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 01-03557​ -2The 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 -3There 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