t. 12/23/94
MAF:MM:AMP:jfb

171-39-0

XX
Saint Paul, Minnesota 55104
Dear XX

     This is in response to your request for an official policy
statement by the Department of Justice (the Department) as to
whether the Department considers obesity to be a disability.
While you have not specified the statute you believe to be
applicable to your situation, we have analyzed your question
under the Americans with Disabilities Act of 1990 (ADA). The ADA
prohibits discrimination against persons with disabilities on the
basis of disability by certain private employers (Title I), by
State and local governmental entities (Title II), and in places
of public accommodation and commercial facilities (Title III).
For purposes of convenience we have referred to the provisions of
our Title II regulation in responding to your letter; however,
the analysis would be the same under Titles I and III.

     The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities with rights or
obligations under the Act. This letter provides informal
guidance to assist you in understanding the requirements of the
ADA. It does not, however, constitute a legal interpretation and
is not binding on the Department.

     While the following discussion focusses on the ADA, you
should also be aware that disability-based discrimination is
prohibited by Section 504 of the Rehabilitation Act of 1973, as
amended (Section 504). Section 504 covers both recipients of
Federal financial assistance and the operations of Federal
executive agencies. Our analysis of the questions presented in
your letter is the same under both the ADA and Section 504.

     To be considered a person with a disability under the ADA,
an individual must (i) have a physical or mental impairment that
substantially limits one or more major life activities, (ii) have
a history of such an impairment, or (iii) be regarded as having
such an impairment. See  35.104 of the enclosed Title II
regulation (Definitions).

Records CRS Chrono MAF Morrow
udd.pecht.techasst.XX        .ltr

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     The Title II regulation defines a physical impairment as
          Any physiological disorder or condition,
          cosmetic disfigurement, or anatomical loss
          affecting one or more of the following body
          systems: Neurological, musculoskeletal,
          special sense organs, respiratory (including
          speech organs), cardiovascular, reproductive,
          digestive, genitourinary, hemic and
          lymphatic, skin, and endocrine.

Generally, normal deviations in height, weight, or strength, that
are not the result of an underlying physiological disorder are
not impairments. Thus, simply being overweight is not considered
an impairment. However, at some point, obesity itself may be
considered an impairment. While the point at which this occurs
must be considered on a case-by-case basis, it is generally
accepted that morbid obesity, which is defined as body weight
100% over normal weight, is an impairment. In addition, an obese
individual may have a related physiological disorder, such as
hypertension or a thyroid disorder, that either causes or is
caused by obesity. These physiological disorders are, by
definition, impairments. Thus, an obese individual with such an
impairment or impairments meets this threshold requirement
without need for further inquiry.

     However, it is critical to note that the mere presence of an
impairment, such as morbid obesity, does not necessarily mean
that a person is considered to be a person with a disability
under the Act. Whether an obese individual is considered to be
an individual with a disability depends upon whether the obesity
substantially limits, has substantially limited, or is regarded
as substantially limiting one or more major life activities. See
 35.104 of the Title II regulation. As the Equal Employment
Opportunity Commission (EEOC) notes in the interpretive guidance
to its regulation implementing Title I of the ADA (employment),
"... except in rare circumstances, obesity is not considered a
disabling impairment." 29 C.F.R. pt. 1630 app.  1630.2(j).

     If a person whose obesity is considered a disability under
the ADA is discriminated against on the basis of his or her
disability, that individual is covered by the ADA. But, an obese
individual is not protected by the ADA when that person is
discriminated against on some other basis, such as his or her
appearance. Please note, however, that if an obese individual is
discriminated against by an entity covered by the ADA because
that entity regards the individual as substantially limited in
one or more major life activities, that individual may be
protected by the ADA even though he or she does not have a
substantial limitation. The "regarded as" prong of the
definition of disability is discussed on page 35699 of the Title
II regulation.
01-03558
                                   - 3 -
     There is no Federal law that protects obese individuals from
discrimination on the basis of appearance. Such discrimination
may be protected under State law and we suggest that you contact
the appropriate agency in your State to determine the extent of
the protection offered to obese individuals. You may also wish
to contact the EEOC to request a copy of its Title I Technical
Assistance Manual, which covers issues relating to employment and
contains a copy of the Title I regulation. The EEOC can be
reached at 1-800-669-3362 (voice) or 1-800-800-3302 (TDD).
     I hope this information has been helpful to you.

                         Sincerely,

                    Merrily A. Friedlander
                         Acting Chief
               Coordination and Review Section
                    Civil Rights Division
Enclosure

01-03559

April 5, 1993
Department of Justice
Office of Americans with Disabilities Act
Civil Rights Division
PO Box 66738
Washington, DC 20035-9998

To Whom It May Concern:

I have been advised that your agency has defined obesity as not being a 
disability.

Please provide me with an official policy statement for this decision, 
including the reasons used to make it.

Further, will you please advise me what legal protection a person who is 
overweight and encounters discrimination in an employment or other situation 
is afforded? How would an employer be able to use appearance as a factor in
not hiring, not promoting, or firing an obese employee?

Thank you.

Sincerely,
XX

Saint Paul, MN 55104

01-03560