Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals: The First Circuit Tips the Scales of Justice to Protect the Overweight
Introduction
Although frequently ridiculed, harassed, and discriminated against, America's obese(1) persons have traditionally received little legislative protection.(2) In a world that has become increasingly intolerant of arbitrary bias, the overweight have remained safe prey for the skin-deep and shallow.(3) The consequences have been grim; for example, obese men and women are less likely to be married, complete fewer years of education, and earn less money than those of normal weight.(4) In Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals,(5) the United States Court of Appeals for the First Circuit took a bold step to address the problem by holding that overweight persons can qualify for discrimination protection under the Rehabilitation Act of 1973.(6)
This Comment analyzes the Cook decision against the backdrop of the relevant statutory and common law. Part II provides the reader with background information concerning the Rehabilitation Act of 1973 (Rehabilitation Act),(7) the Americans with Disabilities Act of 1990 (ADA),(8) and past obesity discrimination decisions in the United States.(9) Part III details the facts and procedural history of Cook before examining the United States Court of Appeals for the First Circuit's decision.(10) Finally, Part IV provides an analysis of the Cook holding,(11) followed by Part V, the conclusion.(12)
Background
A. The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990
The Rehabilitation Act was enacted to equalize employment opportunities for the handicapped.(13) Section 504(14) of the Rehabilitation Act prohibits discrimination by recipients of federal funding(15) against "otherwise qualified" individuals with disabilities.(16) An "`individual with a disability'" is defined as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."(17) The ADA extends the disability protections of section 504 to the private sector.(18)
A breakdown of the operative phrases of section 504 helps illustrate which conditions may be protected by the Rehabilitation Act and the ADA. The United States Department of Health and Human Services (HHS) promulgated the regulatory scheme which implements the Rehabilitation Act.(19) The HHS regulations define a "qualified handicapped" individual as one "who, with reasonable accomodation, can perform the essential functions of the job in question."(20) A "physical or mental impairment" is "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of [certain] body systems,"(21) or "any mental or psychological disorder."(22) The regulations do not attempt to list all conditions that would qualify as impairments because of the "difficulty in ensuring the comprehensiveness of any such list."(23) The HHS regulations offer little assistance in determining exactly what constitutes a "substantial limitation" on major life activities.(24) Guidance, however, may be derived from regulations promulgated by the Equal Employment Opportunity Commission (EEOC) to implement the ADA.(25) Impairments that "substantially limit" major life activities are described as those that do not allow the afflicted person to perform activities "that the average person in the general population can perform" or those impairments that restrict the "manner or duration under which an individual can perform a particular major life activity."(26) The phrase "major life activities" includes walking, breathing, working, learning, and other manual tasks.(27)
Importantly, under both the Rehabilitation Act and the ADA, the definition of "handicapped person" includes an individual who is actually physically impaired and who is "regarded" or perceived as being impaired.(28) To establish a "perceived handicap," the claimant must prove that he or she was discriminated against based upon an impairment that (1) does not really limit his or her major activities; (2) does limit his or her major activities but only because of society's misperceptions about his or her impairment; or (3) is not actually an impairment at all but is treated by the employer as if it were a substantially limiting condition.(29) The provision for "perceived handicaps" was included because "[i]t is of little solace to a person denied employment to know that the employer's view of his or her condition is erroneous."(30)
B. Obesity Discrimination Case Law
1. Obesity Is Not a Handicap
The majority of courts considering the issue of obesity discrimination have concluded that obesity, absent something more, is not a disability.(31) In Cassista v. Community Foods, Inc.,(32) an overweight woman filed a claim against a cooperative health food store that refused to hire her because of concerns associated with her weight.(33) Cassista brought her claim under California's Fair Employment and Housing Act (FEHA),(34) which was modeled after the Rehabilitation Act and the ADA.(35) The Supreme Court of California concluded that obesity could only be recognized under the FEHA if the person asserting the claim could establish that his or her condition had a "physiological" basis.(36) The court asserted that a person has a handicap only if he or she is regarded as having a condition covered by FEHA.(37) The court concluded that, because the employer had not regarded the claimant as suffering from a physiologically based obesity, but rather that she suffered from voluntary obesity, there was no violation of FEHA.(38)
In Civil Service Commission v. Pennsylvania Human Relations Commission,(39) the Pennsylvania Supreme Court determined whether a laborer suspended because his weight exceeded the then effective height-weight tables, could collect back pay for the period of his suspension.(40) The Pennsylvania statute in question mirrored the Rehabilitation Act,(41) and the employee claimed that he was entitled to protection on a "perceived disability" theory.(42) The employee established that he had been suspended solely because of his weight(43) and that he was perfectly capable of performing his employment responsibilities.(44) The court, however, stated that in order to bring a perceived impairment action, a person must show that he or she actually has a disorder affecting the "body systems."(45) Because the evidence failed to show that the employee was impaired,(46) the court dismissed the complaint.(47) The dissent argued that "[t]o analyze this claim on whether [the employee] has a handicap is to change the nature of his complaint."(48) The employee did not allege that he was actually impaired; rather "he argued that the City's weight standard was a discriminatory practice because . . . its effect is to impose an illegal handicap on him."(49)
In Krein v. Marian Manor Nursing Home,(50) an obese nurse's aide brought suit against her former employer after being discharged, in part, because of her weight.(51) The employee testified that her weight did not substantially affect her ability to participate in most activities(52) and that she was "unaware of any specific physical problem underlying her overweight condition."(53) The court concluded that "the mere assertion that one is overweight or obese is not alone adequate" to qualify the claimant for handicap discrimination protections.(54)
Finally, in Tudyman v. United Airlines,(55) a male bodybuilder brought suit under the Rehabilitation Act after being terminated because his weight did not comport with the airline's height-weight requirements.(56) Stressing that the plaintiff was rejected from only one job, and that his condition was "voluntary" and "self-imposed," the court refused to extend disability protections to him.(57)
2. Obesity Is a Disability
Several courts have concluded that the condition of obesity alone can constitute a disability. In New York Division of Human Rights v. Xerox Corp.,(58) the Xerox Corporation refused to hire a computer programmer after a pre-employment physical revealed that she was obese.(59) The applicant filed a claim with the State Division of Human Rights, alleging that she had been illegally discriminated against based upon a disability.(60)
