fact about our body is by definition physiological. And morbid obesity, being a condition of one’s physiology, is by definition a “physiological condition.”
So the problem can’t be that the worker’s morbid obesity had no “physiological cause” or was not a “physiological condition.” The problem has to be that he had no physiological “disorder.” But what does that mean? The theory of “disorder” can’t be a condition that has some identifiable organic etiology, or most “syndrome”-type conditions would be ruled out. We often just don’t know what the etiology of a particular condition is, even when doctors diagnose it, recognize that it calls for treatment, and treat it. For it to make any sense, I think “impairment” has to be defined medically — according to what are the conditions that are the basis for recognized medical (and psychological, since the statute includes both physical and mental impairments) diagnoses. On that score, morbid obesity that meets clinical criteria should always be an “impairment” — which doesn’t mean it will always be a “disability,” as the plaintiff will still have to show actual or perceived substantial limitation of a major life activity.
The Court’s decision can be read here (pdf link). I think they made the wrong decision, but maybe making the wrong decision is the right thing to do at this time. Basically, they argued that for an obese person to qualify for ADA protection, the obesity must have a “physiological cause.” But it’s a little tricky to support that interpretation based on the text of the ADA itself. The relevant section of the ADA reads:
Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
So the court is in the position of arguing that obesity has to be shown to be a physiological “disorder” and not a “condition” to qualify for ADA protection – even though the ADA’s own definition clearly includes physiological conditions. To see how finely they had to chop their arguments, consider this: Judge Gibbons, in her concurrence, concedes that a “literal” reading does not support the Court’s position, but argues that a missing comma which existed in an earlier piece of legislation the ADA took its language from should be the controlling authority.
I think that fat acceptance and disabled rights, while not identical, have significant areas of overlap – both literally, in the bodies of people who are both disabled and fat, and philosophically. In the end, both movements are about the idea that there is no one correct form that all human beings are obliged to fit into, or to work to become; and that all human beings, regardless of how their bodies differ from the average, are deserving of equal dignity and equal rights.
Perhaps the biggest difference between anti-disabled bigotry and anti-fat bigotry is that disabled people are not seen as responsible for their “condition,” whereas fat people are by and large blamed for being fat. I think this underlying prejudice is the unstated logic driving the Sixth Circuit’s decision. While obese people who can prove that their obesity is not their fault may be covered by the ADA, obese people in general are to blame, and thus must not be covered by the ADA.
So why did I say “but maybe making the wrong decision is the right thing to do at this time”? Because I think that when Congress passed the ADA, they probably didn’t intend for it to apply to most “morbidly obese” people, because the Representatives and Senators probably share the idea that most obese people have only themselves to blame and can reasonably be discriminated against by employers. I worry that if the Courts found that the ADA covered all “morbidly obese” people, the result would be a backlash against the ADA and the Courts, at a time when the ADA itself is still very controversial and not totally secure. Probably more work needs to be done to change the “hearts and minds” of the American population about obesity; court victories based on the ADA might not be sustainable until the fat acceptance movement has achieved at least a small degree of mainstream acceptance.
[Crossposted at Creative Destruction. If your comments aren’t being approved here, try there.].
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I agree that fat people need legal protection from discrimination, but I’m not sure that classifying fatness as a disability would be the best way to achieve that. It’s bad enough that most people firmly believe that being fat is unhealthy; just imagine how attitudes would be if there was encouragement to believe that it’s not only bad for you to have a BMI over a certain magic number, but actually disabling.
Also, I do see a lot of examples of disabled people getting blamed for their condition. Especially if they have an “invisible” disability or a primarily mental condition. Of course, some disabled people escape from this blame, for example, young, pretty women who were viciously stabbed by random strangers and are disabled as a result of their tragic injuries. I think that’s analogous to the “fat people are baaaaaaad and lazy and irresponsible… well, except for the ones who have some underlying hormonal condition that makes it physiologically impossible for them to stay desirably thin, and the ones who are young, female and really really attractive”.
Or, if disabled people are not blamed for causing their condition, they are blamed for the way they deal with it. For not enthusing about the latest quack miracle cure, or for using workrounds that outsiders don’t connect with the disability and see as just being annoying for the sake of it. For being lazy and living on welfare when they’re obviously healthy enough to out with their mates and have a good time, so why can’t they do a normal job like the rest of us? For not being sufficiently “nice” to people who are trying to “help” them.
