Can your business be sued for not accommodating an individual who is overweight? What about if that individual is obese?
Generally, the answer is “no.” There are no federal laws which specifically prohibit obesity discrimination, but some individuals have argued that their weight can be considered a disability for purposes of the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973.
Recently, Martin Kessman has filed suit against White Castle to test the limits of the ADA because he cannot wedge himself into a seat at his local White Castle. Kessman, who is approximately 290 pounds and admits to being a “big guy,” is claiming that his local White Castle is in violation of the ADA because its seating cannot accommodate an individual of his size. Kessman further claims that he smacked his knee into a metal post while trying to wedge himself into the stationary seating.
The ADA prohibits discrimination based on a disability in the areas of employment, public services, public accommodations, and services operated by private entities, transportation, and telecommunications. To prevail in an ADA discrimination claim, a plaintiff must show, among other things, that he/she has a disability within the meaning of the ADA.
The ADA regulations which address obesity and whether it can be an impairment that qualifies as a disability states that only in rare circumstances will obesity be considered a disability. Further, the EEOC states that being overweight, in and of itself, generally is not an impairment. However, severe obesity, which has been defined as body weight more than 100% over the norm is clearly an impairment.
So, what does this all mean for Mr. Kessman? It is unlikely that he is going to prevail, but he is not alone is his efforts.
Segways required as an accommodation under the Americans with Disabilities Act (ADA) at Disney? Maybe. In a recent ruling in the Ninth Circuit Court of Appeals, Baughman v. Walt Disney World Corporation, the court reviewed the issue of whether Disney is required to permit Segways as an accommodation under the ADA and determined that such an accommodation might be required.
Braughman, who suffers from limb girdle muscular dystrophy, brought suit against Disney after Disney refused to make an accommodation for her under the ADA by permitting her to use a Segway instead of a wheelchair or scooter. Braughman claimed that she needed to use a Segway because using a wheelchair was “impractical, painful, and difficult.” She further claimed that the Segway was necessary because she had difficulty moving from a seated to a standing position.
Disney, as mentioned, refused the accommodation, arguing that the accommodation was not necessary as required by the ADA. Disney further asserted that “necessary” under the ADA “means only one thing: can’t do without,” and because Braughman could use a wheelchair or scooter (both of which are permitted by Disney), the Segway accommodation was not required.
In disagreeing with Disney’s arguments, the Ninth Circuit reasoned that Disney’s position, if accepted, would require very few accommodations under the ADA. “Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.
The court further noted that public accommodations are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons; they only need to make reasonable accommodations. In determining what is reasonable facilities should consider: costs of the accommodations and disruption of their business as well as safety.
The court did not go as far as holding that Disney was required to permit Segways at its parks. It still might be able to exclude them if they can show Segways can’t be operated safely in their parks. Nonetheless, Disney, and other places of public accommodation, will need to evolve their thinking as technology advances and more devices become available for disabled persons which make their experience similar to those of non-disabled persons especially if it wants to remain the happiest place on Earth.