The court observed that the New York Human Rights Law(61) defines disability more broadly than does the Rehabilitation Act.(62) The court further noted that New York's statute includes protections not only for physical or mental impairments, but also for "medical" impairments.(63) The court concluded that the applicant's condition qualified as a disability under the "medical impairment" portion of the statute because Xerox's own physician diagnosed the obesity and concluded that it rendered her "medically unsuitable" for the position.(64) Rejecting the argument that the statute applied only to involuntary conditions, the court noted that "the statute protects all persons with disabilities and not just those with hopeless conditions."(65)
Operating under a statute similar to the one interpreted by the Xerox court, the New Jersey Superior Court, in Gimello v. Agency Rent-A-Car Systems, Inc.,(66) ruled that obesity could be a protected impairment.(67) In Gimello, an office manager brought a wrongful termination suit against his former employer.(68) After establishing at an administrative hearing that he had been fired solely because he was obese,(69) the plaintiff brought suit under a "perceived disability" theory.(70) Since he had sought treatment for his condition, the court concluded that his obesity was a medical condition "covered by the broad language of [the New Jersey statute]."(71)
EEOC administrative decisions have also recognized the right of obese persons to receive protection against discrimination.(72) In King v. Frank,(73) a former postal worker claimed that he had been terminated from his job because of his supervisor's perception that his obesity was a handicap.(74) The Commission noted that obesity "can, in certain instances, qualify as an impairment within the meaning of our regulations."(75) Concluding that the agency had regarded the petitioner as substantially limited in one of life's major activities--work--the Commission ruled that the petitioner was entitled to protection under the Rehabilitation Act.(76) In Smith v. Cheney,(77) a federal worker successfully argued that his obesity was an actual handicap because it permanently and "substantially" limited his ability to perform manual tasks.(78)
Thus, until the Cook decision, no court had found that obesity, absent some physiological basis, could be a protected impairment under the Rehabilitation Act.(79) Instead, previous obesity discrimination claimants had only been successful using broader state statutes or administrative law decisions.(80)
Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals
A. Facts
In November 1988, plaintiff-appellee Bonnie Cook applied for employment as "an institutional attendant for the mentally retarded (IA-MR)" at the Ladd Center (Center), a facility operated by the "defendant-appellant [Rhode Island] Department of Mental Health, Retardation, and Hospitals (MHRH)."(81) Cook had previously been employed at the center as an IA-MR "from 1978 to 1980, and again from 1981 to 1986."(82) Both times, Cook had departed MHRH leaving a "spotless work record" that the MHRH conceded "met its legitimate expectations."(83)
Cook had always been overweight, but her routine pre-hire physical in 1988 revealed that she was in a state of "morbid[] obes[ity]."(84) At the time, Cook stood five feet, two inches tall, and weighed more than 320 pounds.(85) Although the nurse who conducted the pre-hire physical concluded that Cook's condition did not "impinge[] upon her ability to do the job," MHRH "balked."(86) The Center claimed that Cook's condition "compromised her ability to evacuate patients in case of an emergency" and also left her more susceptible to health risks.(87) As a result, "MHRH refused to hire [Cook] for a vacant IA-MR position."(88)
B. Procedure
Two years later, in November 1990, Cook brought a handicap discrimination suit against MHRH in the United States District Court for the District of Rhode Island.(89) Cook alleged that by denying her employment at the Ladd Center solely because of her obesity in 1988, MHRH had violated section 504 of the Rehabilitation Act(90) and analogous state laws.(91)
MHRH then filed a motion to dismiss for failure to state a claim upon which relief can be granted,(92) arguing that morbid obesity, without more, is not a handicap recognized by the Rehabilitation Act.(93) The district court denied the motion, reasoning that under the applicable standard of review for motions to dismiss,(94) it was inappropriate to conclude that obesity could never be a handicap protected by section 504.(95) The court explained that "to the extent that . . . Cook's form of obesity . . . is caused by systemic or metabolic factors and constitutes an immutable condition that she is powerless to control, it may be a physiological disorder qualifying as a handicap."(96) The court also recognized that Cook may have a perceived disability claim even if it could be determined from the face of the complaint that Cook was not actually disabled.(97)
The parties tried the case in front of a jury in September 1992.(98) At the close of evidence, MHRH "moved for judgment as a matter of law,"(99) upon which the court reserved judgment.(100) The case was submitted to the jury, which returned a verdict for Cook, awarding her $100,000 in compensatory damages.(101) The court denied MHRH's motions for judgment as a matter of law and for a new trial, and entered judgment for Cook.(102) MHRH promptly appealed to the Court of Appeals for the First Circuit.(103)
C. The First Circuit's Analysis
The Cook court posited that in order to invoke section 504 of the Rehabilitation Act(104) in a "failure-to-hire case," the plaintiff bears the burden(105) of proving four elements.(106) First, the claimant must establish that the position applied for was part of a "federally funded program or activity."(107) Next, she must demonstrate "that, at the time [of application], she suffered from a cognizable disability."(108) Third, the applicant must establish that she was "qualified for the position."(109) Finally, the petitioner must show that the employer failed to hire her "due solely to her disability."(110) Cook argued that even though she was fully qualified, the Ladd Center, a recipient of federal funding, had refused to hire her solely because it "regarded her as physically impaired," and maintained that this would impinge upon her ability to work as an effective IA-MR.(111) MHRH conceded at the outset that "it received substantial federal funding for the operation of the Ladd Center," thus the court focused its discussion on the remaining three elements.(112)
1. Cognizable Disability
Due to the scarcity of prior "`perceived disability'" claims, the court was forced to "explore new frontiers" as it decided whether MHRH had impermissibly discriminated against Cook by regarding her condition as one that foreclosed her employment opportunities with the Ladd Center.(113) After reciting the relevant portions of section 504,(114) the court concluded that Cook could establish a cognizable disability under a perceived disability theory via two different scenarios.(115) Cook could show that "(1) while she had a physical or mental impairment, it did not substantially limit her ability to perform major life activities";(116) or (2) that "she did not . . . [have] a[n] . . . impairment," but "that MHRH treated her impairment (whether actual or perceived) as substantially limiting one or more of her major life activities."(117) The court observed that "the jury could plausibly have found that [Cook] had a cognizable impairment" under either of the two scenarios.(118)
First, the jury could have concluded that Cook had a physical impairment--obesity--that did not limit her ability to perform major life activities.(119) Cook introduced expert evidence "that morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite-suppressing signal system which can cause adverse effects within the musculoskeletal, respiratory, and cardiovascular systems."(120) Cook could also show that, although she was not disabled, she was treated by MHRH as if she were disabled.(121) Under this theory, Cook was not required to establish that she had an impairment of any kind but simply that MHRH had treated her as if she did.(122) The court noted that MHRH's reasons for not hiring Cook--its concern over her possible inability to evacuate patients and heightened risk of workers' compensation claims--showed conclusively that MHRH treated Cook's impairment "as if it actually affected her . . . bodily systems."(123) To prevail under either theory, Cook was required to prove that MHRH regarded her disability (or perceived disability) as substantially limiting a major life activity.(124)