Of course, comparing oppressions is not helpful, and as you say, there are plenty of people who are both fat and disabled. But I do think there are real parallels here.
That comma really IS pretty important, you know. The concurrence’s tracking of the legislative history was quite apposite in this case. Why do you see it as problematic?
I think you’re right that the American populace is actively blaming fat people for their laziness and their greed. I think had the court decided differently there would have been a backlash. But there’s going to be backlash anyway. How dare those uppity fat people demand human rights?
All the medical research on weight for a decade has demonstrated various that the various physiological mechanisms by which people become obese have nothing to do with the individual’s desire to gain weight. And of course, it’s ridiculous: who would set out to weigh 450 lbs? It’s as bizarre a notion as that people would choose to be gay with all the danger and prejudice that entails.
I think public opinion will change, and that it will take time, but there’s never going to be a time without a backlash. There are people out there now still arguing whether women should vote.
Well, I agree with the first comment, so I won’t repeat. The ADA is a well-intentioned statute that is mind numbingly difficult to interpret. It was clearly intended to make it easier for, say, blind and deaf people to find accommodations at work, but the majority of suits are brought by those who, for lack of a better way to put it, are injured rather than disabled as we might commonly understand it — the condition that prompts the largest number of suits is back injury. In other words, in some ways, the ADA was at least initially used as a backdoor OSHA regulation to force manufacturing employers to adopt less physically stressful practices. It has also been used as a means of rewriting insurance policies, which has also by and large failed. But these kinds of efforts have undermined the statute in the eyes of some judges in the same way that trying to turn every securities case into a RICO case has undermined RICO. Valid cases are thrown out because judges are predisposed to see ADA claimants as disgruntled employees.
This is not the first time that obesity has prompted an ADA suit. I think the issue with the “physiological cause” language is the idea tht the guy could lose weight if he wanted to — in other words, being fat isn’t the same thing as being deaf. Obviously that’s debatable, which itself is probably the understatement of the year. Still, to say that someone is disabled — or perceived to be disabled (which is another ADA twist) — is perhaps not something that ultimately favors acceptance of the obese as a group. Instead, it could further marginalize fat as an abnormal condition when it clearly is not.
Basically, the ADA can be a tough statute for employers and employees. I once worked on a case in which an employee who had developed acute vertigo tried to force his employer to accommodate him when the main duty of his job was to climb radio towers to make repairs. It’s just really hard to articulate a general principle of accommodation that is fair to all sides.
But on the positive side, the ADA has led to a lot of improvements in the way of public accommodations in making buildings and communication more accessible.
Definitely concur with the reality of the disabled getting blamed at. (I look “normal” most of the time, but have sometimes-obvious neurological disabilities, with symptoms that flare up whenever they damn well feel like it. This means, to those who wanna be critical, that I am, of course, faking the whole thing. Including the falls and scintillating scotoma. Anyway…) In addition to being young, female, & conventionally attractive, it also helps if the “blameless” person is white, a child of wealthy parents, and someone with no ambition to attend school, hold down a job, or leave the house without being attended by privately-funded attendants. Everybody else is up for grabs.
A recommended read is John Callahan’s “Don’t Worry. He won’t get far on foot,” especially for the part where social services gets on his case for being “too active” and therefore going through “too many” urine bags…
Oh, and I forgot the delightful: your disability must be karmic payment for something terrible you did in a previous life. Yay. Do people say that to fat people, or is it too easy to blame them for their bad habits in this life?
Thanks for your story, kbrigan. It is depressingly familiar, but at some level it’s good to have these kinds of stories out there.
Maybe I’m not seeing the forest for the trees, but isn’t the important ADA issue that the accommadations which would be neccessary for the plaintiff weren’t reasonable? He needed to be ambulatory and able to lift moderate weight–he was neither.
Sebastian,
Have you read the decision?
The case was originally dismissed by summary judgement on the basis that no case could be made since obesity was not covered by the ADA. This dismissal by summary judgement was affirmed by the 6th circuit. At no point did any court consider the question of whether the accomodations that might have been required would have been reasonable. The case never reached a point where such a question (were the required accomodations reasonable) would properly be considered.
So I am not sure what trees you are even looking at. : )
I don’t believe obesity should be in itself seen as a disability. If there is a psychological condition that is creating the obesity or a physiological disease or condition creating the obesity then that specific problem should be addressed and not the obesity.
