Barbara Joy McElmurry worked for the Arizona Department of Agriculture. In a Complaint she filed in federal court, she alleged that her supervisor forced her into a field work position in which she would not be able to drive vehicles because she was too short (4’10”). So, McElmurry asserted a claim for discrimination on the basis of disability, namely, her short stature.
So, could height (or lack thereof) be a disability?
Well, under the Americans with Disabilities Act, a person is disabled if she suffers from “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” An employer could also regard an employee as disabled, even if she isn’t; that too would bring the employee within the scope of the ADA.
Thus, the Court addressing Ms. McElmurry’s ADA claim on the employer’s motion to dismiss, concluded (here) that she may have a valid ADA claim:
McElmurry, however, has alleged that her height is outside the normal range. She stands around 4’10″…It is plausible that “short stature” could, in some contexts, “substantially limit[ ] one or more of the major life activities of an individual.”
Consequently, the Court denied the defendant’s motion to dismiss the ADA claims.
We’ve already seen weight can be a disability. So, I suppose it’s only fitting that height too may be an issue. Of course, as the Court noted, an employer may prefer taller employees without regarding the short ones as disabled:
An employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment–such as one’s height, build, or singing voice–are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.
While employer preference may not create a regarded-as claim, the expansive nature of the recent amendments to the Americans with Disabilities Act render just about any borderline “disability” an actual disability. Ultimately, employers need to be aware of obvious and the not-so-obvious conditions that may qualify as a “disability” under the Act.