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On an Issue of First Impression, CMP Persuades the Federal Court that Short Stature, Alone, is Not a Disability under the ADA

CMP attorneys T. Kelly May and H. Cannon Lawley successfully obtained dismissal of a plaintiff’s Americans with Disability Act (“ADA”) claims alleging that her height was a qualifying disability. The 4’6” plaintiff was sent by a temporary employment agency to fill an assembly line position for the defendant automotive component part manufacturer. The plaintiff alleged that she was unable to do the job because the assembly line work surface was too high for her to reach. Because the defendant perceived that plaintiff’s height presented safety and ergonomic issues in her being assigned to work on the assembly line, and there were no alternative positions available, the defendant declined to retain her services and notified the employment agency that plaintiff was no longer needed.

Through counsel, plaintiff filed suit claiming that her dismissal constituted disability-based discrimination and violated several provisions of the ADA. CMP responded to the plaintiff’s complaint raising a number of arguments in support of the dismissal of all claims against the defendant. Chief among these was the argument that plaintiff could not make the threshold showing of a qualifying disability, as required to invoke the protections of the ADA. Although the question of whether an employee’s height qualified as a disability under the ADA was an issue of first impression in the Eleventh Circuit, CMP presented aruments and analysis contending that even after the 2008 amendments to the ADA, there remains a fundamental distinction between a physical characteristic and a physical impairment required to establish a qualifying ADA disability. Specifically, the defendant’s position was that height only falls within the scope of the ADA’s protections if is the result of a diagnosed physiological disorder or condition.

The Federal District Court agreed with CMP’s arguments and entered an opinion unequivocally declaring that short stature alone does not qualify as a physical impairment entitled to protection under the ADA. Tracking CMP’s arguments, the Court concluded that for a physical characteristic to be elevated to the level of a protected “‘physical impairment’ requires (a) some typeof disorder or pathology of the body that (b) affects one or more body systems.” The Court expressly adopted CMP’s position “that merely being of short stature is not a disability under the ADA,” and declared that “the Court refuses to read the ADA to elevate a physical characteristic – even if it is outside the normal or average range of individual variation – to the status of a ‘disability,’ unless the atypical characteristic results from a physiological disorder.”