TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................... ii

STATEMENT OF INTEREST................................................................ 1

STATEMENT OF THE ISSUES............................................................. 2

PERTINENT STATUTORY AND REGULATORY PROVISIONS...... 2

STATEMENT OF THE CASE

A. Factual Background............................................................... 2

B. Procedural Background.......................................................... 5

ARGUMENT

I. At a minimum, a genuine issue of material fact exists as to whether

Valtierra’s morbid obesity is an ADA “impairment.”.................... 7

A. Valtierra’s morbid obesity qualifies as an “impairment”

under the governing regulation because it is

a physiological disorder or condition that affects

one or more body systems....................................................... 7

B. Neither the statute, regulations, nor guidance requires morbid obesity

to be caused by another physiological disorder in order to

qualify as an impairment........................................................ 13

II. A genuine issue of material fact exists as to whether

Valtierra’s knee condition is an impairment and whether

his morbid obesity and knee condition substantially limit

a major life activity...................................................................... 21

CONCLUSION..................................................................................... 24

CERTIFICATE OF COMPLIANCE..................................................... 25

ADDENDUM

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases Page(s)

Andrews v. Ohio,

104 F.3d 803 (6th Cir. 1997)............................................................ 15

Auer v. Robbins,

519 U.S. 452 (1997)......................................................................... 20

BNSF Railway Co. v. Feit,

281 P.3d 225 (Mont. 2012)............................................................... 15

Christensen v. Titan Distribution, Inc.,

481 F.3d 1085 (8th Cir. 2007) ......................................................... 22

Cook v. State of Rhode Island, Department of Mental Health,

Retardation, & Hospitals,

10 F.3d 17 (1st Cir. 1993)................................................ 11, 14, 17-19

EEOC v. Resources for Human Development, Inc.,

827 F. Supp. 2d 688 (E.D. La. 2011)................................................ 15

EEOC v. Watkins Motor Lines, Inc.,

463 F.3d 436 (6th Cir. 2006)....................................................... passim

Francis v. City of Meriden,

129 F.3d 281 (2d Cir. 1997)........................................................ passim

Hankins v. The Gap, Inc.,

84 F.3d 797 (6th Cir. 1996)............................................................. 16

Hendry v. GTE North, Inc.,

896 F. Supp. 816 (N.D. Ind. 1995).................................................... 16

Lorillard v. Pons,

434 U.S. 575 (1978).................................................................... 19-20

Morriss v. BNSF Railway Co.,

817 F.3d 1104 (8th Cir. 2016))................................................... passim

Siskiyou Reg’l Education Project v. U.S. Forest Service,

565 F.3d 545 (9th Cir. 2009)............................................................ 20

Taylor v. Burlington Northern Railroad Holdings Inc.,

904 F.3d 846 (9th Cir. 2018)............................................. 8, 13, 21-23

Statutes, Regulations, and Rules

29 U.S.C. § 794..................................................................................... 11

Title I of the Americans with Disabilities Act (“ADA”), as amended,

42 U.S.C. § 12101 et seq., ......................................................... passim

42 U.S.C. § 12102(1).................................................................. 1, 2, 6

42 U.S.C. § 12102(1)(A)........................................................... 7-8, 22

42 U.S.C. § 12102(1)(C)..................................................................... 7

42 U.S.C. § 12102(2)(A)........................................................... 7-8, 22

42 U.S.C. § 12102(4)(A)........................................................... 8, 11, 1

42 U.S.C. § 12112(a).......................................................................... 7

42 U.S.C. § 12116.............................................................................. 8

The Americans With Disabilities Amendments Act,

Pub. L. No. 110-325, 122 Stat. 3535, § 42 U.S.C. 12101 note.......... 18

42 U.S.C. § 12101(b)(5) note...................................................... 12, 18

45 C.F.R. § 84.3(j)(2)(i)........................................................................ 11

29 C.F.R. § 1630.2(h)(1)................................................................. passim

29 C.F.R. pt. 1630, app. § 1630.2(h)................................................... 14-16

Federal Rule Appellate Procedure 29(a).................................................. 1

Other Authority

Cambridge Dictionary, available at

https://dictionary.cambridge.org/us/dictionary/english/physiological. 9

Cleveland Clinic, Headaches in Adults, available at

https://my.clevelandclinic.org/health/diseases/9639-headaches-in-adults 16

Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults: The Evidence Report xi (1998), available at

https://www.ncbi.nlm.nih.gov/books/NBK2003/pdf/Bookshelf_NBK2003.pdf

................................................................................................................ 9