2. Major Life Activities: Substantial Limiting Effect
The court first analyzed what constituted a major life activity.(125) Noting that the regulations include breathing, working, walking, and other manual tasks,(126) the court observed that MHRH personnel had refused to hire Cook because they believed that she could not perform physical activities.(127) The First Circuit concluded that on this basis alone, the jury could have found that "MHRH viewed [Cook's] suspected impairment as interfering with major life activities."(128)
The court next considered the question of whether Cook's impairment "`substantially limited' one of [Cook's] major life activities."(129) Pointing out that MHRH's own doctor had concluded that Cook's condition severely limited her employment options in the health care industry,(130) the court held that a reasonable juror could have concluded that MHRH regarded Cook's condition as substantially limiting her in the major life activity of work.(131)
MHRH argued that, to draw this conclusion, the jury would have to engage in "rank conjecture," because Cook "was only rejected from one job."(132) The court, however, refused to require that an applicant be rejected from a "myriad of jobs" before becoming eligible to bring a claim under the Rehabilitation Act.(133) The court observed that "each case must be determined on its own facts," but that even a rejection from a single job could show that the employer regards the applicant as having a substantial limitation.(134) That is, "[i]f the rationale proffered by an employer in the context of a single refusal to hire adequately evinces that the employer treats a particular condition as a disqualifier for a wide range of employment opportunities, proof of a far-flung pattern of rejections may not be necessary.(135) MHRH had regarded Cook as having a limited ability to bend, kneel or stoop, shortcomings that, as MHRH admitted, "foreclosed a broad range of employment options in the health care industry."(136) Therefore, the court concluded that MHRH's rejection of Cook for even a single job could reasonably indicate to a juror that MHRH regarded Cook as substantially limited in the major life activity of work.(137)
3. MHRH's Attack: Mutability and Voluntariness
MHRH argued that Cook did not present a cognizable disability because obesity, as a mutable and voluntary condition, is not protected by section 504.(138)
a. Mutability
MHRH urged that "morbid obesity is a mutable condition and that, therefore, one who suffers from it is not handicapped . . . because she can simply lose weight and rid herself of any concomitant disability."(139) The court first observed that the district court's charge to the jury essentially mirrored the position of MHRH on mutability by instructing the jury that the "`condition or disorder [was] not an impairment unless it . . . constitute[d] an immutable condition.'"(140) Since the jury sided with Cook, even with the judge's charge "[singing MHRH's] song,"(141) the court concluded that MHRH's argument must be limited to the facts.(142) The court refused to conclude that the facts were such that a reasonable jury could not have found that Cook's obesity was immutable.(143)
Moreover, the Cook court held that even if immutability were a requirement to finding that a condition was an actual impairment within the Rehabilitation Act, it would not be a requirement in a perceived disability case.(144) A "perceived disability" action only requires that the employer treat the applicant's condition as an "`impairment of a continuing nature,'"(145) and reject the applicant based on this perception.(146) The court believed that there was sufficient evidence for the jury to conclude that MHRH had rejected Cook because it believed that Cook's obesity would be an indefinite condition.(147)
b. Voluntariness
MHRH also argued that morbid obesity should not fall within the purview of section 504 because it is "caused, or at least exacerbated, by voluntary conduct."(148) The court rejected this premise by pointing out that conditions such as AIDS and alcoholism, both of which can be caused by voluntary conduct, already received protection under the Rehabilitation Act.(149) Consequently, the court concluded that the concepts of mutability and voluntariness were relevant only to the analysis of "whether a condition has a substantially limiting effect."(150) Because the court had already concluded that MHRH had regarded Cook's condition as substantially limiting, it went on to determine whether Cook was otherwise qualified.(151)
4. Cook's Qualifications
To determine whether Cook was qualified for the position, the court observed that "`an otherwise qualified person is one who is able to meet all of a program's requirements in spite of h[er] handicap.'"(152) The employer is not required to make a perfect assessment of the applicant; however, the court noted, the employer's conclusion that an applicant is not qualified must be objectively reasonable.(153) MHRH argued that Cook was unqualified, or that it was reasonable to believe that she was unqualified, because her condition presented such a severe risk both to herself and the patients.(154) The First Circuit refused to adopt this position for three reasons.(155)
First, the court noted that the question of whether Cook was qualified was a question for the jury.(156) The jury had specifically found that Cook was otherwise qualified and that MHRH had not reasonably believed that Cook lacked the requisite qualifications.(157) Next, the court questioned whether MHRH had introduced evidence to make Cook's qualifications a question of fact.(158) Additionally, the court observed that it was simply unjustifiable for MHRH to rely on concerns over higher absenteeism and workers' compensation costs, because such inconveniences are reasonable accommodations that the employer must make to "permit the employment of disabled persons."(159)
5. Denial Solely Due to Handicap
The court observed that, because the state had offered no explanation beyond Cook's obesity, for denying her employment, it was reasonable for the jury to conclude that the state had denied her employment solely because of her disability.(160) In conclusion, the court wrote that "[i]n a society that all too often confuses `slim' with `beautiful' or `good,' morbid obesity can present formidable barriers to employment. Where, as here, the barriers transgress federal law, those who erect and seek to preserve them must suffer the consequences."(161) The First Circuit upheld the district court's award.(162)
Analysis
The Cook court, relying on a perceived disability theory, held that obesity can constitute a disability entitled to protection from discrimination under federal law.(163) The court also suggested that obesity could form the basis of an actual disability claim despite popular perceptions that it is a mutable and voluntary condition.(164) This Comment takes the position that numerous justifications exist that support the recognition of obesity in both the actual and perceived disability setting.(165)
First, when analyzing "actual disability" discrimination claims based upon obesity, it is both unnecessary and unfair to craft special--indeed discriminatory--rules requiring a showing of involuntariness or mutability.(166) Second, as the First Circuit observed, even if immutability or involuntariness were necessary elements in the resolution of actual disability claims, the doctrines are not applicable to claims based upon perceived disabilities.(167) Finally, concerns regarding the extension of disability protection to the obese are overstated and without merit.(168) Instead, the advantages of affording discrimination protection to the obese far outweigh any negative consequences it may invoke.
