Employer Lawfully Refused to Hire Applicant for Fear of Future Medical Impairments, Appellate Court Holds
An employer did not violate the Americans With Disabilities Act (“ADA”) by refusing to hire an obese applicant based on the belief his weight created a high risk he would develop medical conditions in the future, the Seventh Circuit Court of Appeals has ruled.FN1
Earlier this year we reported a Seventh Circuit decision holding 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.FN2 In Shell v. Burlington Northern Santa Fe Railway Co. (“BNSF”), that court further held that the ADA does not prohibit employers from making adverse employment decisions based on their perception that healthy individuals likely will become ill or disabled in the future.FN3
In Shell, the defendant railroad company gave the plaintiff a conditional offer for an equipment operator position that required him to pass a medical evaluation. The medical evaluation revealed that the plaintiff, who was 5’ 10” tall and weighed 331 pounds, had a body-mass index (“BMI”) that disqualified him for safety-sensitive positions under company policies. Although the company did not think the plaintiff was currently disabled, it believed someone with the plaintiff’s BMI had a “substantially higher risk” of developing serious medical conditions like sleep apnea, diabetes, and heart disease in the future. The court held that merely believing someone would develop a medical condition in the future did not make that person “disabled” or “regarded as being disabled” under the ADA,FN4 and accordingly upheld dismissal of the discrimination claim.
Practical Takeaway
The Shell decision gives employers in safety-sensitive industries greater leeway to maintain BMI policies, where business needs justify such policies. However, employers should be cautious when making decisions based on physical conditions such as obesity, which very often are caused by an underlying physiological condition and thus trigger the protections of the ADA.
Footnotes:
FN1: See Shell v. Burlington N. Santa Fe Ry. Co., 19-1030, 2019 WL 5558090 (7th Cir. Oct. 29, 2019), https://hr.cch.com/eld/ShellBNSF102919.pdf.
FN2: “Extreme Obesity Not Caused by an Underlying Medical Condition Is Not a Disability Under Federal Anti-Discrimination Law” https://www.rockymountainemployersblog.com/blog/2019/6/13/extreme-obesity-not-caused-by-an-underlying-medical-condition-is-not-a-disability-under-federal-anti-discrimination-law; Richardson v. Chicago Transit Authority, Nos. 17-3508 & 18-2199 (7th Cir. June 12, 2019).
FN3: The Seventh Circuit Court of Appeals, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, joins the Eight Circuit (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) and Ninth Circuit (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington), Tenth Circuit (covering Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), and Eleventh Circuit (covering Alabama, Florida, and Georgia) in finding that the ADA does not prohibit employers from making adverse employment decisions based on a perception a healthy person will become ill and disabled in the future. See Morriss v. BNSF Railway Company, 817 F.3d 1104, 1113 (8th Cir. 2016); EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018); Adair v. City of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016); and Equal Emp’t Opportunity Comm’n v. STME, LLC, 938 F.3d 1305, 1313 (11th Cir. 2019).
FN4: The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). Someone is “regarded as” having such an impairment when “he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major lift activity.” 42 U.S.C. § 12102(3)(A).