EEOC Brief as Appellant in EEOC v. Watkins Motor Lines,

No. 05-3218 (6th Cir.), 2005 WL 6299790 (filed July 18, 2005). 19-20

EEOC Brief as Amicus Curiae in Cook v. State of R.I., Dep’t of Mental

Health, Retardation, and Hospitals,

No. 93-1093 (1st Cir.), 1993 WL 13625007 (filed July 15, 1993) 19-20

EEOC Brief as Amicus Curiae in Taylor v. Burlington N. R.R. Holdings,

No. 16-35205 (9th Cir.), 2016 WL 4191105 (filed Aug. 3, 2016)..... 20

EEOC Brief as Amicus Curiae in Morriss v. BNSF Ry. Co.,

No. 14-3858 (8th Cir.), 2015 WL 1407183 (filed March 23, 2015).. 20

EEOC, 2 Compliance Manual Sec. 902.2(c)(5)(ii),

2009 WL 4782107 (Nov. 2, 2009)............................................... 20-21

I.R.S. Rev. Rul. 2002-19, available at

https://www.irs.gov/pub/irs-drop/rr-02-19.pdf............................... 9-10

Mayo Clinic, Dwarfism: Causes, available at

https://www.mayoclinic.org/diseases-conditions/dwarfism/ symptoms- causes/syc-20371969....................................................................... 16-17

Regulations on Statements Made for Dietary Supplements Concerning the

Effect of the Product on the Structure or Function of the Body,

65 Fed. Reg. 1000, 1027 (Jan. 6, 2000)............................................... 9

Resolution by the AMA House of Delegates Recognizing Obesity

As a Disease, available at

https://studyres.com/doc/913973/american-medical-association-house-of;

see https://www.ama-assn.org/sites/default/files/media-browser/public/hod/a13-resolutions_0.pdf ...................................... 10, 12

SSR 02-01p § C(1), (5), (6), 2002 WL 34686281 (Sept. 12, 2002)....... 10

The Merck Manual of Diagnosis and Therapy, Ch. 6

(Robert S. Porter, MD, ed., 19th ed. 2011)................................ 3, 8, 12

Statutes, Regulations, and Rules

Title I of the Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq. (“ADA”).......................................... passim

42 U.S.C. § 12101(b)(5) note...................................................................

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et seq., which prohibits discrimination against individuals with disabilities. This case concerns the ADA’s definition of “disability,” which includes a “physical or mental impairment that substantially limits one or more major life activities,” id. § 12102(1).

The district court concluded that a plaintiff’s morbid obesity is not an “impairment” within the meaning of the statute and EEOC’s regulations and guidance unless the plaintiff shows that a physiological disorder caused his morbid obesity. As explained below, the district court’s ruling is based on a misunderstanding of EEOC’s regulations and guidance, which impose no such causation requirement and instead impose other requirements that are satisfied by morbid obesity. Unless corrected by this Court, the district court’s error could seriously limit the employment options of individuals affected by morbid obesity and certain other disorders or conditions, and it could also interfere with EEOC’s enforcement of the statute. Accordingly, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

(1) Does the plaintiff’s morbid obesity qualify as a “physical . . . impairment” within the meaning of the ADA, 42 U.S.C. § 12102(1), and its implementing regulations?

(2) Does the plaintiff’s knee condition qualify as a “physical . . . impairment” within the meaning of the same statute and regulations?

(3) If the answer to either question is yes, do the plaintiff’s impairments substantially limit his ability to perform a major life activity, rendering him an individual with a disability?

PERTINENT STATUTORY AND REGULATORY PROVISIONS

Pertinent statutory and regulatory provisions are included in the addendum to this brief.

STATEMENT OF THE CASE

A. Factual Background

Plaintiff Jose Valtierra worked as a Facilities Specialist in the Facilities Maintenance Department at Medtronic (ER:30), a company that manufactures medical devices. ER:404 (admission). A key part of Valtierra’s job involved performing preventive maintenance on “every piece of equipment at Medtronic.” ER:30. Reaching much of this equipment required substantial walking as well as climbing stairs and ladders. ER:31-32.

During his ten years at Medtronic, Valtierra constantly struggled with his weight. In his last few years with the company, Valtierra’s weight hovered from around 340 to around 370 pounds, far in excess of the normal weight for a 5’7” tall man. See ER:273 (360 lbs.); 287 (365 lbs.); 311 (348 lbs.); 317 (350 lbs.). During the same period, Valtierra’s “Body Mass Index,” or “BMI,” was between 56 and 58. See, e.g., ER:303 (2009); 274 (2012). BMI is often used to diagnose obesity, and a BMI of 40 or greater is considered to be “severe” or “morbid” obesity. See The Merck Manual of Diagnosis and Therapy, 59 tbl.6-2 (Robert S. Porter, MD, ed., 19th ed. 2011).