A. Obesity As an "Actual Disability"--The Language of Section 504 Requires No Further Limitations
Section 504 and its statutory and regulatory framework are designed to be flexible and to allow for the recognition of a wide range of diseases and conditions.(169) By properly applying the standards set forth in section 504, courts can ensure that obesity is protected as an actual disability only in serious cases in which "there is evidence that it has a significant long-term impact on a major life activity."(170) Requiring obese persons to demonstrate that their obesity results from an involuntary and immutable physiological condition is simply not necessary. Indeed, reliance on such factors in obesity discrimination cases flows from archaic stereotypes and legal misperceptions.(171)
Traditionally, obesity has been considered a voluntary and mutable condition, and, therefore, not deserving of the protection afforded other "more legitimate" impairments such as paraplegia.(172) This view is misguided for three reasons. First, there is no general requirement that a condition be immutable or involuntary to be recognized under section 504's definition of disability.(173) In fact, the Rehabilitation Act and the ADA have already extended protection to conditions such as alcoholism,(174) AIDS,(175) and drug addiction(176)--all of which are caused or worsened by voluntary conduct.(177) It seems manifestly unfair to protect alcoholics and drug abusers without protecting obese persons, especially when one considers the high price that obese people pay for their condition.(178)
Ours is a society obsessed with being thin.(179) We are bombarded with advertisements for diet aids and weight loss programs.(180) Television, magazines, and movies routinely present to us models who possess bodies that are unattainable by the majority of our society.(181) The effect has been to equate "slim" with "good."(182) In short, discrimination against overweight people has become a deeply ingrained and serious problem in our culture.(183)
Our discriminatory actions begin early; in one study, children were shown pictures of people with various disabilities and asked to rank them.(184) The children consistently ranked the picture of an obese person as least desirable, ranking obesity lower than conditions such as dismemberment and facial disfigurement.(185) Bias against the overweight continues through obese persons' adulthood, and takes its toll on numerous fronts.(186) Obese persons are socially ostracized, under-educated, paid less, and have higher poverty rates than the rest of our population.(187) Our society suffers because we often lose the valuable input that this significant portion of our population could offer, especially in the workplace. The obese person, facing the serious problems posed by discrimination, needs and deserves protection under federal disability law.(188)
Finally, assuming arguendo that a condition should not be covered if it is even partially self-imposed, numerous studies indicate that obese persons simply cannot control their weight.(189) Cook herself presented strong evidence that the metabolic dysfunction that causes morbid obesity can be minimally controlled in the short term, but is virtually incurable in the long term.(190)
Given the absence of an immutability or involuntariness requirement in section 504,(191) the seriousness of discrimination against the overweight, and the studies indicating that obesity is beyond a person's control, a case-by-case approach to "actual disability" obesity claims is sound.(192) Instead of creating unnecessary exclusionary tests for obesity, driven by questionable stereotypes and faulty perceptions about the requirements of section 504, each obesity claim should be decided on its own merits.(193) Factors such as voluntariness and immutability are relevant only to the extent that they determine whether a condition is "substantially limiting."(194) A person who could easily alter his or her condition, such as the bodybuilder claimant in Tudyman v. United Airlines,(195) would not be substantially limited and thus would not be given protection.(196) This framework will effectively protect those who are truly victims, while sorting out claims that lack merit.(197)
B. Obesity As a Perceived Disability
The second principal pillar supporting the extension of disability protection to the obese is exemplified by the First Circuit's treatment of Cook's "perceived disability" claim.(198) The Cook court noted that, even if immutability or involuntariness were requirements for an "actual disability," the doctrine would be of little use in a "perceived disability" action.(199)
The proper focus in a perceived disability claim is not on the physical characteristics of the claimant, but instead on the employer's perception of the claimant's condition.(200) Importantly, there is no requirement that the claimant actually be impaired to suffer discrimination based upon a perceived disability.(201) As the regulations implementing and interpreting the "regarded as" prong of section 504 demonstrate, a claimant may bring a perceived disability claim where, although he or she has no impairment, the employer regards the claimant as substantially limited in some important life activity.(202) In the perceived disability setting, any requirement that only immutable or involuntary obesity be protected by section 504 is superfluous because the claimant's actual impairment is not dispositive.(203)
The perceived disability claim protects people from society's "accumulated myths and fears" of disabilities.(204) Obese persons are particularly vulnerable to attacks based upon stereotypical reactions in which people often perceive obesity to be limiting in ways that it is not.(205) The Cook court understood the seriousness of this problem and appropriately recognized the "regarded as" provision of section 504 as a possible remedy.(206)
C. Problems Associated with Extending Disability Discrimination Protection to the Obese Are Overstated
Opponents of extending disability discrimination to obese persons have raised two principal concerns. One argument is that providing disability protection to the obese will open the door to a plethora of discrimination claims.(207) A second criticism is economically based, and argues that such an extension of protection to obese persons will result in increased costs to employers because of the probable increase in group health insurance and workers' compensation costs.(208) Both concerns are easily assuaged. Recognizing that obesity can be a disability deserving legal protection from discrimination will not result in a proliferation of "protected" classes of people.(209) The limits of disability protection have essentially been delineated. For instance, the ADA, while recognizing drug addiction and alcoholism, excludes other conditions such as pedophilia, transvestitism, and compulsive gambling.(210) Though legislative measures cannot police every wrong in our society, government intervention is well justified when a certain class of citizens is subjected to a widespread pattern of discrimination.(211) Obese persons suffer such comprehensive discrimination and are deserving of protection.(212)
The economically based argument against discrimination protection for the obese must also fail. As Cook points out, increased costs due to employing disabled persons must be absorbed by the employer if they are "reasonable."(213) Additionally, the cost argument must be rejected because the need to protect the disabled from arbitrary discrimination far outweighs any increased costs to employers.(214) The heavy economic burden placed upon society in general--and obese persons in particular--by employment discrimination, easily justifies an extension of protection to the obese.(215)
Conclusion
In Cook v. Rhode Island, Department of Mental Health, Retardation, & Hospitals, the Court of Appeals for the First Circuit took an important first step toward eradicating obesity discrimination.(216) Recognizing that the myths and stereotypes associated with obese persons rarely correspond with fact, the court properly applied federal disability law to redress a serious injustice.(217) Unfortunately, it will likely take more than laws and court cases to change our society's deeply rooted prejudice against obese people. However, because of the Cook decision, organizations that discriminate against qualified individuals because of their obesity may find that the law no longer shelters their arbitrary bias.
Peter J. Perroni*
1. The term "obesity" generally refers to "an increase in body weight beyond the limitation of skeletal and physical requirement, as the result of an excessive accumulation of fat in the body." Dorland's Illustrated Medical Dictionary 1166 (28th ed. 1994). The term "morbid obesity" is defined as "the condition of weighing two or three or more times the ideal weight . . . [and is] associated with many . . . life threatening disorders." Id.; see also Jane O. Baker, Comment, The Rehabilitation Act of 1973: Protection for Victims of Weight Discrimination?, 29 UCLA L. Rev. 947, 948-49 (1982).
2. The only state to specifically enumerate high body weight as a protected condition is Michigan. See Mich. Comp. Laws § 37.2102 (1985) (Mich. Stat. Ann. § 3.548(102)(1) (Callaghan 1990)). Courts have often held that obesity is not protected under anti-discrimination statutes. See infra part II.B.
