December 11, 2019

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Can an Employer Refuse to Hire an Employee Because of the Employee’s Risk of Developing a Disability?

The Seventh Circuit joins the Eighth, Ninth and Tenth Circuits in holding that such a refusal would not violate the Americans with Disabilities Act. In Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030, the appellate court addressed the certified question “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”

Shell had applied to work in a safety-sensitive position for BNSF and received a conditional offer of employment, subject to him passing a medical evaluation. BNSF’s chief medical officer determined that at 5’10” and 331 pounds with a body-mass index of 47.5, Shell was not medical qualified for the job. Employees in safety-sensitive positions are required to have a BMO of less than 40.

Shell sued, claiming that BNSF’s refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA.

Looking to the statutory language of the ADA, the court held that the ADA’s “regarded as” prong does not cover a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. The ADA’s “regarded as” prong defines “disability” as “being regarded as having [a physical or mental impairment.” (Emphasis added). As such, the text plainly encompasses only current impairments, not future ones. “Having” means presently and continuously.

Shell did not base his disability claim on his obesity, as a recent Seventh Circuit opinion foreclosed that possibility. In Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), the court of appeals joined other circuits holding that obesity alone is not a physical impairment under the ADA unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition. Shell instead based his disability claim on those medical conditions that BNSF feared he would develop – sleep apnea, diabetes, and heart disease – which undisputedly qualify as impairments under the statute. But Shell did not have those impairments at the time he applied to work for BNSF, nor was there any evidence that the company perceived him to currently have those impairments.

The Seventh Circuit agreed with the Eight Circuit: the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment, but does not prohibit discrimination based on a perception that a physical characteristic – as opposed to a physical impairment – may eventually lead to a physical impairment under the Act. With only proof that BNSF refused to hire him because of a fear that he would one day development an impairment, Shell could not establish that the company regarded him as having a disability, or that he was otherwise disabled.

Jackson Lewis P.C. © 2019

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About this Author

Jody Wilner Moran, Employment Law Attorney, Jackson Lewis, Law firm
Principal

Jody Wilner Moran is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. She represents employers in trial, appellate, and administrative proceedings throughout the Midwest involving a broad range of substantive employment law issues.

Ms. Moran has successfully assisted countless clients in handling their employment issues in Illinois, Wisconsin, Indiana, Iowa and Michigan, including litigating wrongful discharge cases; managing discrimination cases; counseling employers on challenging employment issues; mediating cases to settlement; conducting...

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