“Being regarded as having” a disability is covered by the ADA. “Being regarded as will be having” a disability is awkward to say — and not covered by the ADA. This is the conclusion at which the Seventh Circuit recently arrived in Shell v. Burlington Northern Santa Fe Railway Co., No. 19-1030 (7th Cir. 10/29/19).
Shell worked for Corwith Rail Yard when Burlington Northern Santa Fe (BNSF) took over operations in 2010. BNSF invited Corwith’s employees to apply for new positions, and Shell applied for an intermodal equipment operator position. BNSF classified this position as “safety-sensitive” and hired Shell on the condition that he pass a medical examination.
At the time of the examination, Shell had a BMI of 47.5. He was informed that his BMI was too high to qualify him. According to BNSF, employees with a BMI of 40 or higher could not be hired into the position because they were at a substantially higher risk of developing certain medical conditions (like sleep apnea, diabetes, and heart disease) with unpredictable onsets that could result in sudden incapacitation and cause a disastrous event.
Shell sued BNSF alleging that his failure to hire was based on a perceived disability and violated the ADA. The district court found that there was a factual dispute over whether BNSF regarded Shell as having an obesity-related condition.
On interlocutory appeal, the Seventh Circuit held that “being regarded as having a disability” under the ADA does not encompass conduct motivated by the likelihood or risk that an individual will develop a future qualifying impairment. This was because BNSF understood that Shell in fact did not have the disabling conditions at issue when he applied for the job. (As a reminder, and as the Court pointed out, its previous decision in Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), established that obesity is not an ADA-covered disability unless it is accompanied by an underlying physiological condition or disorder.) As such, BNSF could not have regarded him as having a disability.
The Court found support in Morriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2018) (and other cases), in which the Eighth Circuit concluded, “the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment” but it “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.”
But what about combating fear and stereotypes related to disabilities and disabling conditions? Isn’t that one of the major goals of the ADA? Yes. However, the Court rejected the EEOC’s reasoning that this should dictate a favorable outcome for Shell because the stereotype(s) involved here pertained to Shell’s obesity without an underlying physiological cause, which is not covered by the ADA.
As I read the Shell opinion, I recalled the case of the massage therapist whose employer fired her for going on a trip to Ghana because it feared she would contract Ebola. Coincidentally, the Eleventh Circuit issued its opinion in this case just last month. EEOC v. STME, LLC, Nos. 18-11121, 18-12277 (11th Cir. 9/12/19). In an outcome with reasoning consistent with Shell, the Eleventh Circuit rejected the EEOC’s argument that STME violated the ADA by regarding the therapist as having an impairment due to its belief in her future-contracting of Ebola. (The Court also rejected the EEOC’s association discrimination claim, based on STME’s alleged belief that the therapist would associate with people in Ghana whom STME believed were disabled by Ebola, because the only specific individual with whom she would associate in Ghana was her sister who did not have, and was not perceived as having, Ebola.)
It is tempting to take one purpose of the ADA — to prevent stereotypes about disabled individuals from motivating employment decisions — and apply it to fears that employers may have about the possibility that an individual could contract a disability. Yet, as these cases (and more) demonstrate, this reasoning simply does not square with the language in the ADA.