3. See Catherine Keefe, Fat Under Fire, Orange County Reg., Nov. 7, 1995, at 1; see also infra notes 179-88 and accompanying text.
4. Steven L. Gortmaker et al., Social and Economic Consequences of Overweight in Adolescence and Young Adulthood, 329 New Eng. J. Med. 1008, 1009 (1993); see also infra notes 172-88 and accompanying text.
5. Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993).
7. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified at 29 U.S.C. §§ 701-797 (1994)).
8. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101-12213 (1994)).
9. See infra notes 13-80 and accompanying text.
10. See infra notes 81-162 and accompanying text.
11. See infra notes 163-215 and accompanying text.
12. See infra text accompanying notes 216-17.
14. Rehabilitation Act of 1973, § 504, 87 Stat. 394 (1973) (codified as amended at 29 U.S.C. § 794(a) (1994)).
15. See 29 U.S.C. § 794(a) (1994).
16. Id. ("No otherwise qualified individual . . . shall . . . be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .").
18. 42 U.S.C. § 12111(5)(A) (1994). The ADA took effect in July 1992. Patricia Hartnett, Note, Nature or Nurture, Lifestyle or Fate: Employment Discrimination Against Obese Workers, 24 Rutgers L.J. 807, 821 (1993) (citing Jeffery O. Cooper, Overcoming Barriers to Employment: The Meaning of Reasonable Accomodation and Undue Hardship in the Americans With Disabilities Act, 139 U. Pa. L. Rev. 1423, 1426 (1991)). The legislation prohibits employers with 25 or more employees from discriminating based upon disability. See 42 U.S.C. § 12111(5)(A) (1994); see also generally Nancy L. Jones, Overview and Essential Requirements of the Americans with Disabilities Act, 64 Temp. L. Rev. 471, 475 (1991).
19. School Bd. v. Arline, 480 U.S. 273, 279 (1987). Because "these regulations were drafted with the oversight and approval of Congress," they can be of "significant assistance" in "determining whether a particular individual is handicapped as defined by the Act." Id.
20. 45 C.F.R. § 84.3(k)(1) (1995). Regarding what constitutes a "reasonable accommodation," 45 C.F.R. § 84.12(a)-(b) (1995) states the following:
(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
(b) Reasonable accommodation may include: (1) Making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.45 C.F.R. § 84.12(a)-(b) (1995).
23. 45 C.F.R. Part 84, App. A subpart A(3) at 348 (1995). However, the regulation does include within its coverage "such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and . . . drug addiction and alcoholism." Id.
24. Id. The regulation merely states that "[t]he Department does not believe that a definition of this term is possible at this time." Id.
25. See, e.g., 29 C.F.R. § 1630.2(j) (1995).
26. Id. The regulation provides:
(j) Substantially limits--(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.Id.
27. 45 C.F.R. § 84.3(j)(2)(ii) (1995).
28. 29 U.S.C. § 706(8)(B) (1993); see also supra text accompanying note 17; infra part IV.B.
29. 45 C.F.R. § 84.3(j)(2)(iv)(A)-(C) (1995). The regulation defines the phrase "[i]s regarded as having an impairment" as follows:
(A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient [of federal funding] as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient [of federal funding] as having such an impairment.Id.
30. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1097 (D. Haw. 1980); see also School Bd. v. Arline, 480 U.S. 273, 284-85 (1987). In Arline, the Court explained the following:
By amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. . . . The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments . . . .Arline, 480 U.S. at 284-85 (footnotes omitted).
31. Donald L. Bierman, Jr., Comment, Employment Discrimination Against Overweight Individuals: Should Obesity Be a Protected Classification?, 30 Santa Clara L. Rev. 951, 961-64 (1990); Kimberly B. Dunworth, Note, Cassista v. Community Foods, Inc.: Drawing the Line At Obesity?, 24 Golden Gate U. L. Rev. 523, 531 (1994).
32. Cassista v. Community Foods, Inc., 856 P.2d 1143 (Cal. 1993).
34. Cal. Gov't Code §§ 12900-12996 (West 1992).
35. Cassista, 856 P.2d at 1152; see also Dunworth, Note, supra note 31, at 526.
36. Cassista, 856 P.2d at 1153.
39. Civil Serv. Comm'n v. Pennsylvania Human Relations Comm'n, 591 A.2d 281 (Pa. 1991).
40. Id. at 282. The employee was allowed to return to work after the city for which he worked discontinued the use of height-weight tables as a criterion for employment. Id.
44. Civil Serv. Comm'n, 591 A.2d at 284.
45. Id. at 283; see also infra part IV.B.
46. Civil Serv. Comm'n, 591 A.2d at 284 & n.1.
48. Id. at 285 (Papadakos, J., dissenting); see also infra notes 199-209 and accompanying text.
49. Civil Serv. Comm'n, 591 A.2d at 285 (Papadakos, J., dissenting).
50. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793 (N.D. 1987).
55. Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984).
57. Id.; see also Philadelphia Elec. Co. v. Commonwealth, 448 A.2d 701, 707 (Pa. 1982) (holding that obesity alone is not a handicap); Missouri Comm'n on Human Rights v. Southwestern Bell Tel., 699 S.W.2d 75, 78-79 (Mo. Ct. App. 1985) (holding that obesity alone is not a disability).
58. New York Div. of Human Rights v. Xerox Corp., 480 N.E.2d 695 (N.Y. 1985).
59. Id. at 696. Xerox had offered the applicant a position provided that she could pass the physical examination. Id. The physical revealed that the applicant carried 249 pounds on her five-foot, six-inch frame, leading the doctor to conclude that she was "`obese.'" Id. The examination did not reveal any other medical conditions. Id.
61. N.Y. Exec. Law §§ 290-301 (McKinney 1993).
63. Id. The statute in effect at the time of the case defined "disability" as:
"[A] physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions with [sic] prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to physical, mental or medical conditions which are unrelated to the ability to engage in the activities involved in the job or occupation which a person claiming protection of this article shall be seeking."N.Y. Exec. Law § 292(20) (McKinney 1974), quoted in Xerox, 480 N.E.2d at 696 (current version at N.Y. Exec. Law § 292(21) (McKinney 1993)). The new formulation conforms more closely with the Rehabilitation Act. Compare N.Y. Exec. Law § 292(21) (McKinney 1993) with 29 U.S.C. § 706(8)(B) (1994). The New York law states the following:
The term "disability" means (a) a physical mental [sic] or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.N.Y. Exec. Law § 292(21) (McKinney 1993).
