December 11, 2019

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The ADA Does Not Cover the Possibility of Future Disabilities

The Seventh Circuit Court of Appeals recently ruled that the American with Disabilities Act (“ADA”) does not protect an applicant who later may become impaired. In this instance, a worker applied for a position that would have required him to perform “safety-sensitive” tasks. After he was extended a conditional offer of employment, Plaintiff was required to pass a medical evaluation. Defendant, as a matter of course, does not hire applicants for safety-sensitive position if their body mass index (“BMI”) is over 40. Defendant reasoned that applicants who exceed BMI levels are at a substantially higher risk of developing certain conditions that can result in incapacitation on the job. Plaintiff’s BMI was 47.5.

Plaintiff filed suit asserting that the failure to hire him amounted to discrimination under the ADA on the basis of a perceived disability. The employer denied the allegations, arguing that the worker did not have a disability because “obesity” was not a qualifying impairment and, moreover, there is no evidence to suggest that he was regarded as being presently impaired. The District Court found Plaintiff’s allegations of “perceived disability” to be worthy of a trial, but the Seventh Circuit reversed, concluding that the employer did not perceive there was a current perception had an obesity-related impairment at the time of withdrawal of the offer.

This decision adds to the growing body of ADA related case-law and may add to the confusion as to when a perceived disability is protected. Interesting, the Genetic Information Nondiscrimination Act (“GINA”) is not discussed in the Court’s decision as BMI likely does not qualify as genetic information. However, employers should be aware of GINA in all employment decisions.

Jackson Lewis P.C. © 2019

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About this Author

Jessica R. Schild Employment Lawyer Jackson Lewis Law Firm
Associate

Jessica R. Schild is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Ms. Schild served as the Editor-in-Chief of the Hofstra Labor & Employment Law Journal, as well as a Senator for the Student Bar Association. She was also a member of Hofstra Law’s Dispute Resolution Society and competed in several external competitions.

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