____________________________________________ Appeal No. 05-3218 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WATKINS MOTOR LINES, INC., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Ohio (Docket No. 02-00505) Hon. Thomas M. Rose Presiding _______________________________________________________ PETITION OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR PANEL REHEARING OR REHEARING EN BANC _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii RULE 35(b) STATEMENT . . . . . . . . . . . . . . . . . . . . .1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . .1 PANEL DECISION . . . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .5 . . . THE PANEL DECISION CONFLICTS WITH THIS COURT'S RULING IN ANDREWS V. STATE OF OHIO. 5 A. This Court in Andrews recognized that morbid obesity can be an impairment within the meaning of the ADA even if it has no known physiological cause. The panel decision holds to the contrary.5 B. This Court in Andrews ruled that the cause of a physiological disorder or condition is irrelevant to whether it qualifies as an impairment. The panel decision holds to the contrary.12 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . .A-1 PANEL DECISION. . . . . . . . . . . . . . . . . . . . . . .A-2 Andrews v. State of Ohio 104 F.3d 803 (6th Cir. 1997). . . . . . . . . . . . . . . .A-3 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . .C-1 TABLE OF AUTHORITIES Cases Andrews v. State of Ohio, . . . . . . . . . . . . . . .104 F.3d 803 (6th Cir. 1997)passim Bragdon v. Abbott, . . . . . . . . . . . . . . . . . . . . . 524 U.S. 624 (1998)13 Cook v. R.I. Dep't of Mental Health, Retardation, & Hosps., . . . . . . . . . . . 10 F.3d 17 (1st Cir. 1993)4, 7, 8, 10, 14 Forrisi v. Bowen, . . . . . . . . . . . . . . . . .794 F.2d 931 (4th Cir. 1986)10 Francis v. City of Meriden, . . . . . . . . . . . . . . . .129 F.3d 281 (2d Cir. 1997)9, 10 Jasany v. U.S. Postal Serv., . . . . . . . . . . . . . . . . 755 F.2d 1244 (6th Cir. 1985)10 Toyota Motor Mfg., Ky., Inc. v. Williams, . . . . . . . . . . . . . . . . . . . . . 534 U.S. 184 (2002)11 Tudyman v. United Airlines, . . . . . . . . . . . .608 F. Supp. 739 (C.D. Cal. 1984)4, 8, 9 Statutes 29 U.S.C. § 701 et seq.. . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12101 et seq.. . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12102(2) . . . . . . . . . . . . . . . . . . . . .11 Legislative History H.R. Rep. No. 101-485(III) (1990), . . . . . . . . . . as reprinted in 1990 U.S.C.C.A.N. 26713, 14 Regulations 29 C.F.R. § 1630.2(g). . . . . . . . . . . . . . . . . . . . .11 29 C.F.R. § 1630.2(h)(1) . . . . . . . . . . . . . . . . . 2, 12 29 C.F.R. pt. 1630 app. § 1630.2(h). . . . . . . . . . .3, 6, 13 29 C.F.R. pt. 1630 app. § 1630.2(j). . . . . . . . . . . . . .11 34 C.F.R. pt. 104 app. A . . . . . . . . . . . . . . . . . . .13 45 C.F.R. § 84.3(j)(2)(i)(A) . . . . . . . . . . . . . . . . .13 45 C.F.R. pt. 84 app. A. . . . . . . . . . . . . . . . . . . .13 EEOC Enforcement Guidance EEOC Compl. Man., Section 902: Definition of the Term "Disability" (rev. 1999), available at http://www.eeoc.gov/policy/docs/902cm.html3, 10-11, 13 Rules Fed. R. App. P. 35(b). . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous Elizabeth E. Theran, "Free to Be Arbitrary and . . . Capricious": Weight-Based Discrimination and the Logic of American Antidiscrimination Law, . . . . . . . . . . . 11 Cornell J.L. & Pub. Pol'y 113 (2001)15 American Heritage Dictionary of the English Language (4th ed. 2000)12, 13 Merck Manual of Diagnosis & Therapy (17th ed. 1999). . . . . .15 Stedman's Medical Dictionary (26th ed. 1995) . . . . . . . . .14 RULE 35(b) STATEMENT The panel in this case ruled that morbid obesity must have a known physiological cause to qualify as an "impairment" within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"). This holding conflicts with this Court's earlier decision in Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997). In addition, the panel decision raises an issue of exceptional importance: Whether, as a general matter, a plaintiff should have to identify the cause of his or her physical impairment to be protected under the ADA. The panel answered this question in the affirmative, even though this Court in Andrews explicitly rejected any such causation requirement. Accordingly, to secure and maintain uniformity of this Court's case law, this case should be reheard by this panel or by the Court en banc. BACKGROUND Steven Grindle worked for Watkins Motor Lines, Inc., as a truck driver and dock worker. EEOC Final Opening Br. ("EEOC Op. Br.") at 4. At all relevant times, he was morbidly