“Clear glass bathroom scale on dark brown wood floors” by yourbestdigs is licensed under CC BY 2.0
Mike Chernoff, Associate Member, University of Cincinnati Law Review
I. Introduction
Imagine a potential employer denying your application for a job because of your weight. This is what occurred in Shell v. Burlington Northern Santa Fe Railway Company. Americans with disabilities are protected from discrimination by the Americans with Disabilities Act. Many disabilities are protected by this Act, but obesity is generally not considered a disability under the statute. Recently, an applicant that was denied a position based on their weight challenged that the employer discriminated against them because the future complications from their weight was a disability. On appeal to the United States Court of Appeals for the Seventh Circuit, the court held that disabilities must be present at the time of the alleged discrimination. This decision created another factor for applicants and employers to consider during the hiring process.
II. Background
The Americans with Disabilities Act (“ADA”) protects Americans with disabilities from discrimination by providing standards that address this discrimination.[1] Under the ADA, a disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[2] The statute does not list specific disabilities.[3] The ADA states that “no covered entity shall discriminate against a qualified basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[4] In order to prove an ADA violation, a plaintiff must show: “(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability.”[5]
Courts disagree whether obesity is considered a disability under the ADA. Obesity is defined as a body-mass index of greater than 30.[6] The Second, Sixth, Seventh, and Eight Circuit Courts, and a majority of district courts, hold that obesity is an impairment under the ADA only if it is the result of an underlying “physiological disorder or condition.”[7] These courts looked to prior interpretations of the Equal Employment Opportunity Commission (“EEOC”) for guidance. The EEOC states that “impairment” does not include weight that is within “normal” range and not the result of a physiological disorder.[8] However, a small number of district courts have held that extreme obesity is an impairment under the ADA even without an underlying physiological cause.[9] This minority of courts construe the EEOC interpretive guidance as stating “weight may be an impairment when it falls outside the normal range or occurs as the result of a physiological disorder.”[10] Courts continue to hear cases concerning the application of ADA protections to those that suffer from obesity.
III. Shell v. Burlington Northern Santa Fe Railyard
Earlier this year, the United States Court of Appeals for the Seventh Circuit decided a case concerning a worker that was denied a position due to his weight and the future complications that may arise therefrom in the case of Shell v. Burlington Northern Santa Fe Railway Company.[11] In 1977, Ronald Shell began work at the Corwith Rail Yard in Chicago.[12] Through 33 years of service, Shell held many positions at the railyard and was a productive and skilled employee.[13] In 2010, Burlington Northern Santa Fe Railway Company (“BNSF”) owned Corwith Yard, but an outside organization handled the operations of the railyard.[14] Shell worked for this outside organization.[15] Later in 2010, BNSF assumed the railyard’s operation and invited the previous operator’s employees to apply for new positions with BNSF.[16]
Shell applied to work as an intermodal equipment operator, which required the employee to perform three roles: (1) groundsman, one who climbs on railcars to insert and remove devices that interlock the containers, (2) hostler, one who drives the trucks that move trailers, and (3) crane operator, one who operates the cranes used to load and unload containers.[17] Due to the position’s nature of working on and around heavy equipment, BNSF classified this position as “safety-sensitive.”[18] Shell was subsequently given a conditional offer of employment, with one of the conditions being that Shell pass a medical evaluation.[19]
Shell had described his overall health as very good and did not report any medical conditions on a medical history questionnaire.[20] However, a physical exam then found Shell to be 5’ 10” tall and weighed 331 pounds, equating to a BMI of 47.5.[21] BNSF had a policy of not hiring applicant with a BMI of 40 or greater for safety-sensitive positions.[22] BNSF stated that the reasoning behind the policy was that prospective employees of this BMI are at a substantially higher risk of developing certain conditions, such as sleep apnea, diabetes, and heart disease.[23] BNSF believes that someone at risk for these conditions could “unexpectedly experience a debilitating health episode” and lose consciousness putting everyone in the vicinity in danger.[24] Per BNSF policy, Shell was not medically qualified for the role, but Shell was informed that his application could be reconsidered if he lost 10% of his weight, maintained the weight loss for at least six months, and submitted to further medical evaluations if requested.[25]
Shell sued BNSF and alleged that this hiring denial constituted discrimination on the basis of a perceived disability in violation of the ADA.[26] Shell argued that this disability was not based on his obesity, but rather the potential future impairments stemming from the obesity were a disability.[27] BNSF moved for summary judgment and was denied by district court.[28] BNSF subsequently appealed this denial to the Seventh Circuit Court of Appeals.[29]
The court first looked to the plain language in the ADA, which defines “disability” as “being regarded as having [a physical or mental] impairment.”[30] The court believes this language clearly covers only current impairments, not future ones.[31] Shell could only prove that BNSF refused to hire him because of a fear that he would one day develop an impairment, and this does not equate to not hiring him because of a disability.[32]
The court also referenced similar cases heard by other circuits on similar “future disability” issues; all of which held that the disability must be present at the time of the alleged discrimination.[33] For example, in Morriss v. Burlington Northern Santa Fe Railway Company, an applicant was denied a similar role in a nearly identical situation with their weight being a key factor in the denial.[34] This applicant argued that BNSF perceived them as having a current physical impairment, and therefore should be protected by the ADA.[35] The Eight Circuit decided against this argument stating that “[t]he ADA 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.”[36] Due to the language of the statute and the prior rulings from various circuit courts, the seventh circuit court ruled that BNSF was entitled to summary judgment and had not discriminated against Shell.[37] The court blocked another argument that viewed obesity as a disability, reaffirming the majority view of the circuits that obesity is not a disability under the ADA without an underlying physiological condition.
