Back in July of 2020, I blogged on the case of Colton v. Fehrer Automotive, North America, LLC., here. That case explored the question of whether a 4’6” tall person has a disability under the ADA. The District Court threw the case out because the plaintiff did not allege any underlying reason for her being short and therefore, she did not have a disability under the ADA because she did not have a physical impairment. She appealed to the 11th Circuit and the 11th Circuit in a per curiam unpublished decision-decided July 21, 2021-, affirms. Since the facts were discussed in my prior blog entry, here, there isn’t any need for that to be a separate category in this blog entry. So, the categories for this blog entry are going to be: court’s reasoning no physical impairment; court’s reasoning no retaliation; and thoughts/takeaways. Since the blog entry is pretty short, you will probably want to read the whole thing.

 

I

Court’s Reasoning No Physical Impairment

 

  1. 29 C.F.R. §1630.2(h)(1) defines an impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.
  2. Impairment does not include the 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’x §1630.2(h).
  3. Plaintiff pled no facts suggesting that her height was due to a physiological disorder or condition.
  4. The court cited to two cases (one from the Eighth Circuit and one from the Sixth Circuit), holding that claims of obesity require an underlying physiological disorder or condition.
  5. The United States Supreme Court in Sutton v. United Airlines said that when reviewing an ADA claim employers are free to decide that physical characteristics or medical conditions not rising to the level of an impairment-such as one’s height, build, or singing voice-are preferable to others. While this statement is dicta, Supreme Court dicta gets treated separately from regular dicta. Further, this dicta also gets different treatment because it aligns with the ADA’s text and the EEOC’s regulations and interpretive guidance. So, claiming to be short without alleging any underlying physiological disorder is simply not enough to allege a disability under the ADA.
  6. The regarded as prong claim also fails because the plaintiff would have to show that the employer perceived her as having an ADA qualifying disability even if there was no factual basis for that perception. So, plaintiff would have to show that the employer regarded her as having a physiological disorder even if she did not have that physiological disorder. Nothing in the complaint or the attached exhibits even hint that the employer considered her height to be the result of a physiological disorder or condition.

 

II

Court’s Reasoning No Retaliation

 

  1. Plaintiff needed to allege facts suggesting that she has a good faith, objective believe that the employer’s conduct was unlawful.
  2. Plaintiff’s subjective thought that her employer was discriminating against a person with a disability by failing to accommodate her short height was simply not a reasonable viewpoint considering the given existing law.
  3. Sutton and the EEOC’s interpretive guidance clearly state that height is only a physical characteristic and not a disability without more.

 

III

Thoughts/Takeaways

 

  1. It is easy for people to think that Sutton no longer matters after the amendments to the ADA. Nothing could be further from the truth. While Sutton was overruled by the amendments with respect to mitigating measures, the amendments did not overrule how you go about figuring out whether working is a major life activity. The amendments also did not overrule the statement referenced in this decision about how physical characteristics as opposed to physical impairments, are not disabilities absent more.
  2. The line of cases saying that certain physical conditions require something more than the physical condition until now has basically focused on obesity. As a result of this case, it is fair game for employers to argue that a physical characteristic is involved and not a physical impairment and therefore, the burden is on the plaintiff to show that there is an underlying physiological disorder is behind the physical characteristic. After all, Sutton uses the term “such as,” before listing the physical characteristics. Therefore, it is possible that other physical characteristics might be subject to the underlying physiological disorder requirement beyond those specifically listed in Sutton.
  3. It doesn’t matter whether plaintiff believes on a subjective level that he or she has a disability in need of a reasonable accommodation that they made a reasonable accommodation request for if the law is clear that a physical characteristic requiring an underlying condition is involved. While I understand such an approach, as a practical matter, many employees are not going to realize the difference between a physical characteristic and a physical impairment, especially where the physical characteristic is on the border of normal range.
  4. What is normal range becomes an important question.
  5. For those who have dwarfism, this case does not present any worries as such individuals can show an underlying physiological disorder.
  6. The EEOC guidance on physical characteristics is taken directly from Sutton.
  7. While the amendments say the regarded as prong does not require perception of a substantial limitation on a major life activity, it still does require perception of a physical or mental impairment.
  8. A lesson here is that whenever you are drafting a complaint involving disability discrimination, be sure to allege IN DETAIL the physical impairment and how it substantially limits a major life activity. Be sure to go beyond physical characteristics if you can, especially if it isn’t obvious that a physical impairment and not a physical characteristic is involved.