« Duke Law Journal Vol. 57 Issue 4 (February 2008) | Main | The Life Aquatic. »
May 16, 2008
Is Height over 6'5" a Disability?
I'm happy to see that some airlines and hotels are trying to help the "tall traveler:"
[T]he bigger seat pitches in domestic economy class — 34 to 36 inches — are on United, JetBlue, Delta Air Lines’ McDonnell Douglas MD-88 shuttle, Air Canada and Westjet. Since a seat pitch of only 29 to 30 inches is found in most airlines’ economy class, this is no small potatoes.
Recently, JetBlue reconfigured its planes to sell seats with 38 inches of seat pitch in six rows on its A320 fleet and the emergency exit row in its Embraer 190 planes for an extra $10 or more. (JetBlue’s other seats with up to 36 inches of seat pitch in certain rows, have no extra fee.)
Could extreme height ever be deemed a disability under the ADA? There is some hope from the obesity case law:
In a 1993 case arising out of Rhode Island, for example, the federal court concluded that, although simple obesity probably would not qualify, morbid obesity caused by a physiological disorder would be a disability entitling the plaintiff to ADA protection. The court's finding was premised on the fact that the disorder was permanent, and that the claimant's weight gain was not meaningfully voluntary. A 1997 decision of the federal district court in New York agreed that morbid obesity could be a qualifying disability, although it denied the plaintiff's claim because she could not demonstrate that her obesity substantially limited her ability to work.Apparently the EEOC has said that "only morbid obesity, defined as weighing 100 pounds or more over ideal weight, can be an impairment shielded from bias." From a statistical perspective, my sense is that height over 6'5" is at least 2 standard deviations from the mean of height. . . I wonder if that's more or less SDs than 100 pounds over ideal weight? It's not my area of law, but I have to admit a bit of a personal interest in seeing more accommodation of the tall.
Hat tip: Law & Letters.
Posted by Frank Pasquale at May 16, 2008 09:16 PM
Trackback Pings
TrackBack URL for this entry:
http://www.concurringopinions.com/movabletype/mt-tb.cgi/3666.
Comments
To be a disability under ADA, plaintiff would have to show that the condition interferes with one or more "major life functions." I'm not sure that being put in some discomfort while riding on airplanes would qualify. I don't mean to trivialize the issue, but courts have been pretty strict as to what qualifies as a "disability." And in this regard, I think height is distinguishable from morbid obesity.
Posted by: Joseph Slater at May 17, 2008 10:55 AM
I was afraid of that! But it would seem like there must be at least some level of height that would be as bad as morbic obesity.
It does seem like a situation some regulation should address--it would seem a pretty simple matter to require provision of at least a few seats for the extra-tall each flight--with the airline having the right to charge more to the extent these seats reduce capacity on the plane.
Posted by: Frank at May 17, 2008 01:18 PM
Airlines appear to be exempt from the ADA anyway, even as to obese customers.
From Southwest's website: http://www.southwest.com/travel_center/cos_qa.html
Interstate airline travel is specifically excluded from Title II of the Americans with Disabilities Act (ADA) by Section 12141(2). Airline travel is instead covered by the Air Carrier Access Act, 49 U.S.C. 1374(c) and the regulations implementing the Act issued by the Department of Transportation as 14 CFR Part 382, et seq. The Air Carrier Access Act (ACAA) preceded the ADA, and Congress excluded air carriers and other air transportation services from the scope of ADA. As regulated under 14 CFR §382.38 Seating accommodations (i) "Carriers are not required to furnish more than one seat per ticket or to provide a seat in a class of service other than the one the passenger has purchased."
Posted by: David at May 19, 2008 12:44 PM
First I think that it's an absolute waste for the government to be stepping in and regulating in situations where people should be dealing with them on their own. However, I would attempt to make the case (I am 5'10" so not in that category), that extreme height is more of a disability than obesity. If you are obese and can't fit in an airplane seat, then you need to start losing weight. Unless you have a thyroid problem, it's your eating too much/not exercising problem that you need to deal with. Someone who is 6'10" didn't chose to be that height, it was completely out of their hands.
Posted by: Dan at May 20, 2008 07:04 AM
Well, I suppose arguably it impairs a "major life function" if, for example, it has an effect on mobility besides in the airplane. As a hypothetical, consider the case of someone who is not only quite tall but also has very large feet, and is constantly bidden by his family to carry heavy boxes up and down a long and narrow staircase - which could lead to a trip, breaking of bones, reduced ability to perform speedily on law school exams . . .
Posted by: Peter at May 22, 2008 01:28 PM
