By Alexandra J. Blackwell, Jeselskis Brinkerhoff and Joseph LLC
On October 29, in Shell v. Burlington Northern Santa Fe Railway, Co., No. 19-1030, 2019 WL 5558090 (7th Cir. Oct. 29, 2019), the Seventh Circuit joined the Eighth, Ninth, Tenth and Eleventh Circuits in concluding that ADA protections do not extend to future potential disabilities. This decision shows the importance of advising clients to draft and maintain well-reasoned policies that are consistently followed by the company.
The lawsuit was brought by Ronald Shell (Shell), a longtime railyard worker who was not hired by Burlington Northern Santa Fe Railway Company (BNSF) after it assumed operations of Chicago’s Corwith Rail Yard in 2010. Shell worked at the Corwith Rail Yard since 1977. Over his 33 years at the railyard, Shell held a variety of positions, including groundsman, driver and crane operator. All evidence suggested that Shell was a very skilled and productive employee. When BNFS assumed operations of the railyard, it ended the employment of those like Shell who had worked for the company that had previously handled the operations of the railyard.
BNSF encouraged the railyard employees to apply for positions with BNSF. Shell applied to work as an intermodal equipment operator—this position required the individual to perform duties of a groundsman (climbs on the railcars to insert and remove the devices that connect the containers), a hostler (drives the trucks that move trailers) and crane operator (operates the cranes that load and unload the containers). Because this position required the employees to work on or around very heavy equipment, BNSF classified this position as being a “safety-sensitive position.”
After preliminary review of his application, Shell was given a conditional offer to work at BNSF as an intermodal equipment operator. One of the conditions was that Shell pass a medical evaluation by BNSF’s chief medical officer. After reviewing Shell’s medical history questionnaire and conducting a physical exam, the chief medical officer learned that while Shell did not have any medical conditions; he had a body-mass index of 47.5 which placed him as having class III obesity. According to BNSF’s policies, the company does not hire individuals for safety-sensitive positions if their body-mass index is 40 or greater. BNSF believed that those individuals with class III obesity could experience unexpected debilitating health episodes while operating dangerous heavy equipment thereby putting themselves and others at risk of serious injury or death.
Based on Shell’s medical information and BNSF’s policy regarding body-mass index for safety-sensitive positions, the chief medical officer determined that Shell was not qualified for the position. Shell was informed that he was not medically qualified for the position at that time, but that his application would be reconsidered if he lost at least 10 percent of his weight, maintained the weight for at least six months and submitted to further medical evaluations if requested.
Shell subsequently filed suit against BNSF, alleging that BNSF discriminated against him on the basis of a perceived disability in violation of the ADA when it declined to hire him after his medical evaluation. BNFS moved for summary judgment arguing that Shell did not have a disability within the meaning of the ADA because obesity is not a qualifying impairment and there was no evidence to suggest that BNSF regarding Shell has presently having a qualifying impairment. The district court denied BNSF’s motion holding that while Shell’s obesity was not a qualified impairment, there was a dispute as to whether BNSF regarded Shell as having an obesity-related condition. The district court further disagreed with BNSF’s business necessity defense because BNSF had not provided evidence to show that class III obesity posed sufficient risks to make BNSF’s body-mass index policy necessary.
On appeal, the Seventh Circuit considered “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, No. 19-1030, 2019 WL 5558090, at *2. After considering the evidence before the court and the plain language of the statute, the Seventh Circuit reversed the district court’s denial of summary judgment and concluded that the ADA’s text only encompasses current impairments—not a past or future impairment. See id. at *3 (“‘Having’” means presently and continuously. It does not include something in the past that has ended or something yet to come.”) The Seventh Circuit further concluded that obesity alone does not qualify as a disability under the ADA, even if an individual’s obesity may increase the likelihood that the individual will develop future qualifying disabling impairments.
The Shell ruling is consistent with how other circuits have addressed this issue. See Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. BNSF Ry. Co., 902 F.3d 916 (9th Cir. 2018); Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016); EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019). Moreover, it should be noted that policies allowing for business-related decisions based on obesity alone are permissible following the Seventh Circuit’s recent ruling in Richardson v. Chicago City Transit, 926 F.3d 881 (7th Cir. 2019). While the Seventh Circuit ruling is good news for employers, employers should proceed carefully—it is still possible that acting on the mere possibility of a future impairment could be interpreted by the EEOC as disability discrimination.
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