Seventh Circuit Issues Another ADA Decision Involving Obesity Disability, Finds Future Impairments Are Not Covered

The Seventh Circuit Court of Appeals has issued another ruling regarding an obesity-related disability accommodation request under the American with Disabilities Act (ADA). Earlier this past summer, we reported on another Seventh Circuit case, in which the court held that obesity is not an ADA-protected disability unless it is caused by a physiological disorder or condition. In Ronald Shell v. Burlington Northern Santa Fe Railway Company, the Seventh Circuit reversed a district court's decision, and ruled that an obese applicant for a safety-sensitive position—who was not hired due to his obesity—cannot claim discrimination under the "regarded as" prong of the ADA.

According to the three judge panel, the ADA only protects against discrimination based on disabilities a person already has, not conditions they might develop in the future. This decision aligns the Seventh Circuit with other federal appellate courts, but it also leaves them in opposition with the Equal Employment Opportunity Commission (EEOC) on the issue.

Specifically, the Seventh Circuit looked at one definition of disability as "being regarded as having [a physical or mental] impairment" and determined that the key word in the text is "having" – meaning presently and continuously. Therefore a violation of the ADA cannot be established unless the plaintiff is regarded as currently having a disability.

Factual Background

In Ronald Shell, the plaintiff, Ronald Shell, had been working for a contractor at a railyard owned by Burlington Northern Santa Fe Railway Company (BNSF). When BNSF decided to assume the railyard's operations, the arrangement with the contractor ended and all the contractor's employees were terminated. The employees were free to apply to work with BNSF, which Shell did. He had worked at the railyard for 33 years in positions that included tasks as a groundsman, driver, and crane operator.

BNSF classified the position Shell applied for as "safety-sensitive" because it required working on and around heavy equipment. For safety-sensitive positions, BNSF had a policy not to hire applicants with a body-mass index (BMI) of 40 or greater, as individuals in this range are considered to have Class III obesity. According to BNSF, they established that policy since individuals with Class III obesity are at a substantially higher risk of developing medical conditions such as sleep apnea, diabetes, and heart disease—which could result in sudden incapacitation and present a safety risk. Shell was under six feet tall and weighed over 330 pounds, which translated to a BMI of 47.5. Because Shell would be working in a safety-sensitive position and could experience a debilitating health episode while operating dangerous equipment, BNSF did not hire him.

Shell sued under the ADA, claiming BNSF discriminated against him because it regarded him as being disabled. BNSF argued that his obesity was not a qualifying impairment under the ADA and no evidence suggested that BNSF currently regarded him as presently having such an impairment. Further, there was no evidence that his obesity was caused by an underlying physiological condition which according to recent Seventh Circuit case law is a requirement to be considered an ADA-protected disability.

The Court's Legal Analysis

In deciding this case, the Seventh Circuit used a textual analysis and found the plain language of the ADA encompasses only current impairments and not ones that may arise in the future. The Seventh Circuit noted that the Eighth and Ninth Circuits also have reached the same conclusion on similar facts. However, this position puts the Seventh, Eighth, and Ninth Circuits in direct opposition to the EEOC, with agency having addressed a similar scenario in its Compliance Manual. However, the EEOC's Interpretive Guidance (a separate statement) said the definition of "impairment" does not include "characteristic predisposition to illness or disease." This inconsistency led the Seventh Circuit to conclude that the Compliance Manual's example is "unmoored" from the ADA's text and in conflict with the EEOC's other Interpretive Guidance. Therefore, the guidance in the Compliance Manual lacked the power to persuade the Seventh Circuit away from its statutory interpretation.

The Seventh Circuit also dealt with the concept of impermissible stereotypes. It concluded that to the extent a stereotype did exist, it is one about obesity in general. The court then pointed to its earlier decision this year in Richardson and concluded that making a decision on obesity without an underlying physiological cause did not establish a violation.