By: Paula E. Pitrak

On October 29, 2019, the Seventh Circuit joined good company with its reading of the Americans with Disabilities Act’s (ADA) text regarding whether the “regarded as” prong covers a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. In Shell v. Burlington Northern Santa Fe Ry. Co., No. 19-1030 (7th Cir. Oct. 29, 2019), the Seventh Circuit held 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 due to his current obesity.

For 33 years, Shell was an employee of Chicago’s Corwith Rail Yard where he occupied different positions, including groundsman, driver, and crane operator. By 2010, BNSF owned the Yard, and Shell was employed by BNSF’s contractor. When BNSF decided to assume the railyard’s operations, all employees of the contractor, including Shell, were terminated, but BNSF invited those employees to apply for new positions. Shell applied and was extended a conditional offer for the position of intermodal equipment operator—a “safety-sensitive” position.

One employment condition required Shell pass a medical evaluation. It was revealed during the physical examination that Shell was 5’10” tall and weighed 331 pounds—translating to a body-mass index of 47.5. Per its BMI policy, BNSF does not hire applicants for safety-sensitive positions if their BMI is 40 or greater (class III obesity). The reasoning behind BNSF’s BMI policy is that prospective employees with class III obesity are at a substantially higher risk of developing certain conditions, such as sleep apnea, diabetes, and heart disease, and the unpredictable onset of those conditions can result in sudden incapacitation while operating dangerous equipment. As such, Shell was deemed not medically qualified for the safety-sensitive job. BNSF informed Shell of his disqualification but told him that his application could be reconsidered if he lost at least 10% of his weight and maintained the weight loss for at least six months.

Shell sued under the ADA. The district court denied BNSF’s motion for summary judgment. The Seventh Circuit reversed. In its opinion, the Seventh Circuit relied on the plain meaning of the ADA’s statutory text that encompasses only current impairments, not future ones. If the impairment does not yet exist, reasoned the Seventh Circuit, then it can be neither actual nor perceived as required by 42 U.S.C. § 12102(3)(A). The Seventh Circuit joins all other circuits that have confronted this issue—specifically, the Eighth Circuit, Ninth Circuit, Tenth Circuit, and Eleventh Circuit.

In its reasoning, the Seventh Circuit explained that, with only proof that BNSF refused to hire him because of a fear that he would develop an impairment, Shell failed to established that BNSF regarded him as having a disability or that he was otherwise disabled. The Seventh Circuit has held 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. Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).

The EEOC filed a friend-of-the-court brief that advanced two additional arguments in favor of its contrary reading of the ADA’s text by pointing to its Compliance Manual, which the Court found to be unmoored from the ADA’s text and in tension with other EEOC interpretative guidance. In addition, the EEOC invoked the ADA’s purpose which in part is to combat “society’s accumulated myths and fears about disability and disease,” but the Seventh Circuit found, to the extent BNSF’s BMI policy reflects a stereotype about obesity—Shell’s disability, lacking evidence of a physiological cause—is not a disability that the ADA protects.

Contact Fletcher & Sippel’s Labor and Employment Group for more information.

Resources:

Shell v. Burlington Northern Santa Fe Ry. Co.