Fashion models, eating disorders, and the Americans with Disabilities Act

Posted by Charles Colman

I didn't want to blog about this until after New Year's, as the story prompting the following discussion is very sad. But as you have probably read by now, French model and actress Isabelle Caro recently passed away after a long battle with anorexia.


I don't intend to use this blog to rehash the debate about whether our culture should or shouldn't fixate on models who represent an "unattainable" level of thinness. However, Ms. Caro's tragic passing is likely to reignite the controversy about what, if anything, the fashion industry should do about eating disorders among models.


One well-meaning but legally problematic proposal that was thrown around several years ago was to require models to produce, essentially, a doctor's note in order to participate in runway shows. This proposal did not become reality, at least for Fashion Week in London, where the idea appears to have been most seriously considered.


As with the "right of publicity" discussed in LOF's previous post, many readers may have an intuitive sense that there is "something wrong" with requiring such documentation as a prerequisite for employment (albeit a various glamorous form of it.) That "something wrong," LOF submits, is possible liability under the Americans with Disabilities Act. (As in previous posts, I'm assuming the relevant conduct takes place within U.S. borders.)


In a 2008 law review article, one author found that "not one court in the United States has found anorexia or any other eating disorder to be protected under the [ADA]." But LOF's examination of the cases cited by the article's author revealed that the plaintiffs who had alleged ADA violations in these cases had failed to make the necessary evidentiary showings, not that any court had declared eating disorders -- as a group of conditions -- to be somehow disqualified from coverage under the ADA. To the contrary, the Ninth Circuit Court of Appeals' opinion in Frank v. United Airlines suggests that a serious, chronic eating disorder might very well meet the ADA's requirement that a qualifying disability "substantially limit major life activities" such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." In Frank, the plaintiffs had "not presented evidence that their eating disorders have that effect," but this only means plaintiffs in future cases will be especially careful to produce additional supporting evidence.


In any event, the states have their own "mini-ADAs" that are often less stringent than the federal statute. To cite an example of obvious significance, New York's mini-ADA does not impose any "substantially limits" requirement on plaintiffs with claimed disabilities.


If a plaintiff can show that his/her eating disorder is a "disability" under the relevant statute, whether state or federal, then conditioning employment on a doctor's stamp of "no anorexia" becomes legally perilous. Why? The ADA (and probably most state-law equivalents) provides that "an employer cannot ask you [as a job applicant] if you are disabled or ask about the nature or severity of your disability", and "cannot require you to take a medical examination before you are offered a job".


To be sure, there are other requirements that a plaintiff would have to satisfy to prevail against a would-be employer asking for a doctor's "no eating disorder" letter. For example, the ADA covers only employees, and not "independent contractors". But in making this determination, courts look at various factors, on a case-by-case basis; this is not an exercise any party engaged in hiring (including labels or producers hiring models on a one-time-only basis) would want to take part in. Another escape hatch from ADA liability is a successful showing that the disability-related inquiries are "job-related and consistent with business necessity," but it's difficult to imagine an attorney invoking this exception to liability without failing "the giggle test".


One alternative proposal to medical certification, which was actually adopted by the organization in charge of Madrid's Fashion Week, is to simply ban models with body mass indices ("BMI") of less than a certain number. While this might alleviate concerns about liability for requiring medical examinations, the practice could still violate the ADA (or state-law equivalents) for various reasons, including if the ban has a so-called "disparate impact" on individuals with qualifying disabilities. Ask yourself: how could a BMI minimum not have a disparate impact on individuals with eating disorders? FYI, disparate impact claims entail a sort of call-and-response between plaintiff and defendant: upon a plaintiff's so-called "prima facie" showing of disparate impact, the employer has to provide a "neutral" (i.e., non-disability-related) reason for the challenged policy. Since proposals to impose BMI minimums have been quite explicitly based on concerns about eating disorders, an employer would be hard-pressed to provide a legitimate, neutral reason for such a policy.


In short, while eating disorders among models present a very serious problem meriting the attention of the fashion industry and public alike, the proposals that have been floated so far for remedying the situation carry significant legal risk-- regardless of whether these proposals are "good policy" or raise moral concerns.