Seventh Circuit: ADA Does Not Prohibit Discrimination Based on Future Impairments
On October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).
Ronald Shell applied for a job with BNSF as a machine operator position. Per its standard practice when the applied-for position is safety-sensitive, as was the heavy equipment operator position sought by Shell, BNSF required him to undergo a medical examination. During the medical examination, the examiner determined that Shell’s body mass index (“BMI”) was 47. BNSF had a practice of refusing to hire individuals with a BMI higher than 40 for safety-sensitive positions. In Shell’s case, the employer expressed concern that his obesity, although not causing any present disability, would cause Shell disabilities in the future, such as sleep apnea, diabetes, and heart disease. BNSF asserted that this risk was significant because a sudden onset of any of these conditions could be catastrophic for a heavy machine operator. BNSF therefore did not place Shell in the position.
Shell sued, arguing that he was “disabled” under the ADA’s definition of that term because BNSF had “regarded him as” having a disability. The ADA not only protects individuals who are actually disabled or have a record of being disabled, but also protects individuals who have been subjected to an adverse employment action because of an actual or perceived physical impairment, whether or not that impairment substantially limits a major life activity. Shell argued that by refusing to hire him based on the risk of future disabilities that he was at risk of as a result of his obesity, BNSF essentially treated him as though he currently had those conditions.
The Court ruled that the ADA does not protect non-disabled employees from discrimination based on a risk of future impairments. The Court cited precedent from the Eighth Circuit, where BNSF also faced challenges to its practice of refusing to hire obese applicants due to the risk of future impairments. The Eighth Circuit, like the Ninth and Tenth Circuits, also has held that the statutory language of the ADA does not protect non-disabled individuals who have a risk of disability in the future.
Of note, Shell also argued at the trial court level that his obesity constituted an actual disability, rendering BNSF’s refusal to hire him based on this characteristic a violation of the ADA for this reason as well. However, as you may recall from our blog post from earlier this year, just a few months ago, the Seventh Circuit addressed this argument in another case, Richardson v. Chicago Transit Authority, and held that obesity, by itself, is not a disability for purposes of the ADA unless it is caused by an underlying physiological disorder. Shell did not present any evidence in his case of such an underlying disorder, and thus could not therefore claim that he was actually disabled. Notably, the federal appellate courts are split on this issue, which may tee it up for consideration by the United States Supreme Court in the future. In contrast, among the appeals courts that have addressed the issue of future disabilities, all have agreed, thus far, that the ADA’s reach does not extend to potential or likely future disabilities of currently non-disabled individuals.