Maybe a disability should be identified as a physical or mental condition which has no reasonable remedy. Meaning things like loss of limb, blindness, paralyzation, neurological and muscular disorders and diseases, physical deformaties.
I actually think it might be a diservice for disabled people to try to put the two in the same category socially or under law. A person who is physically obese, more often than not, has the option of taking minimal steps to losing the weight at little financial cost, while a person born without or whome has lost limbs cannot buy a book and use diet, exercise, any psychiatry to grow those missing limbs back and cannot receive a man made remedy without severe financial resources.
A person who is physically obese, more often than not, has the option of taking minimal steps to losing the weight at little financial cost…
Are you serious? Minimal steps?
Yes I am. Obesity or Fatness, barring a mental disorder or physical condition(which then the obesity would be a result of a disability) that is specifically causing it, in most cases, can be remedied by lifestyle changes (that may or may not be hard to change depending on the individual).
I doubt that of a person who has a physical deformaty or has a conditions such as blindness, deafness or MS, etc, can do that.
Z, way to demonstrate Amp’s point while completely missing it! Fat people are at fault for being fat, for willfully refusing “the option of taking minimal steps to losing the weight at little financial cost“. But disabled people can’t help being disabled… It’s amazing that you would make that kind of comment on this post on this blog.
Eating a healthy diet and doing exercise doesn’t make most people lose weight, certainly not significant amounts of weight. And more severe weight loss strategies such as starvation diets or major surgery also don’t work in the long term, and I doubt you would call that kind of thing “minimal” cost anyway. How people get fat in the first place is not well understood; some of it may be linked to diet and lifestyle but the connection is in no way clear. But once someone is fat, it is extremely difficult for them to become thin again. You’ve probably seen propaganda to the contrary, but follow the money: it’s a lot easier to make fortunes out of selling diet and exercise plans, than it is to get thinner by following them.
The other question is, even if it were easy for a fat person to lose weight, why should they? If you’re going to continue to follow the script you’ve followed so far, you’re probably going to answer “Because being fat is unhealthy!” Even if being average-sized is healthier than being fat, which is by no means universally accepted, it doesn’t follow that losing weight will make a fat person healthier.
Look, Amp has a whole category of posts about just this issue! This site is the last place where mindlessly repeating diet industry propaganda is going to get you anywhere. And doing so in comments to posts about why that propaganda is wrong is even less productive.
I never said whether fat is unhealthy or healthy, for some people it is, for some people it isn’t. I can’t make that call. don’t presume to know what I think or will say. My sister is FAT and is healthy, my mother is FAT and her medical problems have been caused by her weight. She has no mental of physical disorder that is causing her obesity. If anything if she continues to gain weight she will then become disabled as a result of it. so what does she do, commits to a life style change and is slowly losing weight. By hollywood standards I’m fat , but I’m healthy. Oprah is “fat”, but healthy.
Thinness doesn’t equal health, which to anyone with common sense should be obvious.
I’ve read all through Amps post about the issue. Its not the same. If there is an option for a physically(as described) or mentally disabled purpose to even have the OPTION of remedying their situation through, MIMINUM, a lifestyle change, let me know. I’ll be sure to tell our close friend who was born with his foot is attached to his knee. Or my father who is mentally disabled(“daddy if you take vitamens like Tom Cruise says you’d be all better and not crazy anymore)”. Oh shoot, and then there is my grandmother who died a long painful death from MS. “nanny if you just cut your portions down in half and maybe walk a little bit, you’d be able to lift your arms again. Oh wait, you can’t walk.”
Bean,
Okay to be fair. Explain to me what options a person with disabling Spinal Bifida can try and do that doesn’t involve surgery or extensive therapies that can minimize or totally remedy their condition, if they wished to do so.
Now tell me what options a “fat” or “obese” person can try and do that does not involve surgery or extensive therapies that can minimize or totally remedy their condition of “fatness”, if they wished to do so.
Ex. my mother is fat, she does not want to be fat, her fatness is creating physical and biochemical negatives. So she is making lifestyle changes to lose weight. This including relieving herself of a man that was killing her self esteem(with our help) and causing her to eat to relieve her depression, a job change, a change of eating habits, and more activity, and the occassional shrink meeting.
