September 14, 2010

Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful

Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018

Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.

City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.

Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include 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. Section 1630.2(h)]

To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]

According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”

The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].

The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html

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