Attorney Harrison Oldham

A case pending before the Texas Supreme Court could make Texas the latest state to utilize state and federal disability law to legislate discrimination protections for obese workers. The case is Texas Tech University Health Sciences Center – El Paso, v. Dr. Niehay, and the Texas Supreme Court heard oral arguments on February 21st.

As background, the case revolves around Dr. Niehay, a first-year medical resident who alleges she was illegally fired from Texas Tech University Health Sciences Center because of her obesity, a category she said is covered as a disability under state law.

The state of Michigan and a handful of cities across the US are the only jurisdictions that explicitly protect obese workers from discrimination. However, some states are considering legislation to ban weight discrimination at work. In court, plaintiffs in virtually every other jurisdiction argue, similar to Dr. Niehay, that the Americans with Disabilities Act (or its state equivalent) protect their obesity as a disability.

Disability Argument

According to the suit, in 2016, Dr. Niehay was fired after her supervisors questioned her ability to perform physically challenging procedures following an incident in which she was sweating profusely and had to take breaks while working on a patient at Texas Tech’s Department of Emergency Medicine.

Moreover, according to her testimony, at the time of termination, Dr. Niehay weighed approximately 400 pounds, which created issues for carrying out her duties according to Texas Tech. Additionally, in December 2015, an internal email said that while attempting to perform a task, Dr. Niehay “really struggled and I blame it primarily on her habitus.” (Body habitus is the human body’s build, physique, and general shape.)

In response, Dr. Niehay argues that her obesity is a medical condition that should be considered a disability under the Texas Commission on Human Rights Act.

However, Texas Tech also identified several other performance issues. For example, one alleged incident reported that in January 2016, Dr. Niehay caused a delay in performing a central line procedure.  When another attending physician asked Niehay what the reason for the delay was, she “responded (while she ate Doritos) that she was waiting for the nurse to get the central line kit.”

The emails presented by Texas Tech reveal other issues, such as Niehay allegedly not following proper note-taking and reporting procedures, recommending care without proper evaluation of the patient, and “attending to personal business on her phone rather than helping out with patients.” Dr. Niehay also allegedly wrote herself a prescription for metoprolol, a blood pressure drug that was prescribed to her by a physician. She did log the prescription into the system, but did not seek faculty supervision as allegedly “she was unaware of that requirement.”

Despite this, before making its way to the Texas Supreme Court, the Texas Court of Appeals, Eighth District, agreed with Dr. Niehay, saying in its February 2022 opinion that obesity, even without an underlying medical cause, falls under the definition of a disability in the TCHRA, which is a mental or physical impairment that limits at least one major life activity.

BNSF filed an amicus brief in Niehay’s case to support Texas Tech, saying that a ruling upholding Niehay’s win would threaten the BMI standard it imposes for “safety-sensitive” jobs. The railway giant noted that, unlike other states, Texas’ TCHRA isn’t more stringent than the ADA, which federal courts have generally ruled doesn’t cover obesity alone.

EEOC and the Courts Disagree

At least three federal appellate courts have found that obesity can only qualify as an “impairment” under the ADA if it results from an underlying medical condition, such as hypertension or a thyroid disorder.

In 2019, the US Court of Appeals for the Seventh Circuit found in Richardson v. Chicago Transit Authority that obesity alone doesn’t constitute a disability under federal law, which aligns with other appellate rulings. That case involved a driver for the Transit Authority who was fired from his job in 2012 after the authority conducted a “special assessment”. It concluded that he couldn’t turn the steering wheel correctly or keep his foot from simultaneously pushing the brake and gas pedal.

On the other hand, the EEOC has pushed courts to adopt a different view that obesity should be considered a disability. For example, in 2016, the EEOC told the Ninth Circuit that obesity alone is an impairment and a worker shouldn’t be required to prove they have an underlying condition. Specifically, the EEOC argues that morbid or extreme obesity alone is an impairment because it implies the person’s weight is beyond “normal” ranges.

We will provide an update once the court releases its decision.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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