Valtierra’s doctors diagnosed him with morbid obesity, bilateral leg edema, dyslipidemia (cholesterol issues), high blood pressure, insulin resistance, joint pain, depression, and anxiety. ER:297 (“morbid obesity”); 310 (same); 317 (same); see also, e.g., ER:220-26 (other conditions). In addition, Valtierra suffered from chronic pain in his right knee as a result of his weight, torn cartilage, and other issues in the knee. ER:32-33; 273-78 (knee clinic). Doctors concluded that they could not safely repair the torn cartilage — or do gastric bypass surgery, which Valtierra wanted (ER:103) — unless he first lost a substantial amount of weight. ER:33; 196 (gastric bypass surgery); 223; 456; see also ER:276 (knee surgery possible when BMI is under 31). Because of his knee pain and other weight-related issues, Valtierra walked slowly and ponderously, even for short distances, and he had great difficulty climbing stairs or ladders, particularly because he was afraid his knees would “give out,” causing him to fall. ER:31-32.

In the fall of 2013, Valtierra took medical leave so that he could focus on his health issues. ER:32; 190-92. At some point after Valtierra returned, his supervisor, Wayne Duke, began observing that Valtierra was again having trouble walking and climbing. ER:107. For example, he would drive a cart, instead of walking, and use the elevator instead taking of the stairs. ER:107-08. As an accommodation, Valtierra periodically asked Duke not to have him service equipment that would require climbing, and, for the most part, Duke agreed. ER:32-33; 189-90.

After observing Valtierra’s mobility problems, however, Duke decided to investigate whether Valtierra was actually doing his job. ER:109-10; see also ER:376 (Duke memo). Although Duke normally assigned technicians the same equipment, in June 2014, shortly before Valtierra was scheduled to go on vacation, Duke assigned him to service twelve pieces of equipment, many of which, according to Valtierra, required climbing or were unfamiliar. ER:33. As he was leaving for vacation, Valtierra recorded that he had completed all twelve assignments (ER:34), although he had not done so. He stated that he intended to complete the assignments after his vacation (ER:117-18), and he apparently did service two fans on his first night back. ER:34; 201-02.

While Valtierra was on vacation, Duke checked the equipment and determined that Valtierra had not in fact completed the assignments. ER:108-12. On Valtierra’s return, Duke informed Valtierra that he “was being suspended for forgery.” ER:203. Valtierra testified, however, that it was a “common practice” to record the assignments as completed ahead of time where, as he asserted was the case here, the manufacturer’s deadline for performing the preventive maintenance would have passed while he was away. ER:201. Medtronic rejected this explanation and terminated Valtierra. The stated reason for the termination was Valtierra’s “falsification” of company records. ER:478.

B. Procedural Background

Valtierra filed suit under the ADA, arguing that he was disabled because of his morbid obesity and knee condition. Valtierra contended that he was fired because of these disabilities or because he was perceived as having a disability. Valtierra also argued that he was fired in retaliation for requesting accommodations under the ADA. ER:579-88 (Complaint).

The district court granted summary judgment to Medtronic. ER:2. The court first addressed whether Valtierra’s morbid obesity is a “physical or mental impairment that substantially limits one or more major life activities,” 42 U.S.C. § 12102(1), thereby rendering Valtierra an individual with a “disability” under the ADA. Observing that there was “no controlling Ninth Circuit precedent” on point (ER:8), the court concluded that morbid obesity is not a “physical or mental impairment” within the meaning of the statute and its implementing regulations. ER:10.

The district court explained that, “according to the controlling regulation, obesity is not a physical impairment unless it is a physiological disorder or condition and it affects a major body system.” ER:9 (paraphrasing 29 C.F.R. § 1630.2(h)(1)). Relying on decisions issued by the Second, Sixth, and Eighth Circuits rather than on the language of the regulation, the district court then concluded that “a person’s weight . . . qualifies as a physical impairment only if it (1) falls outside the normal range and (2) occurs as the result of a physiological disorder.” ER:10 (citing Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997); EEOC v. Watkins Motor Lines, 463 F.3d 436, 442 (6th Cir. 2006); and Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1108 (8th Cir. 2016)).

Because Valtierra had “neither established nor attempted to establish that his morbid obesity is the result of an underlying physiological disorder,” the court concluded that his morbid obesity was not an “impairment” and thus was not a “disability.” ER:10. Although the court did not explain why it determined that Valtierra’s knee condition was not a “disability,” it did state that “there was no evidence demonstrating a physiological disorder caused him to . . . incur knee pain.” ER:11. The court also determined that Valtierra did not show that Medtronic perceived his morbid obesity to be an ADA “impairment,” thus precluding Valtierra from invoking the protections of the statute applicable to individuals who are “regarded as having . . . such an impairment,” 42 U.S.C. § 12102(1)(C). ER:10-11. Turning finally to Valtierra’s claim that he was fired in retaliation for seeking ADA accommodations, the court ruled that the claim failed because Valtierra’s misconduct in falsifying company records, not retaliation, was the but-for cause of his discharge. See ER:11-13.

