• About F & S
  • Our Attorneys
  • Practice Areas
      • litigateLitigation Services
      • REGRegulatory Matters
      • Commercial Transactions
      • Labor & Employment
      • General Counsel Service
      • Government & Passenger Rail
    • Close
  • Our Clients
  • Alerts & Analysis
  • About F & S
  • Our Attorneys
  • Practice Areas
      • litigateLitigation Services
      • REGRegulatory Matters
      • Commercial Transactions
      • Labor & Employment
      • General Counsel Service
      • Government & Passenger Rail
    • Close
  • Our Clients
  • Alerts & Analysis
Seventh Circuit Joins Good Company with Opinion on ADA’s Definition of “Disability”

Seventh Circuit Joins Good Company with Opinion on ADA’s Definition of “Disability”

  • On December 4, 2019

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.

 
Our Recent Blog Post
  • FRA ISSUES FINAL CREW SIZE RULE
  • The Illinois Biometric Information Privacy Act: Proceed at Restricted Speed
  • ORAL FLUID TESTING:  A HEADS UP TO REVIEW YOUR POLICIES!!!
  • Pregnant Workers’ Fairness Act: Congress’ New Rule on Work-Place Accommodations for Pregnant Workers
  • PHMSA is proposing new rules on train consist and emergency response information
  • FRA PROPOSED RULES FOR CERTIFICATION OF RAILROAD DISPATCHERS AND SIGNAL EMPLOYEES
  • Final Rule on Oral specimen drug testing
  • Emergency Escape Breathing Apparatus NPRM
  • FLETCHER & SIPPEL ADDS AND PROMOTES ATTORNEYS
  • FRA Rule Amendments on Glazing
  • BNSF Loses Illinois Biometric Privacy Lawsuit, Jury’s Verdict Exposes Railroad to up to $228 Million in Damages
  • Bill Sippel
  • NPRM on reflectorization
  • USDOT Solicits Applicants for Crossing Safety Enhancement Grants
  • BNSF California Embargo

A New day . . . or two?

Previous thumb

Northern District of Illinois Rejects Railroad’s Federal Preemption Defense Under State Biometric Data Privacy Law

Next thumb
Scroll

Chicago, Il
29 North Wacker Dr, Suite 800
Chicago, IL 60606-3208

(312) 252-1500 (Main)
(312) 252-2400 (Fax)

Jackson, MS
4400 Old Canton Road, Suite 220,
Jackson, MS 39211-5982

(601) 414-6009 (Main)
(601) 414-6016 (Fax)



Privacy Policy

©2023 Fletcher & Sippel LLC.  Branding & Designed by Menagery, Inc.
Manage Cookie Consent
To provide the best experiences, we use technologies like cookies to store and/or access device information. Consenting to these technologies will allow us to process data such as browsing behavior or unique IDs on this site. Not consenting or withdrawing consent, may adversely affect certain features and functions.
Functional Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Preferences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes. The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.
Manage options Manage services Manage {vendor_count} vendors Read more about these purposes
View preferences
{title} {title} {title}