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On October 29, 2019, a panel for the Seventh Circuit reversed the lower court’s decision denying Burlington Northern Santa Fe Railway Company’s (“BNSF”) motion for summary judgment holding that the Americans with Disabilities Act (“ADA”) only protects discrimination against current ailments, not ones that may later evolve due to an individual’s weight. Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030.
Ronald Shell (“Shell”) brought his ADA suit against BNSF after BSNF refused to hire him for a “safety-sensitive” job because of his weight, reasoning that his obesity could result in future ailments. Shell had been offered the job contingent on passing a medical evaluation, but his evaluation revealed that he had a body mass index (“BMI”) of 47.5. Because BSNF had a policy of not allowing persons with BMIs of 40 or greater to perform “safety sensitive” jobs, Shell was denied the job. The reason behind BNSF’s policy is that prospective employees with such BMIs “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.”
United States District Judge Coleman denied BNSF’s motion for summary judgment because she found a dispute of material fact existed. On appeal, the Seventh Circuit reversed, holding the ADA does not protect against discrimination based on future ailments, only current ailments. In so holding, the panel reviewed the statutory language of the ADA and found that subsection (C) of the definition of disability — “being regarded as having [a physical or mental] impairment” — can only be understood as meaning a current ailment and not a future one. 42 U.S.C. § 12102(1)(C).
Employers need to be vigilant when handling employment issues related to obesity; however, it seems that the main takeaway from Shell v. Burlington Northern Santa Fe Railway Company, is that current ailments are the focus and protected by the ADA, not ailments that an employee may develop in the future due to his/her obesity. It remains to be determined whether this holding will expand into other types of disability analyses.