Among other claims, McElmurry sued her ex-employer for disability discrimination, claiming that the ADA protects her shortness of stature.
In McElmurry v. Arizona Dept. of Agriculture (D. Ariz. 6/11/13), the district court refused to dismiss the disability discrimination claim, concluding that McElmurry had stated enough in her complaint for her disability discrimination claim to proceed to discovery:
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."Typically, height is not a disability protected by the ADA. As this case illustrates, however, the ADA (as amended in 2009) is now sufficiently broad such that an employee can plausibly argue that a host of normal physical characteristics can become protected disabilities if they fall "outside the normal range." This case concerns height. But, it is not a stretch for one to imagine similar claims of discrimination based on other typical characteristics that fall outside the norm—weight, for example.
This case is a perfect illustration of how dangerous the ADA has become for employers, and how carefully businesses must tread when dealing with any physical or mental condition.
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