obese, weighing around and sometimes over 450 pounds. Id. at 4-5. Grindle does not know of any physiological, psychological, or psychiatric cause for his condition. Id. at 5. Watkins fired Grindle after Watkins's contract physician opined that Grindle needed to lose 200 pounds to be able to perform his job safely – even though Grindle had safely performed his job, while being morbidly obese, for years. Id. at 10-11, 18. The EEOC filed this lawsuit on October 30, 2002, alleging that Watkins violated the ADA by discharging Grindle. R.1. The EEOC's theory was that Watkins terminated Grindle because Watkins "regarded" Grindle as disabled. Id.; R.40. The EEOC argued that Grindle's morbid obesity was an actual physical "impairment" within the meaning of the ADA and that Watkins mistakenly concluded that this impairment prevented Grindle from working. R.40. On December 10, 2004, the district court granted Watkins's motion for summary judgment. R.80. The district court ruled that "obesity, and especially non- physiologically caused obesity, is not an ‘impairment' covered by the [ADA]." Id. According to the district court, because there was no known physiological cause for Grindle's morbid obesity, it could not qualify as an "impairment" within the meaning of the ADA. Id. Therefore, the district court ruled, Grindle was not covered by the ADA. Id. On appeal, the EEOC contended that a physical impairment, for purposes of the ADA, is any "‘physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of [various] body systems.'" EEOC Op. Br. at 30 (quoting 29 C.F.R. § 1630.2(h)(1)). The Commission acknowledged that the term "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.'" EEOC Op. Br. at 31 (quoting 29 C.F.R. pt. 1630 app. § 1630.2(h) (emphasis added)). For this reason, "‘normal deviations in . . . weight . . . that are not the result of a physiological disorder are not impairments.'" EEOC Op. Br. at 31 (quoting EEOC Compl. Man., Section 902: Definition of the Term "Disability" § 902.2(c)(5) (rev. 1999) ("Compl. Man."), available at http://www.eeoc.gov/policy/docs/902cm.html (emphasis added)). Thus one who is merely moderately overweight is generally not deemed to have an ADA impairment. See Compl. Man. § 902.2(c)(5). By contrast, "[a]t extremes . . . deviations [in weight] may constitute impairments." Compl. Man. § 902.2(c)(5) (emphasis added). The EEOC argued on appeal that "‘severe obesity, which has been defined as body weight more than 100% over the norm[,] . . . is clearly an impairment.'" EEOC Op. Br. at 31 (quoting Compl. Man. § 902.2(c)(5) (emphasis added)). When obesity rises to this level, it is no longer a "normal deviation" in weight and no longer simply a physical characteristic. Morbid obesity itself becomes the requisite physiological disorder or condition satisfying the regulatory definition of "impairment." Id. at 31-32. No causative physiological disorder or condition is required. The EEOC argued on appeal that this Court adopted this view in Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997). EEOC Op. Br. at 32-39. There, a group of moderately overweight Ohio state troopers failed a physical examination administered to test their ability to meet a state-imposed weight and fitness standard. Andrews, 104 F.3d at 805-06. The troopers sued under the ADA and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., claiming that Ohio had regarded them as disabled and discriminated against them based on their weight and fitness level. Andrews, 104 F.3d at 806. This Court ruled against the troopers because it held that their weight was not outside the range of normal and was not accompanied by any physiological disorder, and thus was not an impairment within the meaning of the ADA. At the same time, however, this Court recognized that morbid obesity can be an impairment – even if it has no known physiological cause. EEOC Op. Br. at 32-39; see also Andrews, 104 F.3d at 808-10. PANEL DECISION The present panel, in an opinion written by Judge Kennedy, disagreed. The panel stated that in Andrews "we repeatedly emphasized that a physical characteristic must relate to a physiological disorder in order to qualify as an ADA impairment." Slip Op. at 5. According to the panel, Andrews relied on two decisions, Cook v. R.I. Department of Mental Health, Retardation, & Hospitals, 10 F.3d 17 (1st Cir. 1993), and Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984), which "emphasized that to qualify as an ADA impairment a physical impairment must be physiologically caused." Slip Op. at 5. Thus: read in context, it is clear that we did not intend to hold that any abnormal