That was the question before the Eleventh Circuit in Greenberg v. BellSouth Telecommunications Inc. The case involved a plaintiff who installed and maintained telephone service.

POLICY LIMITS WEIGHT

BellSouth policy provided that employees in jobs that required climbing could weigh no more than 275 pounds. Because the plaintiff’s weight exceeded this safe-load limit, his supervisor handpicked assignments to exclude jobs that required climbing.

After outsourcing employee-weight tracking, BellSouth began to apply the weight-limit policy uniformly and required the plaintiff to lose 50 pounds in 25 weeks. When he failed, BellSouth gave him 60 days to find — with the help of its human resources department — another job within the company. Again he failed, and more than four months later BellSouth fired him.

The plaintiff alleged employment discrimination under the Americans with Disabilities Act (ADA). At the close of discovery, the court granted BellSouth’s motion to throw out the suit because the facts were undisputed, and the company was entitled to judgment as a matter of law. The plaintiff appealed.

ESTABLISHING PRIMA FACIE CASE

The Eleventh Circuit found that, to establish a prima facie ADA discrimination case, plaintiffs must demonstrate that they:

1. Are disabled under the ADA,
2. Are qualified for their jobs, and
3. Have been subjected to unlawful discrimination because of their disabilities.

Under the first element, plaintiffs qualify if they:

1. Have a physical or mental impairment that substantially limits at least one major life activity,
2. Have a record of such impairment, or
3. Are being regarded as having such impairment.

The rules provide that obesity is rarely considered a disabling impairment. Still, the plaintiff showed that hypertension, hypothyroidism and a variety of endocrinology-affecting disorders prevented him from losing weight and that he suffered from diabetes.

SHOWING LIMIT ON MAJOR LIFE ACTIVITY

The question then was whether the plaintiff had an impairment that substantially limited a major life activity. People are “substantially limited” in a “major life activity” if they can’t care for themselves or “at a minimum” are “unable to work in a broad class of jobs.” But the plaintiff admitted that he bathed and dressed himself and performed household chores. And when asked if he had an interest in any position other than his previous position, he responded in the negative. He also presented no evidence showing a record of impairment or having been regarded as impaired.

So the Eleventh Circuit concluded that the plaintiff wasn’t disabled under the ADA and upheld the trial court’s ruling.

DON’T MAKE ASSUMPTIONS

The plaintiff might have been successful if he had been able to show that the company had perceived him as being disabled as a result of his obesity. For this reason, employers should avoid making assumptions about the capabilities of employees who have medical conditions. Savvy employers assume an employee is capable of performing a job unless an accommodation is requested.

SIDEBAR: EPISODIC OR MEDICATIONCONTROLLED CONDITIONS AREN’T DISABILITIES

Does asthma constitute a disability under the Americans with Disabilities Act (ADA)? In Wofsy v. Palm Shores Retirement Community, a federal trial court held it doesn’t.

Two years after a Florida retirement community hired a driver, he submitted a doctor’s note recommending restricting his driving to the St. Petersburg area because of his asthma. His employer complied with this restriction until it bought a bus and then required him to drive outside the St. Petersburg area. When he refused, the employer reduced his hours and hired a bus driver.

The driver sued for disability discrimination. Before the trial started, he asked the court to rule in his favor on grounds that the facts were undisputed, and he was entitled to judgment as a matter of law.

The court refused. It found that the record established that the driver could regularly perform his job duties. It also found that the driver had failed to:

• Establish that his asthma substantially limited the life activities of breathing or working or both,
• Specify how and to what extent his asthma limited his ability to perform his job,
• Have his physician complete his employer’s medical questionnaire to clarify specific physical limitations and work restrictions, and
• Produce medical evidence showing that his asthma 1) wasn’t episodic, and 2) couldn’t be treated or controlled by readily available medication.

So the court concluded that the driver had failed to establish that his asthma was a “disability” as defined under the ADA. It is important to remember that all determinations of disability are fact specific and must be made on a case-by-case basis.