A study released by the Center for Disease Control in August 2012 estimates that 32 percent of adults in Alabama are obese. Alabama regularly appears in the Top Five of the list of “heaviest states,” currently weighing in at fourth (behind Louisiana, Mississippi, and West Virginia). Though several initiatives issued by the Alabama Department of Public Health and even private insurers are aimed at combating the epidemic of obesity, the number of overweight adults in the state has not fallen significantly. The consequences and costs of this health issue are well-known and often-studied, and they include increases in medical conditions like diabetes, heart disease, and stroke, which in turn lead to reduced productivity and elevating health care costs. On top of these known costs, an additional issue of potential risk arises when this growing public health epidemic is read in the context of the Americans with Disabilities Act (“ADA”).

The ADA, passed in 1990, makes it illegal for an employer to discriminate against Americans suffering from a disability.3 The ADA's protections were significantly narrowed by several U.S. Supreme Court cases, until Congress passed an amendment in 2008 that explicitly overturned the precedent and broadened the definition of what it is to be "disabled" under the statute. Because the amendments have only been applied to employment actions that occurred after January 1, 2009, case law discussing them is still scarce, and case law applying them specifically in the context of obesity is almost nonexistent. However, a couple of federal and state courts recently addressed the obesity issue, and the resulting opinions imply that a change is nigh. Under the pre-amendments ADA, the courts would generally not view an obese person as disabled unless he or she had some other underlying condition that caused the obesity. The amendments in effect lower the plaintiff’s burden in ADA cases, and so now several jurisdictions are encountering – and sometimes embracing - the theory that the amended ADA now covers obesity as a disability on its own, without inquiry into any underlying conditions. This new look at obesity-as-disability is still developing, but it has the potential to ramp up employer exposure to a wide array of claims based solely on an employee’s overweight.