physical characteristic is a potential ADA impairment when we stated [in Andrews] that "[the plaintiffs] have not alleged a status which is the result of a physiological condition or otherwise beyond the range of ‘normal . . . .'" Rather, we simply intended to emphasize [in Andrews] that the plaintiffs' conditions were far from constituting an ADA impairment as, not only were the plaintiffs' conditions not physiologically caused, but they were not even abnormally obese. To interpret the above sentence any other way would suggest that we held that any physical abnormality – for example, someone extremely tall or grossly short – may be [an] ADA impairment. We decline to extend ADA protection to all "abnormal" (whatever that term may mean) physical characteristics . . . . Thus, consistent with the EEOC's own definition, we hold that to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition. Slip Op. at 6. ARGUMENT THE PANEL DECISION CONFLICTS WITH THIS COURT'S RULING IN ANDREWS V. STATE OF OHIO. A. This Court in Andrews recognized that morbid obesity can be an impairment within the meaning of the ADA even if it has no known physiological cause. The panel decision holds to the contrary. We respectfully submit that the panel decision in this case contradicts this Court's binding ruling in Andrews. This Court in Andrews adopted the EEOC's framework for analyzing whether a weight-related condition can qualify as an impairment within the meaning of the ADA. Andrews also recognized that morbid obesity can be an impairment – even if it has no known physiological cause. To be sure, this Court in Andrews did unequivocally state (as the panel decision here indicates) that mere physical characteristics that are not the result of a physiological disorder are not impairments. See Andrews, 104 F.3d at 808. However, this Court included a critical caveat to this general proposition. Citing the EEOC's ADA regulations and interpretive guidance, the Andrews panel held that physical characteristics such as weight "that are within ‘normal' range and are not the result of a physiological disorder" are not impairments. See id. (citing 29 C.F.R. pt. 1630 app. § 1630.2(h) (emphasis added)). Thus, "weight" is a mere physical characteristic – and hence not an ADA impairment – if it is within the range of normal and does not stem from a physiological problem. In other words, one who is moderately overweight does not have an ADA impairment unless this mild obesity stems from some accompanying physiological disorder. Cf. Andrews, 104 F.3d at 810 (a physical characteristic "does not, without more, equal a physiological disorder" (emphasis added)). The crucial corollary, as this Court recognized in Andrews, is that if weight is outside the range of "normal" – as is clearly the case when one is morbidly obese – weight does not have to have a physiological cause to be an impairment. When weight has risen to such an exceedingly abnormal level (for whatever reason), it is no longer a mere physical characteristic. It is instead a disorder or condition that now itself satisfies the regulatory definition of "impairment." In short, the Andrews Court clearly acknowledged two permissible paths for proving a weight-related condition is an impairment within the meaning of the ADA: A plaintiff can show either that weight was within the normal range but caused by a physiological disorder or that the weight was excessively abnormal. See Andrews, 104 F.3d at 808, 810. The Andrews panel found that the troopers suing Ohio could not prevail precisely because they had not alleged: that their weights or their cardiovascular fitness are beyond a normal range, nor have they alleged that they suffer from a physiological disorder (which, for example, has produced excessive weight or lack of fitness despite their individual efforts). The allegations . . . establish only that the officers have certain physical characteristics either being marginally above a weight limit or marginally below a fitness standard which Ohio has deemed inconsistent with the job requirements of certain law enforcement positions. The officers . . . have not alleged a status which is the result of a physiological condition or otherwise beyond the range of "normal."