Labor & Employment Law Daily BNSF’s refusal to hire obese applicant based on fear of future impairment does not support ADA regarded-as claim
Friday, November 1, 2019

BNSF’s refusal to hire obese applicant based on fear of future impairment does not support ADA regarded-as claim

By Kathleen Kapusta, J.D.

Although the ADA’s regarded-as prong is “written in the passive voice, resulting in some of the attendant clumsiness that English teachers warn of,” the appeals court found that it does not encompass future impairments.

The text of the ADA’s “regarded-as” prong “plainly encompasses only current impairments, not future ones,” observed the Seventh Circuit, finding it does not apply to a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. Accordingly, the appeals court reversed the denial of summary judgment to BNSF on the regarded-as claim of an applicant who was denied employment for a safety-sensitive job based on his high Body Mass Index, which the railroad believed placed him at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease (Shell v. Burlington Northern Santa Fe Railway Co., October 29, 2019, Scudder, M.).

Employed by a company that was responsible for intermodal operations at a BNSF railyard, the applicant applied to the railway company for a safety-sensitive job when it took over operations of the yard. The job involved working around and operating heavy equipment and the applicant had many years of experience working in a similar capacity.

Offer withdrawn. BNSF extended a job offer to him conditioned on the successful completion of, among other things, a medical evaluation. When a physical exam revealed that he was 5’10″ tall and weighed 331 pounds, which translated into a BMI of 47.5, BNSF withdrew the offer. Under its BMI policy, the company does not hire applicants for safety-sensitive positions if their BMI is 40 or greater (commonly labeled as Class III obesity), because 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 result in sudden incapacitation.

Lower court proceedings. The applicant subsequently sued, alleging among other things, that BNSF discriminated against him based on a perceived disability. Denying BNSF’s motion for summary judgment, the district court held that while the applicant’s obesity was not a qualifying impairment, his ADA regarded as claim could proceed to trial as BNSF readily admitted it refused to hire him based on its fear that he would suddenly develop sleep apnea, diabetes, or heart disease, and as a result might become suddenly and unexpectedly incapacitated while performing his duties.

At BNSF’s request, the district court certified its order for interlocutory appeal and defined the question presented as “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.”

Richardson. On appeal, the Seventh Circuit first noted that while the applicant’s weight was instrumental in BNSF’s refusal to hire him, its recent decision in Richardson v. Chicago Transit Authority foreclosed the argument that his obesity qualified as a physical impairment and thus a disability within the meaning of the ADA. In Richardson, the court held that obesity alone is not a physical impairment unless caused by an underlying physiological disorder or condition and here, the applicant presented no such evidence.

Instead, observed the court, he was basing his claim on the medical conditions BNSF feared he would develop, which would qualify as impairments under the ADA. However, the court observed, he did have those impairments at the time he applied to BNSF and it held no perception to the contrary. And while he argued that by refusing to hire him based on the risk of future impairment, BNSF treated him as if he currently had those impairments, the evidence showed that BNSF did not believe he had any of the feared impairments when it refused his application. This, said the court, “narrows and lends precision to the question before us: whether the ADA’s ‘regarded as’ prong covers a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future.”

Statutory text. Turning to the text of the “regarded as” prong, which defines “disability” as “being regarded as having [a physical or mental] impairment (as described in paragraph (3)),” the court noted that while “written in the passive voice,” it plainly encompasses only current, and not future, impairments. The key word is “having,” said the court, writing that “no one would understand the sentence, ‘[The applicant] is being regarded as having sleep apnea,’ to mean anything other than [the applicant] is viewed today as currently suffering from sleep apnea.” Further, this was reinforced by the ADA’s specific definition of “being regarded as having such an impairment” in paragraph 3, which is when “he or she has been subjected to an action because of an actual or perceived physical or mental impairment.” “If the impairment does not yet exist, it can be neither actual nor perceived,” the court explained.

Good company. Pointing to the Eighth Circuit’s decision in Morriss v. BNSF Railway Co., which held that “[t]he 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,” the court observed that not only was it in “good company with this reading of the ADA’s text,” but all other circuits to have confronted the issue agree.

EEOC guidance. And while the EEOC, arguing that future impairments are covered by the ADA, pointed to an example in its Compliance Manual regarding an individual whose genetic profile reveals an increased susceptibility to colon cancer but who is asymptomatic when his conditional offer of employment is withdrawn after the employer learns of his increased susceptibility, the court noted that although this seemed to support the agency’s contention, “other agency guidance muddies the water.” Specifically, the court observed, the EEOC’s Interpretative Guidance says the definition of “impairment” does not include “characteristic predisposition to illness or disease.” Explaining that the “Compliance Manual’s genetic profiling example is unmoored from the ADA’s text and in tension with other EEOC interpretative guidance,” the court found it lacked “the power to persuade us away from the statute’s unambiguous text.”

ADA’s purpose. And while the EEOC also pointed to the ADA’s declared purpose to combat “society’s accumulated myths and fears about disability and disease,” the court noted that to the extent BNSF’s BMI policy reflects a stereotype, it is one about obesity and because there was no evidence the applicant’s obesity was caused by a physiological condition it was not a protected disability under the ADA. Thus, said the court, with only proof that BNSF refused to hire him because of a fear he would one day develop an impairment, the applicant failed to establish BNSF regarded him as having a disability or that he was otherwise disabled.

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