ARGUMENT

I. At a minimum, a genuine issue of material fact exists as to whether Valtierra’s morbid obesity is an ADA “impairment.”

A. Valtierra’s morbid obesity qualifies as an “impairment” under the governing regulation because it is a physiological disorder or condition that affects one or more body systems.

Congress passed the ADA to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The statute prohibits employers from discriminating against “a qualified individual on the basis of disability” in many circumstances. Id. § 12112(a). The Act defines “disability” to include (1) a “physical or mental impairment that substantially limits one or more major life activities,” such as walking; and (2) “being regarded as having such an impairment.” Id. § 12102(1), (2)(A). In 2008, Congress amended the ADA to correct what it considered to be an unduly narrow interpretation of the word “disability,” emphasizing that the “definition of disability shall be construed in favor of broad coverage . . . , to the maximum extent permitted by the terms of [the statute].” Id. § 12102(4)(A).

At issue in this appeal is whether the plaintiff has a “physical . . . impairment” within the meaning of the statute and implementing regulations. Although the statute does not define the term “physical . . . impairment,” EEOC has promulgated regulations that define that term to mean “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as . . . musculoskeletal, . . . cardiovascular, . . . digestive, . . . circulatory, . . . and endocrine.” 29 C.F.R. § 1630.2(h)(1); cf. 42 U.S.C. § 12116 (authorizing EEOC to issue regulations interpreting the ADA). Thus, as the district court correctly recognized (ER:9), Valtierra’s morbid obesity — which is defined as having a Body Mass Index of 40 or greater, see The Merck Manual of Diagnosis & Therapy 59 tbl. 6-2 (Robert S. Porter, MD., ed., 19th ed. 2011) — satisfies the regulatory definition of “physical . . . impairment” if it constitutes a “physiological disorder or condition” that “affect[s] one or more body systems.” ER:9. See generally Taylor v. Burlington N. R.R. Holdings, 904 F.3d 846, 850-52 (9th Cir. 2018) (without deciding the question, summarizing statutory and regulatory provisions relevant to determining whether morbid obesity is an impairment under the ADA).

The term “physiological” means “relating to the way in which the bodies of living things work.” Cambridge Dictionary, available at https://dictionary.
cambridge.org/us/dictionary/english/physiological . Morbid obesity is quite plainly “physiological” in nature, and it is also a “disorder or condition” that “affect[s] one or more body systems.” 29 C.F.R. § 1630.2(h)(1). Supporting this conclusion, numerous governmental agencies have concluded that obesity is a “disease.” In 1998, for example, the National Institutes of Health published guidelines stating that “[o]besity is a complex multifactorial chronic disease.” Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults: The Evidence Report xi (1998), available at https://www.ncbi.nlm.nih.gov/
books/NBK2003/pdf/Bookshelf_NBK2003.pdf. Similarly, in 2000, the Food and Drug Administration recognized obesity as a disease. See Regulations on Statements Made for Dietary Supplements Concerning the Effect of the Product on the Structure or Function of the Body, 65 Fed. Reg. 1000, 1027 (Jan. 6, 2000). Then in 2002, the Internal Revenue Service issued a revenue ruling explaining that “[o]besity is medically accepted to be a disease in its own right” and concluding that certain expenses for obesity treatment would qualify as deductible medical expenses. See I.R.S. Rev. Rul. 2002-19, at 3-4, available at https://www.irs.gov/pub/irs-drop/rr-02-19.pdf. And the Social Security Administration determined that obesity is a “complex, chronic disease” that can sometimes, standing alone, qualify as a severe impairment for purposes of evaluating Social Security disability claims, SSR 02-01p § C(1), (5), (6), 2002 WL 34686281 (Sept. 12, 2002).

Similarly, in 2013, the American Medical Association adopted a resolution classifying obesity as a disease. The resolution cites, for example, “an overabundance of clinical evidence to identify obesity as a multi-metabolic and hormonal disease state including impaired functioning of appetite dysregulation, . . . endocrine dysfunction including elevated leptin levels and insulin resistance, . . . dysregulated adipokine signaling, . . . blood pressure elevation, . . . dyslipidemia, and systemic and adipose tissue inflammation.” Resolution by the AMA House of Delegates Recognizing Obesity As a Disease 1 (“AMA Resolution”), available at https://studyres.com/doc/913973/american-medical-association-house-of; see https://www.ama-assn.org/sites/default/files/media-browser/public/hod/a13-resolutions_0.pdf (page 461). The resolution also notes that “[t]he suggestion that obesity is not a disease but rather a consequence of a chosen lifestyle exemplified by overeating and/or inactivity is equivalent to suggesting that lung cancer is not a disease because it was brought about by individual choice to smoke cigarettes.” Resolution 2.

