By Bill Wright
A federal district court in Arizona was a little short with an employer seeking to dismiss a disability discrimination claim at the very beginning of a lawsuit. The former employee, who stands 4’ 10”, sued for discrimination and harassment based on various protected statuses. The only status to survive the employer’s motion to dismiss was “disability” under the ADA, based on the employee’s below-“normal” height. The first issue of course was whether her height was an “impairment” under the ADA. The court acknowledged that “[h]eight is . . . not a typical impairment,” but would not go so far as to conclude that height could never, under any circumstances, be a disability. The employer and the plaintiff will have to wait through discovery to see whether the height outside the “normal” range is a disability in this particular instance. McElmurry v. Arizona Depart. Of Agriculture, No. CV-12-02234-PHX-GMS (D. Ariz. June 11, 2013).