IV. Discussion
Although obesity may cause complications later in life for a person, these complications are not guaranteed to occur. In many cases, modest weight loss can improve or prevent the health problems that are associated with obesity.[38] However, there are many underlying causes and risk factors associated with obesity that are out of that person’s control, and these people are protected by the ADA.[39] Due to this distinction, the court made the correct decision in stating that future complications should not be considered when deciding whether a future disability is protected under the ADA. The court recognized that without an underlying condition, many obese people may have the opportunity to remedy the situation and decrease the risk of future complications.
As more cases reinforce that obesity is not considered a disability, employers likely will have less concern in making hiring decisions based on a person’s weight and the effects of this characteristic. A business may make this type of decision due to the benefits that the business’s finances may see from hiring people that are not suffering from obesity. Absenteeism caused by obesity costs the American economy $4.3 billion annually.[40] Employers may also have concerns about the cost of health insurance for an obese employee. From 2009 to 2018, employer contributions to health insurance premiums rose fifty-one percent.[41] Twenty-one percent of all healthcare costs in the United States are associated with obesity-related illnesses.[42] In a time with rising healthcare costs and increasing pressure on employers for contributions to health plans, the applicant’s weight and the complications that may arise from this number may become a factor that employers consider when hiring certain employees. These decisions would be legal based on the decision of the court inShell. As the majority view continues to expand, the factor of an applicant’s weight being a major point of contention may become a reality for some employers and the applicants themselves.
V. Conclusion
The majority of courts are continuing to rule that obesity is not a disability as defined by the ADA. The Seventh Circuit correctly held that potential future complications stemming from obesity also do not receive protection from the ADA This was a wise decision because there is the possibility that the risk of these complications can be eliminated over time. However, decisions declaring ADA protection does not extend to obesity and obesity-caused complications may allow employers to factor obesity into hiring decisions and has created another worrisome criterion for applicants.
[1]Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2019).
[2]Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(1)(A) (2019).
[3]Id.
[4]Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a) (2019).
[5]Roberts v. City of Chi., 817 F.3d 561, 565 (7th Cir. 2016).
[6]Defining Adult Overweight and Obesity,Centers for Disease Control and Prevention(Apr. 11, 2017), https://www.cdc.gov/obesity/adult/defining.html. Body-mass index is a ratio of a person’s weight to his height.
[7]Richardson v. Chi. Transit Auth. 926 F.3d 881, 887-888 (7th Cir. 2019). See, e.g., Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2d Cir. 1997).
[8]Richardson, 926 F.3dat 889 (quoting 29 C.F.R. §1630.2(h)).
[9]Richardson, 926 F.3d at 887. See, e.g. Velez v. Cloghan Concepts, LLC, 387 F. Supp. 3d 1072 (S.D. Cal. 2019); McCollum v. Livingston, 2017 U.S. Dist. LEXIS 19602 (S.D. Tex. 2017); EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688 (E.D. La. 2011).
[10]Velez 387 F. Supp. 3d at 1076. See EEOC v. Res. For Human Dev., Inc. 827 F. Supp. 2d at 695.
[11]Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030, 2019 U.S. App. LEXIS 32367, at *1 (7th Cir. Oct. 29, 2019).
[12]Id. at *2.
[13]Id.
[14]Id.
[15]Id.
[16]Id.
[17]Id. at *2-3.
[18]Id. at *3.
[19]Id.
[20]Id.
[21]Id.
[22]Id.
[23]Id. at *3-4.
[24]Id. at *4.
[25]Id.
[26]Id.
[27]Id. at *7.
[28]Id. at *5.
[29]Id.
[30]Id. at *8 (quoting 42 USC § 12102(1)(C)).
[31]Shell, 2019 U.S. App. LEXIS 32367, at *8.
[32]Id. at *11.
[33]Id. at *10-11. See alsoEEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019); EEOC v. Burlington N. Santa Fe Ry. Co., 902 F.3d 916 (9th Cir. 2018); Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016); Morriss v. Burlington N. Santa Fe Ry. Co., 817 F.3d 1104 (8th Cir. 2016).
[34]Shell, 2019 U.S. App. LEXIS 32367, at *10; Morriss, 817 F.3d at 1106.
[35]Shell, 2019 U.S. App. LEXIS 32367, at *10; Morriss, 817 F.3d at 1113.
[36]Shell, 2019 U.S. App. LEXIS 32367, at *10-11; Morriss, 817 F.3d at 1113.
[37]Shell, 2019 U.S. App. LEXIS 32367, at *12.
[38]Obesity: Symptoms and Causes, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/obesity/symptoms-causes/syc-20375742.
[39]Id.See Richardson v. Chi. Transit Auth. 926 F.3d 881, 887-888 (7th Cir. 2019); Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2d Cir. 1997).
[40]Economic Costs of Obesity, National League of Cities, https://www.healthycommunitieshealthyfuture.org/learn-the-facts/economic-costs-of-obesity/.
[41]Matthew Rae, et al., Tracking the Rise in Premium Contributions and Cost-Sharing for Families with Large Employer Coverage, Health System Tracker, (Aug. 14, 2019), https://www.healthsystemtracker.org/brief/tracking-the-rise-in-premium-contributions-and-cost-sharing-for-families-with-large-employer-coverage/.
[42]Economic Costs of Obesity, supra note 38.