The conclusion that morbid obesity is a “physiological disorder or condition” that “affect[s] one or more body systems” within the meaning of 29 C.F.R. § 1630.2(h)(1) is also strongly supported by the First Circuit’s decision in Cook v. State of Rhode Island, Department of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993). Cook interpreted section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations, 45 C.F.R. § 84.3(j)(2)(i), which are materially identical to the statutory and regulatory provisions at issue here. Addressing the question whether the plaintiff’s morbid obesity was an “impairment,” the First Circuit held that a jury could have answered that question in the affirmative in light of expert testimony that “morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite suppressing signal system, capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems.” 10 F.3d at 23-24.

For all of these reasons, morbid obesity is a “physiological disorder or condition” that “affect[s] one or more body systems” within the meaning of 29 C.F.R. § 1630.2(h)(1). Moreover, any doubt about whether morbid obesity constitutes an “impairment” is resolved by Congress’s directive that the term “disability” “shall be construed in favor of broad coverage . . . , to the maximum extent permitted by the terms of [the statute].” 42 U.S.C. § 12102(4)(A). There can be no question that the Commission’s view that morbid obesity is an “impairment” is “permitted” by the terms of the ADA. See also 42 U.S.C. § 12101(b)(5) note (“the primary object of attention in cases brought under the ADA should be whether [employers] have complied with their obligations,” rather than on questions of coverage).

Valtierra’s medical records show that his doctors regularly diagnosed him as “morbidly obese.” ER:273; 310. Consistent with this diagnosis, at all times pertinent here, Valtierra weighed approximately 340-370 pounds, and his BMI hovered between 56 and 58, far greater than 40, the point at which an individual becomes morbidly obese. ER:274; 303. Valtierra’s doctors also diagnosed him with a variety of medical issues often associated with obesity, including insulin resistance, bilateral leg edema, dyslipidemia (cholesterol issues), high blood pressure, sleep apnea, and joint pain. Compare ER:220-26 (medical records), with The Merck Manual of Diagnosis and Therapy, Ch. 6, 57-58 (Robert S. Porter, MD, ed., 19th ed. 2011); AMA Resolution 3. In addition, Valtierra suffered from severe pain in his right knee associated with torn cartilage that was inoperable at that time due to his obesity. ER:33; 273-78. At a minimum, therefore, Valtierra raised a genuine issue of material fact as to whether his morbid obesity is an “impairment” because it is a physiological disorder or condition that affects various body systems, including musculoskeletal, endocrine, and circulatory.

B. Neither the statute, regulations, nor guidance requires morbid obesity to be caused by another physiological disorder in order to qualify as an impairment.

The district court concluded that, “standing alone,” morbid obesity is not an impairment. Rather, the court held, morbid obesity can be considered an impairment only where, unlike here, a plaintiff establishes that it “results from” another physiological disorder. The court based its decision not on the language of the statute or regulations, nor on any new evidence from the medical community, but rather on flawed decisions by three other courts of appeals — Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997); EEOC v. Watkins Motor Lines, 463 F.3d 436 (6th Cir. 2006); and Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016); cf. Taylor, 904 F.3d at 851-52 (describing these three decisions). The district court’s ruling should be reversed.

1. Most importantly, the conclusion that morbid obesity is an impairment only if a plaintiff establishes that it was caused by another physiological disorder is contradicted by the text of the governing regulation, which does not require a plaintiff to show the cause of his disorder or condition. Instead, a disorder or condition is a “physical . . . impairment” under the regulations as long as it is “physiological” in nature and “affect[s] one or more body systems.” 29 C.F.R. § 1630.2(h). For all of the reasons identified in Section I(A), morbid obesity is plainly “physiological,” and it is also a “disorder or condition” that “affect[s] one or more body systems.” Id.

Supporting this conclusion, the First Circuit explained in Cook that the Rehabilitation Act — which, as noted above, is materially identical to the ADA for purposes of this case — “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.” 10 F.3d at 24. “On the contrary,” the court explained, “the Act indisputably applies to numerous conditions that may be caused or exacerbated by voluntary conduct, such as alcoholism, AIDS, [and] diabetes.” Id.

