On October 29, 2019, the Seventh Circuit held that Burlington Northern Santa Fe Railway Company (“BNSF”) did not violate the Americans with Disabilities Act (“ADA”) by refusing to hire a job applicant due to his obesity. The applicant, Ronald Shell (“Shell”) sought a job with BNSF as an intermodal equipment operator. The position required performance of various duties including climbing on railcars, driving trucks, and operating cranes to load and unload containers.

BNSF gave Shell a conditional offer contingent on his passage of a medical examination. Although Shell reported overall good health and did not report any medical conditions to BNSF’s chief medical officer, the physical exam revealed a body-mass index of over 40. BNSF had a long standing policy of not hiring individuals with a body-mass index of over 40 for the intermodal equipment operator position. It reasoned that prospective employees with that body-mass index are at a substantially higher risk of developing certain conditions like sleep apnea, diabetes and heart disease where the unpredictable onset of those conditions can result in sudden incapacitation. Based on this policy, Shell did not qualify for the position. BNSF informed Shell that he could reapply for the position if he lost at least 10% of his weight and maintained the weight loss for at least six months.

Shell filed a suit against BNSF arguing that BNSF discriminated against him due to a perceived disability in violation of the ADA. In its opinion, the Seventh Circuit held that the fear that an applicant would one day develop a disability is not enough to establish that the company regarded the applicant as having that disability. Rather, the company must believe that the applicant presently has a disability in order to violate the “regarded as” standard of the ADA. Based on this reasoning, an employer can screen out applicants based on an indicator that individuals are more likely to develop a disability later on, so long as that indicator is not presently a disability, without violating the ADA. The Seventh Circuit rested its decision solely on its analysis of the ADA, and employers should be mindful that the decision could have been different if the facts had implicated the Genetic Information Non-Discrimination Act or if the claim had been brought under a stricter state or local law.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.