64. Xerox, 480 N.E.2d at 696-98.
65. Id. at 698 (footnote omitted).
66. Gimello v. Agency Rent-A-Car Sys., Inc., 594 A.2d 264 (N.J. Super. Ct. App. Div. 1991).
67. Id. at 276. The New Jersey statute, in effect, was broader than the Rehabilitation Act. Compare N.J. Stat. Ann. § 10:5-5q (West 1991) with 29 U.S.C. § 706(8)(B) (1994). The New Jersey statute included any "physiological . . . conditions which . . . [are] demonstrable . . . by accepted . . . diagnostic techniques." N.J. Stat. Ann. § 10:5-5q (West 1991), quoted in Gimello, 594 A.2d at 274. Importantly, the statute also contained a provision allowing for "perceived disability" claims. See N.J. Stat. Ann. § 10:5-5q (West 1991).
70. Id. at 265. The court concluded that the "perceived" or "actual" dichotomy was important to the decision. Id. at 273. The court stated: "The fact is that [the plaintiff] was obese, as demonstrated by unrefuted medical evidence. The employer's actual perception may not be particularly important when a real medical or pathological condition exists." Id. at 278.
72. See, e.g., Smith v. Cheney, E.E.O.C. Petition No. 03920009 at 6-7 (Dec. 30, 1991), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment A, Cook (No. 93-1093); King v. Frank, E.E.O.C. Appeal No. 01893939 at 1 (Apr. 16, 1990), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment B, Cook (No. 93-1093). But see Hill v. Newman, E.E.O.C. Petition No. 03890058 at 1 (Nov. 8, 1989), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment C, Cook (No. 93-1093); Eubanks v. U.S.P.S., E.E.O.C. Appeal No. 01821007 at 1 (Sept. 13, 1982), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment D, Cook (No. 93-1093).
73. King v. Frank, E.E.O.C. Appeal No. 01893939 at 1 (Apr. 16, 1990), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment B, Cook (No. 93-1093).
77. Smith v. Cheney, E.E.O.C. Petition No. 03920009 at 1 (Dec. 30, 1991), reprinted in Brief of the Equal Employment Opportunity Commission As Amicus Curiae at Attachment A, Cook (No. 93-1093).
78. Id. at 6. The worker's ability to "perform manual tasks," including kneeling, lifting, and walking, was substantially limited. Id.
81. Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 20 (1st Cir. 1993).
84. Id. (footnote omitted); see also supra note 1 and accompanying text. The Cook court referred to the following definition of "morbid obesity": "[A] person [is] morbidly obese if she weighs either more than twice her optimal weight or more than 100 pounds over her optimal weight." Cook, 10 F.3d at 20 n.1 (citing The Merck Manual of Diagnosis and Therapy 950, 953 (Robert Berkow & Andrew J. Fletcher eds., 15th ed. 1987)).
85. Cook, 10 F.3d at 20. At her pre-trial physical in 1981, Cook weighed approximately 240 pounds. Brief of Appellee at 9, Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993) (No. 93-1093).
87. Id. MHRH speculated that the increased health risks associated with Cook's obesity would lead to absenteeism and workers' compensation claims. Id.
89. Cook v. Rhode Island, Dep't of Mental Health, Retardation & Hosps., 783 F. Supp. 1569, 1571 (D.R.I. 1992); see also Brief of Appellee at 9, Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993) (No. 93-1093).
91. See Cook, 10 F.3d at 21 n.2. Cook also brought suit under the Rhode Island Fair Employment Practices Act, R.I. Gen. Laws §§ 28-5-1 to -40 (1992 Supp.) and the Rhode Island Civil Rights of Individuals With Handicaps Act, R.I. Gen. Laws §§ 42-87-1 to -4 (1992 Supp.). Cook, 10 F.3d at 21 n.2. Because the elements necessary to establish the state claims were virtually identical to those under the Rehabilitation Act, the parties agreed that it was not necessary for the court to independently address the state law claims. Id.
92. See Fed. R. Civ. P. 12(b)(6).
93. Cook, 783 F. Supp. at 1571. MHRH also argued that the complaint should fail for lack of timeliness. Id. The court concluded, however, that the claim had been brought well within the three-year statute of limitations provided for by the applicable Rhode Island statute, R.I. Gen. Laws § 9-1-14 (1989). Cook, 783 F. Supp. at 1572.
94. The district court noted that a rule 12(b)(6) motion to dismiss should be granted "only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cook, 783 F. Supp. at 1571 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
95. Cook, 783 F. Supp. at 1573-74.
96. Id. at 1573 (citing New York Div. of Human Rights v. Xerox Corp., 480 N.E.2d 106 (N.Y. 1985); Philadelphia Elec. Co. v. Pennsylvania Human Relations Comm'n, 448 A.2d 701, 706-07 (Pa. Commw. Ct. 1982)).
97. Cook, 783 F. Supp. at 1574; see also infra notes 198-206 and accompanying text.
98. Cook, 783 F. Supp. at 1567.
99. Cook, 10 F.3d at 21; see also Fed. R. Civ. P. 50(a).
100. Cook, 10 F.3d at 21; see also Fed. R. Civ. P. 50(b).
105. Cook, 10 F.3d at 22 (citing Joyner v. Dumpson, 712 F.2d 770, 774 (2d Cir. 1983); Sedor v. Frank, 756 F. Supp. 684, 686 (D. Conn. 1991)).
107. Id. (citing 29 U.S.C. § 794(a)).
108. Cook, 10 F.3d at 22 (citing 29 U.S.C. § 794(a)); see also supra part II.A.
109. Cook, 10 F.3d at 22 (citing 29 U.S.C. § 794(a)); see also supra part II.A.
116. Id. (citing 45 C.F.R. § 84.3(j)(2)(iv)(A) (1993)); see also supra notes 26-27 and accompanying text; infra part III.C.2.
117. Cook, 10 F.3d at 23 (citing 45 C.F.R. § 84.3(j)(2)(iv)(C) (1993)); see also supra notes 26-27 and accompanying text; infra part III.C.2.
123. Cook, 10 F.3d at 23 (footnote omitted).
125. Id. at 25; see also supra notes 26-27 and accompanying text.
128. Id. (citing Perez v. Philadelphia Housing Auth., 677 F. Supp. 357, 360-61 (E.D. Pa. 1987), aff'd, 841 F.2d 1120 (3d Cir. 1988)).
129. Id. The court observed that "the term `substantially limits' [was] not defined in the regulations" implementing the Rehabilitation Act, id. at 25 n.10, but was alluded to in the EEOC regulations implementing its close cousin--the ADA--and looked to the latter for guidance. Id.; see also supra note 24 and accompanying text.
130. Cook, 10 F.3d at 25. The court noted that the MHRH doctor had testified that he did not believe that Cook could function in a broad spectrum of positions including "nursing home aide, hospital aide, and home health care aide." Id.
