ADA’s “Regarded As” Prong Doesn’t Cover Future Disabilities
In Shell v. Burlington Northern Santa Fe R.R., No. 19-1030, 2019 WL 5558090 (7th Cir. Sept. 26, 2019), the Seventh Circuit ruled that the “regarded as” prong of the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327, prohibits employment discrimination only when the employer regards the individual as having an existing impairment.
Shell applied for a position with Burlington Northern Santa Fe Railroad Co. (BNSF) that the company defined as “safety-sensitive” because it required work on or around heavy equipment. 2019 WL 5558090 at *1. BNSF maintains a policy of rejecting candidates for safety-sensitive positions when their body mass index (BMI) is 40 or greater. BNSF bases its policy on the fact that individuals in this range are considered to suffer from class III obesity, which leads to a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease. Per BNSF, the unpredictable onset of one of those conditions could result in sudden incapacitation. If a safety-sensitive employee experienced a debilitating, incapacitating health episode while operating dangerous equipment, the result could be disastrous for everyone in the vicinity.
Shell underwent a medical evaluation conducted by BNSF’s chief medical officer. This evaluation identified Shell as having a BMI of 47.5. As a result, Shell was disqualified for employment under BNSF’s policy.
Shell sued BNSF, alleging that its refusal to hire him constituted ADA discrimination on the basis of a perceived disability. BNSF moved for summary judgment, arguing the following:
1. Shell did not have an ADA-qualifying disability because obesity is not a qualifying impairment.
2. BNSF did not regard Shell as presently having an ADA-qualifying impairment.
3. Even if BNSF’s refusal to hire Shell reflected discrimination, the BMI policy qualified for the ADA’s business necessity defense.
The district court denied BNSF’s motion for summary judgment, holding that a disputed factual question remained as to whether BNSF regarded Shell as having the obesity-related conditions of sleep apnea, heart disease, and diabetes.
The district court, at BNSF’s request, certified its order for interlocutory appeal and defined the question presented as “[w]hether 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.” 2019 WL 5558090 at *2.
Obesity, by Itself, Is Not a Disability
The Seventh Circuit began its opinion by revisiting Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019). In the time between the district court’s summary judgment in Shell and the Seventh Circuit’s decision on Shell’s appeal, the Seventh Circuit had decided, in Richardson, that obesity alone, absent evidence that it is caused by an underlying physiological disorder, is not a physical impairment under the ADA. As a result, the Seventh Circuit panel held that this argument was foreclosed for Shell.
“Regarded As” Prong Covers Current Impairments Only
The question before the Seventh Circuit was whether the ADA’s “regarded-as” prong covers a situation in which an employer views an applicant as “at risk” for developing a qualifying impairment in the future. Ultimately, the court decided that it does not.
Significantly, the Seventh Circuit found its answer in the ADA’s text itself. The statute’s “regarded as” section defines disability as “being regarded as having [a physical or mental] impairment.” 2019 WL 5558090 at *2. After first chiding the legislature for using the passive voice, the court determined that the key word in the definition, “having,” means only current impairments, not future ones. In so deciding, the court turned to a reasonable analysis of the matter, stating that “no one would understand the sentence, ‘Shell is being regarded as having sleep apnea,’ to mean anything other than Shell is viewed today as currently suffering from sleep apnea.” 2019 WL 5558090 at *3.
Relying on this analysis, the court was not persuaded by BNSF and the Equal Employment Opportunity Commission’s arguments on statutory interpretation. In fact, the court found no need to turn to those tools of interpretation when the statute’s plain language provided the answer.
Finally, the court noted that its decision was consistent with several other circuits that had confronted this particular issue. Finding itself in “good company” with its reading of the ADA’s text, the court determined that Shell could not prevail on his discrimination claim absent a showing that BNSF regarded him as presently having a disability or that he was otherwise disabled.
For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION: UNLAWFUL GROUNDS AND PREVENTION — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.