2. The district court’s decision should be reversed because it is inconsistent with the regulatory text just discussed. In addition, the court’s decision is based on another fundamental error of law — a faulty interpretation of the Commission’s interpretive guidance, 29 C.F.R. pt. 1630, app. § 1630.2(h), that the court lifted from Francis, Watkins, and Morriss. ER:9-10. That guidance explains 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.” 29 C.F.R. pt. 1630, app. § 1630.2(h). Francis, Watkins, and Morriss all interpreted — or appeared to interpret — this passage to mean that a person’s weight is an impairment “only if it (1) falls outside the normal range and (2) occurs as a result of a physiological disorder.” ER:9 (emphasis added). See Morriss, 817 F.3d at 1108-09; Watkins, 463 F.3d at 442-43 (relying on Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997), which interpreted this passage); Francis, 129 F.3d at 286.

This interpretation of EEOC’s guidance improperly reads the word “and” to mean “or.” The guidance explains that the term “impairment” excludes physical characteristics such as weight that “[(1)] are within ‘normal’ range and [(2)] are not the result of a physiological disorder.” 29 C.F.R. pt. 1630, app. § 1630.2(h) (emphasis added). Because the two criteria in the passage are joined by the word “and,” a person’s weight is not an impairment only if both criteria are satisfied. By contrast, if either criterion is not satisfied, weight may be an impairment. See, e.g., BNSF Ry. Co. v. Feit, 281 P.3d 225, 229 (Mont. 2012). Accordingly, where, as here, an individual is morbidly obese, his weight is plainly not within the normal range, and the guidance does not require him to make an additional showing that his morbid obesity was caused by a “physiological disorder.” See also EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

The district court and Morriss also referenced a subsequent statement in EEOC’s interpretive guidance that “[o]ther conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments,” 29 C.F.R. pt. 1630, app. § 1630.2(h). ER:10 (citing Morriss, 817 F.3d at 1109). The reference to “other conditions,” however, does not encompass morbid obesity because obesity is already captured by the earlier sentence addressing “physical characteristics such as . . . height, weight, or muscle tone.” 29 C.F.R. pt. 1630, app. § 1630.2(h) (emphasis added). Rather, by its terms, the sentence addressing “other conditions” was intended to apply to a limited set of conditions like pregnancy that are not caused by a physiological disorder. The sentence did not — and could not, consistent with the language of the regulation — require that all conditions be caused by a physiological disorder in order to qualify as “impairments.”

Significantly, courts have not imposed a similar causation requirement on other conditions, and it would make no sense to do so. For example, although the “exact cause” of migraine headaches is “unknown,” Cleveland Clinic, Headaches in Adults, https://my.clevelandclinic.org/health/diseases/9639-headaches-in-adults, they have been recognized as impairments. See, e.g., Hendry v. GTE N., Inc., 896 F. Supp. 816, 824 (N.D. Ind. 1995) (discussing migraines as impairments); cf. Hankins v. The Gap, Inc., 84 F.3d 797, 801 (6th Cir. 1996) (assuming migraine headaches are a disability but holding that the plaintiff was not qualified because she refused a reasonable accommodation). Similarly, the cause of some dwarfism-related conditions or disorders is “unknown.” See Mayo Clinic, Dwarfism: Causes, available at https://www.mayoclinic.org/diseases-conditions/dwarfism/ symptoms-causes/syc-20371969. Those conditions — which concern “height” — are covered by the same passages in the interpretive guidance discussed above. But it would make no sense to require employers, for example, to provide a stool as a reasonable accommodation for a person with dwarfism where the cause of his condition was known, but to excuse the employer from providing a stool to an otherwise identically situated person merely because the cause of that individual’s disorder was unknown.

3. As explained above, the district court relied mainly on decisions from the Second, Sixth, and Eighth Circuits, which the court apparently considered to be the universe of applicable case law. According to the court, “all” of the appellate courts that have addressed the issue have held that “weight qualifies as a physical impairment only if the individual’s weight (1) falls outside the normal range, and (2) occurs as the result of a physiological disorder.” ER:6-7, 9-10 (citing Morriss, 817 F.3d at 1108; Watkins, 463 F.3d at 442-43; and Francis, 129 F.3d at 286). For all of the reasons identified above, Francis, Watkins, and Morriss erred to the extent they held that a plaintiff must show that his morbid obesity was caused by an additional physiological disorder to establish that his obesity is an “impairment.” To the contrary, morbid obesity, by itself, meets the definition of “impairment.”