133. Id. The court wrote the following:
The Rehabilitation Act simply does not condition such claims on either the quantum of a plaintiff's application efforts or on her prospects of finding other employment. By way of illustration, suit can be brought against a warehouse operator who refuses to hire all turquoise-eyed applicants solely because he believes that people with such coloring are universally incapable of lifting large crates, notwithstanding that other warehousemen might hire the applicants--or that the recalcitrant firm itself might hire them for other, more sedentary posts.Id. at 25-26.
135. Cook, 10 F.3d at 26. The court explained the following:
If the rationale proffered by an employer in the context of a single refusal to hire adequately evinces that the employer treats a particular condition as a disqualifier for a wide range of employment opportunities, proof of a far-flung pattern of rejections may not be necessary. . . . [D]enying an applicant even a single job that requires no unique physical skills, due solely to the perception that the applicant suffers from a physical limitations [sic] that would keep her from qualifying for a broad spectrum of jobs, can constitute treating an applicant as if her condition substantially limited a major life activity, viz., working.Id.
140. Cook, 10 F.3d at 23 (footnote omitted) (omission in original).
141. Id. The district court had instructed the jury that obesity could only constitute a disability if it were caused by "systemic or metabolic" (and immutable) factors. Cook v. Rhode Island, Dep't of Mental Health, Retardation & Hosps., 783 F. Supp. 1569, 1573 (D.D.I. 1992).
142. Cook, 10 F.3d at 23-24. With regard to the accuracy of the instruction, the court noted the following:
We believe the lower court's basic proposition--that immutability is a prerequisite to the existence of a permanent impairment cognizable under section 504--is problematic. Mutability is nowhere mentioned in the statute or regulations, and we see little reason to postulate it as an automatic disqualifier under section 504. It seems to us, instead, that mutability is relevant only in determining the substantiality of the limitation flowing from a given impairment. So viewed, mutability only precludes those conditions that an individual can easily and quickly reverse by behavioral alteration from coming within section 504.Id. at 23 n.7 (citation omitted).
143. Id. at 24. The court wrote the following:
[T]he jury had before it credible evidence that metabolic dysfunction, which leads to weight gain in the morbidly obese, lingers even after weight loss. Given this evidence, the jury reasonably could have found that, though people afflicted with morbid obesity can treat the manifestations of metabolic dysfunction by fasting or perennial undereating, the physical impairment itself . . . is permanent.Id. (citing Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir. 1991); Reynolds v. Brock, 815 F.2d 571, 573 (9th Cir. 1987)).
145. Id. (quoting Evans v. City of Dallas, 861 F.2d 846, 853 (5th Cir. 1988)).
147. Cook, 10 F.3d 24. The court noted that MHRH's own expert had testified that "it is dangerous for a dieter to lose more than 20% of her total body weight each year," and that the MHRH doctor had testified that "he would have rehired Cook only when she reduced her weight to 190 pounds." Id. at 24 n.8. Because Cook weighed more than 300 pounds, the jury could have, according to the court, concluded that MHRH regarded Cook's condition as continuing for at least the next two years. Id.
149. Id. (citing Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 517 (2d Cir. 1991), cert. denied, 506 U.S. 815 (1992); Severino v. North Fort Meyers Fire Control Dist., 935 F.2d 1179, 1182 (11th Cir. 1991) (AIDS); Gallagher v. Catto, 778 F. Supp. 570, 577 (D.D.C. 1991) (alcoholism), aff'd, 988 F.2d 1280 (D.C. Cir. 1993)). The court also noted that the State's argument, while failing as a matter of law, "fare[d] no better as a matter of fact." Id. Again, the court explained that the jury instructions appeared to adopt the State's position by charging that the condition must be such that "`the person affected is powerless to control [it].'" Id. (footnote omitted). The court did not take the view that this was the correct charge; only that "to the extent that it may [have been] flawed, the possible error operate[d] in [the State's] favor." Id. at 24 n.9.
150. Id. at 24; see also infra notes 169-79 and accompanying text.
152. Id. (alteration in original) (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979)).
153. Id. at 26-27. The belief that an applicant is not qualified "cannot rest on stereotypes and broad generalizations." Id. at 27.
157. Id. at 21 n.3. The court, noting that there was ample evidence to enable the jury to find that Cook was qualified, stated the following:
We will not paint the lily. Several pieces of evidence loom large on this issue. [Cook] received a satisfactory report following the physical examination conducted by [the MHRH's] own nurse; the IA-MR position for which she applied did not demand any elevated level of mobility, lifting ability, size, or stature; [Cook] had satisfactorily performed all her duties and responsibilities as an IA-MR during her previous five years of employment; and [MHRH] acknowledged that those duties and responsibilities have not changed.Id. at 27-28 (footnote omitted).
159. Id.; see also supra note 20 and accompanying text.
165. See infra notes 166-217 and accompanying text.
167. See Cook, 10 F.3d at 24 (citing 45 C.F.R. § 84.3 (j)(2)(iv)(C) (1993)).
168. See infra part IV.B; infra notes 204-15 and accompanying text.
169. School Bd. v. Arline, 480 U.S. 273, 279-80 (1987); id. at 280 n.5 ("[A] broad definition . . . is inherent in the statutory definition."); see also supra text accompanying note 22.
170. Brief of the Equal Employment Opportunity Commission As Amicus Curiae at 13, Cook (No. 93-1093) (footnote omitted).
171. See Baker, Comment, supra note 1, at 949; Dunworth, Note, supra note 31, at 544.
172. See Baker, Comment, supra note 1, at 967; Bierman, Comment, supra note 31, at 957; see also generally Terry S. Hyman, Comment, Voluntary Handicaps--Should Drug Abuse, Alcoholism and Obesity be Protected by Pennsylvania's Anti-Discrimination Laws?, 85 Dick. L. Rev. 475 (1981).
173. See Brief of the Equal Employment Opportunity Commission As Amicus Curiae at 16, Cook (No. 93-1093) ("Neither [the ADA nor the Rehabilitation Act] contains language which demands or even suggests consideration of how an individual became impaired, nor whether an individual contributed to his or her impairment."); see also supra text accompanying note 17.
174. See, e.g., Gallagher v. Catto, 778 F. Supp. 570, 577 (D.D.C. 1991), aff'd, 988 F.2d 1280 (D.C. Cir. 1993).
175. See, e.g., Severino v. North Fort Meyers Fire Control Dist., 935 F.2d 1179, 1182 (11th Cir. 1991).
176. See, e.g., Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 517 (2d Cir. 1991), cert. denied, 508 U.S. 815 (1992).
177. Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993).
178. See generally Albert J. Stunkard & Thorkild Sorenson, Obesity and Socioeconomic Status--A Complex Relation, 329 New Eng. J. Med. 1036, 1042 (1993) (arguing for an extension of disability discrimination statutes to the obese).