<1> Andrew, 104 F.3d at 810 (emphasis on "nor," "or," and "marginally" added). Despite this clear ruling in Andrews, the panel in this case rejected this framework. The panel ruled that "to constitute an ADA impairment, a person's obesity, even morbid obesity, must be the result of a physiological condition." Slip Op. at 6 (emphasis added). The panel stated that the EEOC, in arguing that Grindle's morbid obesity was an impairment, was relying on one sentence in Andrews and taking it out of context. Slip Op. at 5. According to the panel, the Court "simply intended to emphasize that the plaintiffs' conditions were far from constituting an ADA impairment as, not only were the plaintiffs' conditions not physiologically caused, but they were not even abnormally obese." Slip Op. at 6. But that, of course, is the point. Andrews plainly indicated, as reflected throughout the opinion, that if the plaintiffs' conditions had risen the level where the plaintiffs' were abnormally obese, the conditions would be impairments. Indeed, that the Andrews Court anticipated this result is clear from its emphasis on two permissible paths to proving that a weight-related condition is an impairment. Read carefully, neither Cook nor Tudyman (emphasized by the present panel) compels a contrary interpretation of Andrews. Cook did involve a plaintiff who had presented evidence that her morbid obesity stemmed from "dysfunction of both the metabolic system and the neurological appetite-suppressing signal system." Cook, 10 F.3d at 23. However, the First Circuit in Cook did not require such proof for morbid obesity to qualify as an impairment. While that was the evidence adduced in that case, the First Circuit did not address, much less reject, the position advanced here (i.e., that morbid obesity on its own qualifies as an impairment even if it has no known physiological cause). The court did not consider this argument in Tudyman, either. In fact, the plaintiff there was not obese, much less morbidly obese. And while the Tudyman court noted that the plaintiff's body composition did not result from a physiological disorder, Tudyman, 608 F. Supp. at 746, the court did not rest its finding that the plaintiff had no physical impairment on this ground. Notably, in Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997), the Second Circuit cited Andrews and adopted its (and the EEOC's) framework for analyzing weight-related impairments, reasoning that physical characteristics within the "normal" range and not resulting from a physiological disorder are not impairments. Francis, 129 F.3d at 284, 286. The Court noted that regular obesity "except in special cases where [it] relates to a physiological disorder, is not a ‘physical impairment.'" Id. at 286. Thus: As the Sixth Circuit reasoned in Andrews . . . "[b]ecause a mere physical characteristic [such as moderate obesity] does not, without more, equal a physiological disorder, where an employee's failure to meet the employer's job criteria is based solely on the possession of such a physical characteristic, the employee does not sufficiently allege a cause of action . . . ." Francis, 129 F.3d at 285 (citing Andrews, 104 F.3d at 810 (emphasis added)). However, the Francis Court went on to explain that "a cause of action may lie against an employer who discriminates against an employee on the basis of the perception that the employee is morbidly obese . . . or suffers from a weight condition that is the symptom of a physiological disorder." Francis, 129 F.3d at 286 (citing Cook, 10 F.3d at 25) (emphasis added)). The Francis Court thus clearly approved of the two-path approach to demonstrating a weight-related disorder is an impairment adopted in Andrews. It appears the panel in this case rejected this reading of Andrews because it believed the application of this framework would lead to undesirable results. "Read in context," the panel stated, "it is clear that we did not intend to hold [in Andrews] that any abnormal physical characteristic is a potential ADA impairment." Slip Op. at 6. The panel was troubled by the notion, for example, that "someone extremely tall or grossly short" could be deemed to have an ADA impairment. Id. Yet Andrews actually suggested that abnormal, and particularly extreme, physical characteristics may properly be deemed impairments. Andrews explicitly stated that the "very concept of an impairment implies a characteristic that is not commonplace and that poses for a particular individual a more general disadvantage in his or her search for satisfactory employment." Andrews, 104 F.3d at 810 (quoting Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) (emphasis added)).