The district court’s reliance on this case law was also flawed for several additional reasons. First, the district court ignored the First Circuit’s decision in Cook, which held that a jury could conclude that the plaintiff’s morbid obesity was an “impairment” and did not require the plaintiff to establish that her obesity was caused by another physiological disorder. See Cook, 10 F.3d at 23-24. In addition, although the district court treated Francis, Watkins, and Morriss as fungible, in fact, Francis is different. Unlike the plaintiffs in Watkins and Morriss, the plaintiff in Francis was overweight but not morbidly obese. See Francis, 129 F.3d at 282. In rejecting that plaintiff’s claim, the Second Circuit favorably cited Cook, explaining that “a cause of action may lie against an employer who discriminates against an employee on the basis of a perception that the employee is morbidly obese.” Id. at 286 (emphasis added) (citing Cook, 10 F.3d at 25).

Finally, Francis, 129 F.3d at 286, and Watkins, 462 F.3d at 442-43, predate the 2008 enactment of the Americans with Disabilities Act Amendments Act (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3535. The ADAAA added, inter alia, the statutory provisions discussed above on pages 7-8, 11-12 that state that the term “disability” — which is defined using the term “impairment” — “shall be construed in favor of broad coverage . . . , to the maximum extent permitted by the terms of [the statute].” 42 U.S.C. § 12102(4)(A); see also 42 U.S.C. § 12101(b)(5) note. Even in the Second and Sixth Circuits, therefore, the continued viability of Francis and Watkins is questionable.

Morriss pointed out that whereas Congress used the ADAAA to correct restrictive judicial interpretations of the term “disability,” it did not specifically make any corresponding changes to correct judicial interpretations of the term “impairment.” 817 F.3d at 1111; ER:9-10. Morriss suggested that Congress must therefore have agreed with the pre-ADAAA decisions issued in Francis and Watkins. See 817 F.3d at 1111 (citing Lorillard v. Pons, 434 U.S. 575, 580 (1978)); accord ER:9-10.

But Morriss’s exclusive focus on Francis and Watkins ignored the First Circuit’s contrary decision in Cook, 10 F.3d at 23. In addition, as noted above, Francis suggested that questions pertaining to the coverage of morbid obesity would not be controlled by its decision, which concerned individuals who were merely overweight. Francis, 129 F.3d at 286. Thus, two of the three pre-ADAAA court of appeals decisions addressing the issue (Cook and Francis, but not Watkins) had held or suggested that morbid obesity is an “impairment.” Furthermore, even before the enactment of the ADAAA, EEOC had consistently taken the position that morbid obesity is an impairment under the ADA. See, e.g., EEOC Brief as Appellant in EEOC v. Watkins Motor Lines, No. 05-3218 (6th Cir.), 2005 WL 6299790 (filed July 18, 2005); EEOC Brief as Amicus Curiae in Cook v. State of R.I., Dep’t of Mental Health, Retardation, & Hosps., No. 93-1093 (1st Cir.), 1993 WL 13625007 (filed July 15, 1993); cf. Lorillard, 434 U.S. at 580 (noting that Congress is presumed to be aware of administrative interpretations of statutes). In light of this conflicting pre-ADAAA authority, therefore, Morriss was wrong in assuming that when Congress enacted the ADAAA, it endorsed the view that morbid obesity is not an “impairment” unless it is caused by another physiological disorder.

4. Finally, even if this Court concludes that EEOC’s interpretation of its regulations and guidance is not the most natural one, the agency’s interpretation is entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997); see also, e.g., Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 554-55 (9th Cir. 2009). The agency’s interpretation is, at a minimum, consistent with the regulatory text and is not “plainly erroneous,” and it also reflects the agency’s “fair and considered judgment” on the matter. Auer, 519 U.S. at 461-62 (internal quotation marks omitted).

Indeed, as noted above, the Commission has consistently interpreted the term “impairment” to encompass morbid obesity. See, e.g., EEOC Brief as Amicus Curiae in Taylor v. Burlington N. R.R. Holdings, No. 16-35205 (9th Cir.), 2016 WL 4191105 (filed Aug. 3, 2016); EEOC Brief as Amicus Curiae in Morriss v. BNSF Ry. Co., No. 14-3858 (8th Cir.), 2015 WL 1407183 (filed March 23, 2015); and briefs listed above; see also EEOC, 2 Compl. Man. Sec. 902.2(c)(5)(ii), 2009 WL 4782107 (Nov. 2, 2009) (“severe obesity, which has been defined as body weight more than 100% over the norm, . . . is clearly an impairment” (citation omitted)).[2] Furthermore, this Court has already suggested that the EEOC’s interpretation of the regulatory text and guidance at issue here may be entitled to deference. See Taylor, 904 F.3d at 850-51, 853 (not deciding whether morbid obesity is an impairment under the ADA).[3]

II. A genuine issue of material fact exists as to whether Valtierra’s knee condition is an impairment and whether his morbid obesity and knee condition substantially limit a major life activity.