A friend of mine has no option but to continue to have painful surgeries to keep his knee from rejecting his foot from it, and wear a prosthesis. There is nothing he can do that will grow his calf back.
Z, we seem to be talking at cross-purposes here. You claimed that fat people are different from disabled people, because fat people can “easily” lose weight but disabled people can’t make lifestyle changes become able-bodied. Bean and I argued with the first part: in fact, it is not at all easy for fat people to lose weight. You now seem to be defending the second part, which I never had a problem with: that disabled people can’t easily cure themselves. Of course they can’t; that’s part of the definition of disability.
I am glad you understand that being fat is not necessarily unhealthy. But if you appreciate this, my question remains: even supposing it were possible for fat people to lose significant amounts of weight, why on earth should they? If your only answer is “because they get discriminated against” then it seems obvious that the problem is with the people doing the discriminating, not the fat people.
1. I never said “Easily” I said “minimal”. The minimal change a fat person who wants to lose weight can do is make a change to their eating habits, barring any physical or biochemical problems, the minimal option a disabled person can do to if they decide they don’t want to be disabled anymore is maybe have major surgery, permanent medication, or by a prosthesis and that depends on exactly what the disablity is.
my answer is, if a person is fat (they don’t feel they need to lose any weight or are happy with themselves as is) but they are fat enough that is it causing them not to be able operate within reasonable bounds as any other persons of the general populations (even other so called fat people)(does it affect previous job performance, will they occupy two seats to sit comfortably on a bus, plane, or train, is it not safe for the person to be on certain amusment rides, is it affecting them in venues or situations where there are weight limits?, etc..) then they can’t make a claim of discrimination or disability. If they are able and choose not to remedy their fatness but it is causing disabling effects on their bodies, which they have chosen not to attempt to prevent or reverse because they don’t want to lose weight, than personally I wouldn’t want any concessions made for them.
If a fat person (whether by natural body type, choice, or a physical cause) is able to perform at a reasonable level as other persons of the general populations but is otherwise not allowed the opportunity to do so based on someone elses opinion of their fatness, barring safety concerns, than it is discrimination. If a person who is fat because of a mental or physical disability, but is dicriminated against unreasonabley (safety concerns are the only legitimate reason I can think of at this point) based on another persons opinion of their fatness (“they are just lazy and greedy slobs”) than it is a claim of discrimination. Those people to me would fall under the catergory as someone disabled. While it is hard to lose weight, there are overweight people that have zero control over their weight due to mental and physical disabilities.
I personally don’t believe true obesity or what is known as morbid obesity is positively genetic. (meaning there are people that are just going to be fat, they are genetically disposed to such, but its not an unhealthy trait. Then there are some people that are genetically disposed to being obese because of an unhealthy genetic trait)
Also, I might add, fat to me is obese, and obese to me is the point where you are so fat it becomes biochemically and biophysically deteriorating.
I personally don’t want to get any larger, but as we say over my way, Be fat, happy and healthy.
Z,
Your position, that fat people just need to change their diet and they will become no longer fat (eventually), and you know this to be so because someone you know is working on doing so, is one that we have seen many many times here. While it is possible that your mother will lose a large amount of weight and manage to keep it off for the longer term (decades, not months or even a few years), unfortunately (both for her if her health is directly affected by her weight and for your argument), her chances of doing so, particularly if she is in the weight range where her weight has become an impairment, are not very good. As Amp points out, there are no diets (including in the sense of permanent changes in diet) that have been established to be effective at producing significant permanent weight loss. 95% of people who attempt to lose significant weight will fail to do so. And attempting to do so will, for many of the 95% and some of the successful 5%, will cause permanent physical harm.
Sailorman,
On the comma question, what definition of physiological condition are you (and the court) using where obesity is not a physiological condition? Note (as the court seems not to) that obesity doesn’t need to be caused by a physiological disorder or condition, it needs to be a physiological disorder or condition (or a cosmetic disfigurement, or a loss of limb).
In particular, what definition of physiological condition would cover a permanently damaged knee, but not obesity?
Relatedly, pregnancy or a broken leg are not covered by ADA, but I haven’t found the basis for this. Anyone have any idea?
Also, the physiological disorder or condition language is not from the ADA (public law 101-363). Where is it coming from?
Charles,
my argument is not that a diet is all fat people need to do.
My argument is that compared to a person who has a physical disability, and assuming that amp and fat activist don’t consider fatness in itself a disability, that AT MINIMUM a fat person can try change is their eating habits if they wish to remedy their fatness.