<2> The present panel's justification for refusing to recognize excessively abnormal physical characteristics as impairments is thus at odds with Andrews. In any event, it bears emphasizing that merely recognizing a condition (like extreme height or weight) as an impairment does not mean the condition is automatically a disability. An individual must have, have a record of, or be regarded as having an impairment that "substantially limits" a "major life activity" before the individual with the impairment will be disabled and thus covered by the ADA. See 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). The present panel's concern about "extend[ing] ADA protection to all ‘abnormal' (whatever that term may mean) physical characteristics," Slip Op. at 6, thus is misplaced. Protection under the ADA is never extended simply because an individual has an impairment alone. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (noting "individuals attempting to prove disability status [cannot] merely submit evidence of a medical diagnosis of an impairment"); Compl. Man. § 902.2(c)(5) ("Whether severe obesity rises to the level of a disability will turn on whether the obesity substantially limits, has substantially limited, or is regarded as substantially limiting, a major life activity."); cf. 29 C.F.R. pt. 1630 app. § 1630.2(j) (only rarely is obesity a disabling impairment). In sum, the panel decision conflates all weight-related conditions as mere "physical characteristics" and refuses to recognize the critical distinction between moderate and morbid obesity. It thus rejects the framework respecting weight- related impairments adopted in Andrews and must be vacated. B. This Court in Andrews ruled that the cause of a physiological disorder or condition is irrelevant to whether it qualifies as an impairment. The panel decision holds to the contrary. The present panel's ruling requires plaintiffs who are morbidly obese – and, it appears, plaintiffs generally – to prove the precise cause of their disorder or condition for it to be an impairment within the meaning of the ADA. See Slip Op. at 5 (emphasizing that "to qualify as an ADA impairment a physical impairment must be physiologically caused" (emphasis in original)). However, nothing in the ADA requires proof of causation for a disorder or condition to be recognized as an impairment. To the contrary, the EEOC's ADA regulations prohibit any such causation requirement. So does this Court's decision in Andrews. As already noted, the EEOC's regulations define physical impairment as "a physiological disorder, or condition . . . ." See 29 C.F.R. § 1630.2(h)(1). In this definition, the word "physiological" obviously modifies "disorder." However, this modifier merely requires that a disorder somehow be characterized as physiological in nature to qualify as an impairment. See American Heritage Dictionary of the English Language (4th ed. 2000), at 1325 (defining "physiological" as "[o]f or relating to physiology" and "characteristic of the normal functioning of a living organism"). The regulatory definition does not necessarily mandate that it have a known physiological cause.<3> In fact, the original source of the EEOC's ADA regulations explicitly states that causation is irrelevant to the impairment inquiry. The EEOC's regulations adopt the definition of impairment found in regulations promulgated by the Department of Education implementing Section 504 of the Rehabilitation Act. See 29 C.F.R. pt. 1630 app. § 1630.2(h). Notably, the appendix to these Department of Education regulations specifically provides that an impairment includes "any condition which is mental or physical but whose precise nature is not at present known." 34 C.F.R. pt. 104 app. A, at 387 (2006) (emphasis added); see also 45 C.F.R. pt. 84 app. A, at 367 (2005) (same);<4> Compl. Man. § 902.2(c)(5) ("The cause of a condition has no effect on whether that condition is an impairment."); cf. H.R. Rep. No. 101-485(III) at 29 (1990), as reprinted in 1990 U.S.C.C.A.N. 267, 452 (the legislative history of the ADA, explaining that "[t]he cause of a disability is always irrelevant to the determination of disability"). This Court adopted this position in Andrews. In Andrews, this Court refused to require that conditions or disorders have a known physiological cause before they could qualify as ADA impairments. As Andrews pointed out, the ADA: contains no language suggesting that its protection is linked to how an individual became impaired, or whether an individual contributed to his or her impairment. On the contrary, the Act indisputably applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, diabetes, cancer resulting from cigarette smoking, heart disease resulting from excess of various types, and the like. Andrews, 104 F.3d at 809 (quoting Cook, 10 F.3d at 24 (emphasis added)). Morbid obesity is a condition that similarly could be voluntarily induced or exacerbated. However, as with alcoholism, AIDS, diabetes, lung cancer, and heart disease, this is irrelevant to whether it is an impairment. Morbid obesity obviously manifests itself as a physiological phenomenon. See Stedman's Medical Dictionary (26th ed. 1995), at 1235 (defining "morbid obesity" as obesity "sufficient to prevent normal activity or physiologic function" (emphasis added)). It thus satisfies the regulatory definition of impairment. There is no need to identify a cause of morbid obesity to properly characterize it as "physiological." In fact, it is unclear whether many plaintiffs could do so. Medical science has not pinpointed the causes of morbid obesity with certainty.