The Americans with Disabilities Act (ADA) seems to be expanding its definition of “disability.” Just last month, the American Medical Association voted to re-classify obesity from a condition to a disease. As such, obesity – even perceived disability – likely constitutes a disability entitled to protection from discrimination under the ADA.
As the ADA’s definition of disability continues to expand, what other physical characteristics are likely protected as a disability and thus been deemed protected from harassment or discrimination? Is being a short a disability? Let’s take a look at the facts of McElmurry v. Arizona Dept. of Agriculture.
In that case, the plaintiff, Barbara Joy McElmurry, was employed as a lab technician for the defendant, the Arizona Department of Agriculture. After a disagreement with her supervisor, Mary Garman, McElmurry was demoted from the position of lab technician to field work. McElmurry protested the demotion, arguing that at 4’10,” she is too short to drive the vehicles necessary to perform field work. Garman, however, forced the demotion upon McElmurry without any accomidation. McElmurry was subsequently injured while performing her field work duties, and Garman terminated her.
McElmurry filed a lawsuit against the Arizona Department of Agriculture. In her complaint, McElmurry asserted a claim for disability discrimination, contending that the ADA protects her shortness of stature. The district court denied Arizona’s motion to dismiss McElmurry’s disability discrimination claim, holding:
McElmurry, however, has alleged that her height is outside the normal range. She stands around 4’10.” The Department has claimed that height can never be a disability…. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that “short stature” could, in some contexts, “substantially limit[ ] one or more of the major life activities of an individual.”
As a disclaimer, this opinion should not be read to suggest that height is always a disability protected by the ADA. However, as McElmurry makes clear, in certain limited circumstances, height – if “outside the normal range” – can constitute a disability within the meaning of the ADA. The key to this decision is that it takes away – or at the very least, hinders – the ability of defendant employers to get the case dismissed as a matter of law before it reaches a jury. This is critical as the higher the probability that a case will reach a jury increases the settlement value of the case.
If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disables employees’ rights under ADA and Ohio law.
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