Refusal to Hire Due to Obesity Did Not Violate the ADA

​A company did not violate the Americans with Disabilities Act (ADA) when it refused to hire an applicant whose obesity presented an unacceptably high risk that he would develop an incapacitating condition, the 7th U.S. Circuit Court of Appeals ruled.

The plaintiff began working at Chicago's Corwith Rail Yard, starting in 1977. The Corwith Yard is a hub where freight containers are loaded on and off trains before continuing to their intended destinations. The plaintiff occupied different positions over 33 years at the railyard, including as a groundsman, driver and crane operator. He was a productive and skilled employee.

By 2010, Burlington Northern Santa Fe Railroad Co. (BNSF) owned Corwith Yard and the plaintiff worked for the company BNSF contracted with to handle its operations. Later that year, BNSF decided to assume the railyard's operations itself. This ended the employment of those like the plaintiff who worked for the operations company, but BNSF invited the employees to apply for new positions. The plaintiff applied for an intermodal equipment operator position.

The job required him to perform three roles—that of a groundsman, who climbs on railcars to insert and remove devices that interlock containers; a hostler, who drives the trucks that move trailers; and a crane operator, who operates the cranes used to load and unload containers.

BNSF classifies this job as a safety-sensitive position because it requires working on and around heavy equipment. Upon reviewing the plaintiff's application, BNSF extended a conditional offer of employment. One condition was that he pass a medical evaluation.

After reviewing the plaintiff's medical history questionnaire, BNSF's chief medical officer described the plaintiff's overall health as very good and did not report any medical conditions. A physical exam then revealed that the plaintiff was 5 feet 10 inches tall and weighed 331 pounds, translating to a body mass index of 47.5. BNSF does not hire applicants for safety-sensitive positions, like the one the plaintiff was applying for, if their BMI is 40 or greater. People with BMIs in this range are considered to have class III obesity.

The reasoning behind this BMI policy is that prospective employees with class III obesity are at a substantially higher risk of developing certain conditions like sleep apnea, diabetes and heart disease, and the unpredictable onset of those conditions can result in sudden incapacitation. BNSF believes that someone with class III obesity could unexpectedly experience a debilitating health episode and lose consciousness at any moment, including while operating dangerous equipment—a result that could be disastrous for everyone in the vicinity.

Applying this BMI policy, BNSF's chief medical officer decided that the plaintiff was not medically qualified for the job. The plaintiff sued BNSF, alleging that its refusal to hire him constituted discrimination in violation of the ADA. BNSF moved for summary judgment.

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The company argued that the plaintiff did not have an ADA disability because his obesity was not a qualifying impairment and BNSF did not regard him as presently having such an impairment. In the alternative, BNSF asserted that even if its refusal to hire the plaintiff reflected discrimination, its BMI policy fit within the ADA's business-necessity defense.

The district court denied BNSF's motion, holding that a disputed question remained as to whether BNSF regarded the plaintiff as having the allegedly obesity-related conditions of sleep apnea, heart disease and diabetes. The district court declined to grant BNSF summary judgment based on the business-necessity defense.

On appeal, the 7th Circuit reviewed whether the ADA's "regarded-as provision" encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA. The ADA's definition of "disability" includes "being regarded as having an impairment," which requires being "subjected to an action … because of an actual or perceived physical or mental impairment."

The appeals court found that, if the impairment does not yet exist, it can be neither actual nor perceived. The plaintiff showed only that BNSF refused to hire him because of a fear that he would one day develop an impairment, and had not established that the company regarded him as having a disability or that he was otherwise disabled. Thus, the court ruled, BNSF was entitled to summary judgment.

Shell v. Burlington Northern Santa Fe Railway Co., 7th Cir., No. 19-1030 (Oct. 29, 2019).

Professional Pointer: The ADA Amendments Act expanded the definition of disability to include many conditions previously deemed unprotected. Nonetheless, employers can sometimes consider physical conditions that do not yet rise to the level of a disability, particularly if they relate to safety concerns.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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