No Crystal Ball for the ADA: Future Disabilities Not Protected Under Act

By Shalayne L. Pillar and Marian M. Zapata-Rossa

On October 29, 2019, a panel of Seventh Circuit Appellate Court Judges held that the Americans with Disabilities Act (ADA) does not cover alleged discrimination based on future impairments. Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030, 2019 WL 5558090 (7th Cir. Oct. 29, 2019). The unanimous three-Judge panel ruled in favor of employer, BNSF Railway Co. (BNSF), which refused to hire an overweight applicant because of the perceived risk that he would develop future obesity-related medical conditions.

The case arose when plaintiff, Ronald Shell, applied for a position that BNSF classified as “safety-sensitive.” Based on its policy of not letting workers with a body mass index (BMI) of over 40 perform safety-sensitive jobs, BNSF denied Shell the position after a physical exam revealed that he had a BMI of 47.5.  Id. at *1–2. BNSF defended its BMI policy, reasoning that obese employees are at a substantially higher risk of developing certain conditions (such as sleep apnea, diabetes and heart disease), which could “manifest as a sudden incapacitation.”  Id.  Thereafter, Shell sued the company alleging it violated the ADA by discriminating against him based on a disability.  Id. 

The Court’s analysis turned on the ADA’s “plain text,” which defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”  Id. at 3 (citing 42 U.S.C. § 12102(1)).  The Court ruled that the ADA’s requirement of “having such an impairment” “plainly encompasses only current impairments, not future ones.”  Id.  “The key word is ‘having,’” the Judges said.  Id.  “‘Having’ means presently and continuously.  It does not include something in the past that has ended or something yet to come.”  Id.  Although the EEOC argued such a reading contradicted the ADA’s purpose, the Judges reasoned that the BMI policy reflected a stereotype of obesity—not of a disability.  Id. at *4.  “Lacking evidence of a physiological cause, [Shell’s obesity] is not a disability that the ADA protects.”  Id.

The Court also disregarded Shell’s argument that BNSF’s refusal to hire him constituted discriminatory treatment as though he currently held such impairments because Shell failed to produce any evidence that BNSF currently “regarded” him as impaired.  Id. at  *3.  The ADA requires that an employee is “regarded as having such an impairment.”  Id.  (citing 42 U.S.C. § 12102(3)(A)).  The Judges found that BNSF perceiving Shell to be a disabled person was an essential missing element to his claim under the “regarded as” prong of the ADA.  Id.  Accordingly, the Court ruled in favor of BNSF and remanded the case for further proceedings.  Id. at *5.

Although court decisions vary on whether obesity constitutes a disability, the Seventh Circuit’s decision is consistent with its prior rulings, as well as a majority of Circuit Courts, which when confronted with the issue have held that obesity must be caused by an underlying physiological disorder or condition to be considered a disability.  See, e.g., the Richardson v. Chicago Transit Auth., 926 F.3d 881, 888 (7th Cir. 2019) (holding that without evidence that plaintiffs’ extreme obesity was caused by physiological disorder or condition, his obesity was not a physical impairment under the plain regulation of the ADA); Francis v. City of Meriden, 129 F.3d 281, 286–87 (2d Cir. 1997) (same); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 441–43 (6th Cir. 2006) (same); Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1108–13 (8th Cir.), cert. denied, 137 S. Ct. 256 (2016) (“Taken as a whole, the relevant statutory and regulatory language makes it clear that for obesity to qualify as a physical impairment—and thus a disability—under the ADA, it must result from an underlying physiological disorder or condition”). Notably, the issue is unresolved in the Ninth Circuit, although the Court has acknowledged that “the scope of ADA protection for individuals suffering from obesity. . . presents an open question of federal law in this circuit.”  See Taylor v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 851–53 (9th Cir. 2018).