By: Melissa Tetreau, Bodman PLC
To answer the title’s question, the ADA covers only current disabilities – at least according to the Seventh Circuit (covering Illinois, Indiana, and Wisconsin). To many of us, this seems like the obvious answer. However, Ronald Shell, an applicant for employment at Burlington Northern Santa Fe Railway Company (BNSF), thought otherwise.
Shell applied to work as an intermodal equipment operator with BSNF, where he would operate cranes and work around other heavy equipment. Due to these job responsibilities, BNSF classifies this position as “safety sensitive.” BNSF requires all applicants to safety sensitive positions to undergo a medical examination after receiving a conditional offer of employment.
Shell was treated no differently. After BNSF extending him a conditional offer of employment, it sent him for a medical examination. The examination revealed that Shell, who is 5’10” and 331 pounds, had a BMI of 47.5.
Why does this matter? BNSF had a policy of not hiring applicants for safety sensitive positions who had a BMI of 40 or higher. Its reasoning was that individuals with a BMI of 40 or higher are at a substantially higher risk of developing certain medical conditions, such as sleep apnea, heart disease, and diabetes. BNSF believed that a safety sensitive employee with a BMI of 40+ could experience a health issue and lose consciousness at any moment, including while operating heavy machinery.
As a result of Shell’s BMI, BNSF rescinded its offer. Unsurprisingly, Shell sued for discrimination on the basis of a perceived disability under the ADA. At the trial court, BNSF moved for summary judgment arguing, among other things, that Shell’s obesity was not a disability and there was no evidence that BNSF regarded him as having a disability. The trial court denied BNSF’s motion. The court agreed that obesity is not a disability under the ADA, but found a question of fact as to whether BNSF regarded Shell has having the allegedly obesity-related conditions of sleep apnea, heart disease, and diabetes.
BNSF appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit reiterated that the ADA covers individuals who are “regarded as” disabled. The ADA defines this as “being regarded as having [a physical or mental] impairment.” 42 U.S.C. 12102(1)(C). The Court emphasized the present participle in that definition – having. “It does not include something in the past that has ended or something yet to come.” The Court then looked at a further definition of “being regarded as having such an impairment,” which is when an employee is discriminated against “because of an actual or perceived physical or mental impairment.” 42 U.S.C. 12102(3)(A). As the Court noted, a disability that does not yet exist can be neither actual nor perceived.
The Seventh Circuit reversed the trial court’s denial of summary judgment and held that the ADA’s “regarded as” prong does not cover future disabilities. Although this case is not binding on any courts in Michigan, which is in the Sixth Circuit, the decision is in line with other courts that have addressed the issue. Nonetheless, when an outcome turns on interpreting a “present participle,” employers are well-advised to consult with their experienced employment counsel when making those sorts of decisions under the ADA.
Melissa Tetreau is a member of the Detroit SHRM Legal Affairs Committee and an attorney with the law firm of Bodman PLC. She can be reached at MTetreau@bodmanlaw.com.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. November 2019.
 Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030 (CA 7, Oct. 29, 2019).