A person with a missing limb, paralyzation, a mental illness, deformaty, or other such disabilities CANNOT do that. Or maybe I’m wrong. But I’ve never heard of such a thing.
And diet isn’t a bad word, Diet is that way one eats, period. I think when people see the word diet they think Hollywood fad diets or something ridiculous like the”popcorn diet”. These are what are called weight loss diets.
And if I understand you correctly Charles are you implying that a person whoes fatness is causing them physical deterioration will do more damage to themselves by trying to relieve the fatness to relieve the physical deterioration, the ones that have succeeded? even in some of amps comments in his Diet=Death post there are people that have attested to substanible weight loss in themselves or others. Are you saying that have permanently damaged themselves?
I would like to reread the study that those statistics come from. I have a suspicion that the reason there is such a failure rate is because of the ‘quick fix’ one-way approach or complex regiments that are impossible to stick with. I also suspect those 5 percent lost too much weight too quickly. Also I believe contributing to those statistics is the fact that fat but healthy isn’t accounted for. They are using things like BMI and Averages to determine what a healthy weight across the board for every peson. According to BMI I was overweight at prepregnancy weight(150 pounds). But I wore a size 7/8-9 and 23% body fat. Which is healthy.
And I’m also suspicious of even that because I refuse to believe that there are ZERO people who have lost significant amounts of weight through lifestyle changes and kept it off and they are all physically damaged because of it.
I think there has become a weight loss hysteria surrounding the fat hysteria. There is nothing wrong with losing weight or wanting to lose weight, or not wanting to be overweight. The wrong is how you do it and your expectations of yourself. To a person who fatness is creating physical negatives in their lives I would encourage them to make lifestyle changes that will assist in them losing weight.
I will never look like Paris Hilton, I don’t even have the physical composition to be her body size without starving myself and having surgery to reduce the width of my rib cage.
wow, I just realized there was another Z that has posted here *L*
It is important to remember what the ADA generally does. It forces people to make choices they would not oridinarily make absent legislation. From an employer’s perspective, given two otherwise identical people to hire/keep employed, it will be preferable to hire/keep the one who does NOT require any accomodations.
We think that making the employer act against what she perceives as her immediate self interest is OK, largely because of the net positive effect on society. And that makes overall economic sense; there IS a net positive effect on society–even if on a small level, a particular ___ business would be perfectly rational to prefer nondisabled folks as their only clientele/employees. But the overall benefits does not change the reality that the ADA is primarily a transfer of costs for the benefit of those covered by the ADA.
**IF** obesity was considered to be in people’s realistic control–**IF**, for example, it was relatively simple and easy to lose weight–then it would be much more difficult to argue that other people should be disadvantaged by obesity-related disability claims. Thus it would be much less appropriate to apply the ADA to obese people. Of course, as we all know it is extraordinarily difficult to lose weight; morbidly obese people almost never do so. So this is actually moot in practice. But it answers your question “what difference WOULD it make anyway?”
Charles:
This is explained in the opinion. You should read the full opinion, as there’s a lot more than in the Alas summary–for obvious reasons, as it’a many pages long.
My argument is that compared to a person who has a physical disability, and assuming that amp and fat activist don’t consider fatness in itself a disability, that AT MINIMUM a fat person can try change is their eating habits if they wish to remedy their fatness.
A person with a missing limb, paralyzation, a mental illness, deformaty, or other such disabilities CANNOT do that. Or maybe I’m wrong. But I’ve never heard of such a thing.
I really haven’t decided how I feel about obesity qualifying as a disability, but I don’t think the above comparison holds, primarily because disabilities vary too much to simply say that a remedy negates qualification. Diabetics take insulin to control their glucose levels — is that a remedy? Is taking Depakote a remedy for bipolarism? What if that particular drug doesn’t work for an individual? Isn’t a prosthetic arm a “remedy” in the same way that eyeglasses are for someone who is severely near-sighted? Do you consider near-sightedness a disability?
If dieting is “at minimum” what a fat person can do to address their weight (assuming they should address their weight), what if the dieting is completely ineffective? Or leads to weight gains instead of losses? When is it no longer a condition that requires a remedy by the individual? And is it a disability after that?
Physical variation cannot be easily categorized, particularly if you give up on the myth of normality.