After adopting the majority view that obesity is an ADA impairment only when it results from an underlying physiological condition or disorder, a federal district court in Illinois found that an individual whose conditional offer for a safety sensitive railroad job was withdrawn based on his Body Mass Index (BMI) could not prevail on a claim of disability discrimination under section 12012(2)(A) of the Act because he did not presently suffer from any underlying condition. On the other hand, his ADA regarded as claim could proceed to trial, said the court, observing that 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 (Shell v. Burlington Northern Santa Fe Railway Co. , March 5, 2018, Coleman, S.).
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.
BMI considered. He was offered the job conditioned on the successful completion of, among other things, a medical evaluation. As part of its medical-evaluation process, BNSF considers the BMI of applicants for safety-sensitive jobs. Believing that there are significant risks associated with having individuals with a BMI of 40 or greater (commonly labeled as Class III obesity) working in safety-sensitive jobs, it will not hire applicants for such jobs if their BMI is over 40.
Offer withdrawn. In his required medical history questionnaire, the applicant described his health as “very good.” However, at 5’ 10’’ tall and weighing 331 pounds, his BMI was 47.5. Finding he was not medically qualified for a safety-sensitive position due to the health and safety risks associated with his BMI, BNSF withdrew its conditional job offer. He was told, however, that he might be eligible for reconsideration if he lost 10 percent of his weight, maintained that weight loss for six months, and provided any additional test results that were requested. If he had complied with this procedure, his application would have been considered even if he still had a BMI that fell within the range of Class III obesity.
Obesity as ADA impairment. While the applicant claimed BNSF regarded him as disabled based on his obesity, the railway company argued that obesity is only an ADA-defined impairment when it results from an underlying physiological cause. Noting that district courts are split on the question of whether a plaintiff alleging disability discrimination based on obesity must demonstrate that his obesity results from an underlying physiological disorder, the court observed that judges in the Northern District of Illinois have recognized that severe obesity is not a disability under the ADA unless it results from an underlying physiological condition. Further, the court pointed out, every circuit court to have considered this question has agreed that obesity is only an impairment under the ADA when it results from an underlying physiological disorder. Finding these decisions to be consistent with the EEOC’s regulatory guidance distinguishing between actionable impairments and physical characteristics, such as height and weight, that fall within the “normal” range and do not result from a physiological disorder, the court adopted this majority view.
Noting it was undisputed that BNSF did not believe the applicant’s obesity was the result of a physiological disorder, the court found the railway company was incapable of perceiving his obesity as a physical impairment within the meaning of the ADA. Further, the applicant also failed to establish that BNSF perceived his obesity as a disability as it did not believe he was unable to perform his physical job functions as a result of limitations posed by his weight. Rather, it admitted that it acted based on the correlation between Class III obesity and conditions such as sleep apnea, diabetes, and heart disease that can lead to a high risk of sudden incapacitation. Thus, the court explained, although BNSF acted based on the applicant’s obesity, it did so solely because Class III obesity signaled the potential presence of the these conditions and not because it believed his weight impacted his ability to perform major life functions.
Ticking time bomb. Alternatively, the applicant argued that if BNSF did not regard him as disabled because of his obesity, it regarded him as disabled in light of his risk of developing sleep apnea, heart disease, or diabetes. Observing that BNSF readily admitted it refused to hire him based on its fear that he would develop one of these conditions, and that as a result he might become suddenly and unexpectedly incapacitated while performing his duties, the court found that, at a minimum, a fact dispute existed as to whether the company was treating him as if he did suffer from those conditions.
The applicant, said the court, “to BNSF’s apparent view, is a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated by one or more of the potential medical conditions that he might develop.” And its refusal to consider hiring him and monitoring him for these conditions suggested that BNSF believed he suffers from the conditions, or, said the court, “perhaps more accurately the potential effects of the conditions—at the present time.”
Pointing out that if he actually suffered from any one of the impairments at issue, he would fall within the scope of section 12012(2)(A) and would be able to establish a prima facie case of disability discrimination based on BNSF’s refusal to hire him, the court could see no reason why BNSF should be held to a lesser standard merely because it was engaging in adverse employment actions before an impairment arose when there could be no doubt that BNSF was acting based on its belief that he posed a present safety risk as a result of potential disabilities.
Business necessity defense. But even if the applicant could make out a prima facie case, BNSF argued its actions were protected under the business-necessity defense. The undisputed evidence established that individuals with Class III obesity are at a “substantially higher” risk of developing a number of medical conditions, including heart disease, diabetes, and sleep apnea, and that those conditions “frequently manifest” as sudden incapacitation or serious impairment of alertness or cognitive function. But, the court explained, “substantially higher” and “frequently,” are indefinite terms that are incapable of conveying the actual risk that he would develop one of these conditions or become unexpectedly impaired. Because there was no specific information about the risks that motivated BNSF’s conduct here, the court found it impossible to determine whether the applicant’s health posed so great a safety risk that his exclusion from safety-sensitive positions constituted a business necessity.
This was especially the case here, said the court, noting that BNSF offered to consider the applicant for employment if he lost 10 percent of his weight, even if he remained at a Class III obesity level. Its willingness to employee individuals with Class III obesity upon marginal weight loss undermined its claim that individuals with Class III obesity are inherently too dangerous to employ in safety-sensitive positions, the court reasoned, finding BNSF failed to establish that it was entitled to summary judgment on its business necessity defense.
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