Plaintiff's short physical height was not a disability under the Americans with Disabilities Act

This employment discrimination plaintiff argues that the Americans with Disabilities Act makes it illegal to discriminate against an employee because of her short height. The Court of Appeals rejects that argument, further holding that no jury can find she was harassed and terminated in retaliation for requesting a reasonable accommodation.

The case is Morey v Windsong Radiology Group, a summary order issued in December 12. Plaintiff wanted a reasonable accommodation because of her height. To proceed with her claim, plaintiff has to show she has a "disability" under the ADA. A disability is defined under the Act as a "physical or mental impairment that substantially limits one or more major life activities." Major life activities include, among other things, caring for oneself, performing manual tasks, sitting, lifting, bending, concentrating, working, and thinking." But not every impairment will constitute a disability.

While plaintiff says her unusually short height is a physiological, musculoskeletal condition which substantially limits one or more major life activities, the only limitation she alleges in the complaint is she cannot "see or reach" certain equipment at work, a medical office. But, as Judge Lynch stated when he was a district court judge, "a person's height is not ordinarily an 'impairment' covered by a disability by the ... ADA." Gowins v. Greiner, 2002 WL 1770772 (SDNY 2002). Since plaintiff does not sufficiently detail how her condition substantially limited any major life activity, the Second Circuit (Parker, Sullivan and Failla [D.J.]) says she cannot sue her employer for not providing a reasonable accommodation.

Plaintiff also says she was harassed for requesting the reasonable accommodation. She stated in her complaint that she was given a stool to operate a fluoroscope machine, and that she did not request any other accommodation. While she had additional trouble administering certain examinations at work, and she therefore sought another accommodation, the complaint does not identify what that accommodation was or how it was conveyed to management. And, at oral argument, plaintiff's lawyer conceded that operating that machine was an essential job function. This means that having someone else operate the machine would not be a reasonable accommodation, such the ADA does not require the employer to remove an essential job function as a means to accommodate a disabled employee.