On October 29, 2019, the Seventh Circuit Court of Appeals ruled that the ADA’s definition of disability does not encompass a situation where an employer views a job applicant as at risk for developing a qualifying impairment in the future.
Ronald Shell began working at Chicago’s Corwith Rail Yard in 1977. In the intervening years, Burlington Northern Santa Fe Railroad Company (“BNSF”) acquired Corwith and assumed the railroad’s operations itself. BNSF invited those employees who had previously worked in operations to apply for new positions. Shell applied for a position as intermodal equipment operator, and BNSF made a conditional offer of employment contingent upon Shell’s medical evaluation. Shell described his overall health as very good and did not report any medical conditions; however, his physical exam revealed that Shell was 5’10” and weighed 331 pounds, translating to a body-mass index of 47.5. Per BNSF’s policy, the company does not hire applicants for safety-sensitive positions if the applicants BMI is 40 or greater, which is considered class III obesity. BNSF asserted that prospective employees with class III obesity are at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease, and the unpredictable onset of those conditions can lead to sudden incapacitation. For an employee responsible for operating dangerous equipment, the result could be disastrous, if not fatal.
The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities as such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. The crux of the issue before the Court was whether BNSF, in refusing to hire Shell, regarded him “as having” those impairments likely to stem from obesity—in other words, is the likelihood that Shell may develop a future disability within the scope of the ADA. The court held that it is not.
In ruling for BNSF, the Court reasoned that while sleep apnea, diabetes, and heart disease would indisputably qualify as impairments under the ADA, the facts established that Shell did not have those impairments at the time he applied for the position, and BNSF did not hold a perception to the contrary. Indeed, the company’s chief medical officer stated as much, and Shell could not point to any evidence to controvert that fact. Sister circuits have come to the same conclusion. The Eighth Circuit recently held that “the ADA does not prohibit discrimination based on a perception that a physical characteristic—as opposed to a physical impairment—may eventually lead to a physical impairment as defined under the Act.”
That said, ADA cases are highly fact sensitive, and it is a fine line between a perceived impairment and a characteristic that may eventually lead to an ADA-covered physical impairment. We urge school officials to exercise caution when making employment decisions with potential ADA implications.