<5> Indeed, science has not been able to determine the cause of a number of serious medical conditions (like infertility or cancer) which clearly qualify as impairments. This underscores why, as a practical matter, it makes little sense to require plaintiffs to prove causation before a medical condition can qualify as an impairment. Because the panel decision mandates such causation, it conflicts with the ADA, its legislative history, the EEOC's ADA regulations, and Andrews. The panel decision also may erect significant obstacles to effective enforcement of the ADA in cases involving not just morbid obesity, but other serious diseases or disorders whose cause has not yet been determined. Accordingly, this case should be reheard. Respectfully submitted, RONALD S. COOPER ____________________________ General Counsel DANIEL T. VAIL Attorney VINCENT J. BLACKWOOD U.S. EEOC Acting Associate General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4571 Assistant General Counsel daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on October 26, 2006, I served the requisite number of originals/copies of this petition by sending them via Federal Express overnight delivery to: Office of the Clerk United States Court of Appeals for the Sixth Circuit 540 Potter Stewart U.S. Courthouse 100 E. Fifth Street Cincinnati, Ohio 45202-3988 Katharine C. Weber Susan R. Bell Cors & Bassett LLC 537 East Pete Rose Way Suite 400 Cincinnati, OH 45202-3578 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4571 daniel.vail@eeoc.gov APPENDIX PANEL DECISION Andrews v. State of Ohio 104 F.3d 803 (6th Cir. 1997) *********************************************************************** <> <1> Of course, morbid obesity with a known physiological or psychological cause is an pairment. In such a case, the causative condition might also independently be an impairment. See, e.g., Cook v. R.I. Dep’t of Mental Health, Retardation, & Hosps., 10 F.3d 17, 23, 24 (1st Cir. 1993) (ruling morbid obesity caused by a dysfunctional metabolism was an impairment and that the dysfunctional metabolism itself was also a physical impairment). <2> By contrast, Andrews pointed out, characteristics like average height or strength are not covered by the statute because they are not impairments. See Andrews, 104 F.3d at 810 (quoting Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1249 (6th Cir. 1985)); cf. Compl. Man. § 902.2(c)(5) (a four foot, ten inch tall woman would not have an impairment by virtue of her height alone, since it would be “below the norm” but “not so extreme as to constitute an impairment” (emphasis added)). <3> Judge Gibbons’s concurrence suggests that “physiological” modifies both “disorder” and “condition.” See Slip Op. at 8 (Gibbons, J., concurring). Even if both must be “physiological,” a plaintiff need not prove a physiological cause for either. The only exception is for mere physical characteristics (e.g., weight within the normal range), which are not inherently physiological conditions. Compare American Heritage Dictionary (4th ed. 2000), at 1325 (defining “physical” as “of or relating to the body”) with id. (defining “physiological”/“physiology” as “of or relating to” the study of “the functions of living organisms and their parts”). <4> The panel’s decision and Judge Gibbons’s concurrence both cite 45 C.F.R. § 84.3(j)(2)(i)(A). See Slip Op. at 4-5; id. at 8 (Gibbons, J., concurring); see also H.R. Rep. No. 101-485(III), at 28 (1990), as reprinted in 1990 U.S.C.C.A.N. 267, 450 (endorsing these regulations); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (same). <5> See, e.g., Elizabeth E. Theran, “Free To Be Arbitrary And . . . Capricious”: Weight-Based Discrimination and the Logic of American Antidiscrimination Law, 11 Cornell J.L. & Pub. Pol’y 113, 148-49 (2001) (morbid obesity “is part of the mystery that medical researchers are currently trying to understand”); cf. The Merck Manual of Diagnosis & Therapy (17th ed. 1999), at 59 (obesity’s cause “is elusive” and “not yet fully understood”).