179. See Maureen Arrigo-Ward, No Trifling Matter: How the Legal System Supports Persecution of the Obese, 10 Wis. Women's L.J. 27, 27 (1995). Professor Arrigo-Ward noted that "Americans are bombarded with the message that thinner is better. And it is a message that they appear unquestioningly to accept." Id.
180. Keefe, supra note 3, at 6.
181. William H. Dietz, Television, Obesity, and Eating Disorders, in 4 Adolescent Medicine: State of the Art Reviews 543, 547 (Victor C. Strasburger & George Comstock eds., 1993).
182. Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 28 (1st Cir. 1993).
183. See generally Johanna T. Dwyer et al., The Social Psychology of Dieting, in The Psychology of Obesity: Dynamics and Treatment 307 (Norman Kiell ed., 1973) (noting that people tend to accept society's prejudice toward obese persons); Gortmaker et al., supra note 4; Bierman, Comment, supra note 31; see also Hartnett, Note, supra note 18, at 808-14 (noting that obese persons are subjected to serious and widespread discrimination).
184. See Stephen A. Richardson et al., Cultural Uniformity in Reaction to Physical Disabilities, 26 Am. Sociological Rev. 241, 242 (1961).
185. Id.; see also Jeffery Sobal, Sociocultural Aspects of Obesity, in Strategy Development Workshop for Public Education on Weight and Obesity 63 (Dep't Health & Human Servs. Sept. 24-25, 1992). Dr. Sobal observed the following:
In our society, the psychological consequences of obesity include a concern and anxiety about weight that may coincide with "dieting depression," low self-esteem, negative self-image, and hopelessness. Negative social consequences of obesity include stereotyping, stigmatization, social isolation, and discrimination. Such discrimination can affect opportunities in education, employment, promotion, earnings, housing, marriage, and group membership. Id. at 66.
186. See Sobal, supra note 185, at 63.
187. Gortmaker et al., supra note 4, at 1009; see also Sobal, supra note 185 at 66.
188. See generally Arrigo-Ward, supra note 179; Baker, Comment, supra note 1; Bierman, Comment, supra note 31; Hartnett, Note, supra note 18.
189. See, e.g., R. Arlen Price et al., Common Major Gene Inheritance of Extreme Overweight, 62 Human Biology 747, 750 (1990); Stunkard & Sorenson, supra note 178, at 1041 (noting that heredity contributes to a person's weight); see also generally Baker, Comment, supra note 1.
190. See Brief of the Appellee at 31, Cook (No. 93-1093). Both the plaintiff's and the defendant's experts acknowledged that the success rate for morbidly obese persons--the percentage of persons who actually keep weight off--is about 5%. Id. at 31 n.42. The remaining 95%, according to these experts, regain any lost weight within a few years. Id.
191. See supra notes 168-71 and accompanying text.
193. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1095 (D. Haw. 1980) (holding that what constitutes a substantial limitation must be decided on a case-by-case basis).
194. Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993).
195. Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984); see also supra notes 55-57 and accompanying text.
196. See, e.g., Stevens v. Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983) (holding that there is no disability when illness is transitory because such a condition is not substantially limiting).
197. Allowing a case-by-case inquiry without requiring immutability or involuntariness, proves to be a better approach to obesity discrimination claims than other recent decisions. See supra part II.B. For instance, the Cassista v. Community Foods, Inc., 856 P.2d 1143 (Cal. 1993), opinion seems to rest on particularly shaky ground. The Cassista court, rather than attacking the archaic and arbitrary bias that often fuels discrimination against the overweight, relied on cases that concluded that voluntariness is dispositive under section 504. See Cassista, 856 P.2d at 1152 (citing Cook v. Rhode Island Dep't of Mental Health, Retardation, & Hosps., 783 F. Supp. 1569 (D.R.I. 1992); Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984)).
200. See Thomas E. Seguine, Note, What's a Handicap Anyway? Analyzing Handicap Claims Under the Rehabilitation Act of 1973 and Analogous State Statutes, 22 Willamette L. Rev. 529, 548 (1986).
202. 45 C.F.R. § 84.3(j)(2)(iv)(C) (1995). Importantly, the employer must regard the claimant as having a condition that is covered under section 504. See id.; see also Smaw v. Virginia, 862 F. Supp. 1469, 1472 (E.D. Va. 1994). Because there is no requirement that a condition be involuntary or immutable under section 504, an employer regards the claimant as having a condition within the purview of section 504 when the employer perceives the condition to be "an impairment of a continuing nature." Evans v. City of Dallas, 861 F.2d 846, 853 (5th Cir. 1988) (quoting Southeastern Community College v. Davis, 442 U.S. 397, 405-06 n.6 (1979)).
203. Cook, 10 F.3d at 24. Cook presents a better approach to the "perceived disability" claim than the approach employed by the court in Civil Serv. Comm'n v. Pennsylvania Human Relations Comm'n, 591 A.2d 281 (Pa. 1991). See supra notes 39-49 and accompanying text for a discussion of Civil Serv. Comm'n. By requiring that the applicant demonstrate that he or she has an impairment within the definition of Pennsylvania's equivalent of the Rehabilitation Act, the Pennsylvania Supreme Court ignored the broad purpose of the perceived disability provision. See Robin Chodak, Recent Decision, Civil Rights--Handicap Discrimination Law--Pennsylvania Excludes Obesity From Protection Under the Pennsylvania Human Relations Act--Civil Service Commission v. Pennsylvania Human Relations Commission, 65 Temp. L. Rev. 623, 638-41 (1992) (noting that court's reasoning was flawed and perpetuates unfair treatment of obese individuals).
204. School Bd. v. Arline, 480 U.S. 273, 284-85 (1987); see also supra note 30 and accompanying text.
205. See Sobal, supra note 185, at 66; see also supra notes 172-88 and accompanying text.
207. See Dunworth, Note, supra note 31, at 545.
208. See Baker, Comment, supra note 1, at 966.
209. See Dunworth, Note, supra note 31, at 546.
210. See 28 C.F.R. § 35.104 (1995).
211. See Laura Fraser, The Office F Word, Working Woman, June 1, 1994, at 52. Arguments against the protection of obesity on the grounds that society cannot cure every wrong are reminiscent of arguments once used to justify discrimination on the basis of race and gender. Id. The "it's unfair and unfortunate but it's the way things are" approach is simply untenable given the scope of the problem. Id.
212. See supra notes 172-88 and accompanying text.
213. Cook, 10 F.3d at 27 n.11 (citing 45 C.F.R. § 84.12 (1993)); see also supra text accompanying note 20.
214. Baker, Comment, supra note 1, at 966.
215. Id.; see also supra notes 172-88 and accompanying text.
* Dedicated with love to Silvia Monaco Perroni and John Babtista Perroni.