Finally, the district court erred in holding — without any analysis — that Valtierra’s chronic knee condition was not an “impairment” within the meaning of the ADA and its implementing regulations. Valtierra’s medical records indicate that he suffered severe pain in his right knee associated with torn cartilage that was inoperable due to his obesity. ER:32-33, 272-78. This pain was aggravated by the weight he put on his knee when walking and climbing. ER:32-33; 189-92. Viewed as a whole, this evidence supports a finding that Valtierra’s knee condition is also a physiological disorder or condition that affects various body systems, including musculoskeletal and circulatory. That condition therefore fits comfortably into the regulatory definition of “impairment.” See 29 C.F.R. §1630.2(h)(1); cf. Christensen v. Titan Distrib., Inc., 481 F.3d 1085, 1094 (8th Cir. 2007) (jury could find plaintiff’s knee injury, which limited his ability to do much walking, standing, bending, or stooping, was an impairment and disability).

Furthermore, a genuine issue of material fact exists as to whether Valtierra’s impairments substantially limit a major life activity, in which case he is an individual with a disability. See 42 U.S.C. § 12102(1)(A) (“disability” includes “a physical or mental impairment that substantially limits one or more major life activities”). After passage of the ADAAA, the “threshold issue of whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 1630.2(j)(1). As noted above, the evidence in the record strongly suggests that the pain Valtierra experiences as a result of his knee condition and his morbid obesity contributes to the difficulty he has when walking and climbing. See, e.g., ER: 31-32 (stating, e.g., climbing is “extremely painful” and that his knees give out); ER:274-78 (clinical findings); see 42 U.S.C. § 12102(2)(A) (listing “walking” as a major life activity in a non-exhaustive list). A genuine issue of material fact therefore exists as to whether Valtierra’s morbid obesity and knee condition substantially limit a major life activity. Cf. Taylor, 904 F.3d at 852 (noting that passage of ADAAA “broadened the definition of a ‘disability’” by lowering the threshold for showing an impairment “‘substantially limit[s] a major life activity’”). Accordingly, the district court’s ruling that Valtierra does not have an impairment or disability should be reversed.

CONCLUSION

For the foregoing reasons, the judgment should be reversed in part.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street N.E., 5th Floor

Washington, D.C. 20507

tel: (202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 5,104 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 32(f). This brief also complies with the typeface and typesize requirements of Fed. R. App. P. 32(a)(5) and. 32(a)(6) because it has been prepared using Microsoft Word 2016 in a proportionally spaced typeface, Times New Roman 14-point font.

s/Barbara L. Sloan

BARBARA L. SLOAN

Attorney for EEOC

Dated: November 13, 2018

ADDENDUM

PERTINENT STATUTORY AND REGULATORY PROVISIONS

THE AMERICANS WITH DISABILITIES ACT (excerpt)

42 U.S.C. § 12102, Definition of Disability

As used in this chapter:

(1) Disability

The term “disability” means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major life activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

. . .

(4) Rules of construction regarding the definition of disability

The definition of “disability” in paragraph (1) shall be construed in accordance with the following:

(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.

(B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

29 C.F.R. § 1630.2(h)(1)

(h) Physical or mental impairment means —

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine . . . .

Interpretive Guidance on Title I of the ADA, 29 C.F.R. pt. 1630, app.

§ 1630.2(h) (excerpt)

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of 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. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. However, a pregnancy-related impairment that substantially limits a major life activity is a disability under the prong of the definition.

ADA AMENDMENTS ACT OF 2008, PL 110–325, September 25, 2008, 122 Stat 3553, 42 U.S.C. § 12101 note

SECTION 1. SHORT TITLE.

This Act may be cited as the “ADA Amendments Act of 2008”.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—Congress finds that—

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage;

. . .

(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;

. . ..

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term “substantially limits” as “significantly restricted” are inconsistent with congressional intent, by expressing too high a standard.

(b) PURPOSES.—The purposes of this Act are—

(1) to carry out the ADA's objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;

. . .

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and

(6) to express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.

[1] The Commission takes no position on any other issue in the case.

[2] EEOC’s Compliance Manual is a resource for EEOC investigators. Section 902 of the Compliance Manual covers the definition of the term “disability.” EEOC removed Section 902 of the Compliance Manual from its website because the ADAAA and implementing regulations superseded portions of Section 902’s analysis. See http://www.eeoc.gov/policy/docs/902cm.html. The Compliance Manual’s reasoning remains instructive, however, where, as here, it does not conflict with the amended ADA.

[3] The district court’s error in construing the term “impairment” also infected its analysis of Valtierra’s claim that he was perceived as having a disability. See ER:10-11. The district court’s judgment on that claim should therefore also be reversed.