Future Disabilities Are Not Protected Under ADA, 7th Circuit Rules

Author: David B. Weisenfeld, XpertHR Legal Editor

November 22, 2019

The Americans with Disabilities Act (ADA) does not protect applicants or employees where an employer views them as at high risk for developing a future impairment, the 7th Circuit Court of Appeals has ruled.

The Burlington Northern Santa Fe Railway Company (BNSF) revoked a conditional job offer for an equipment operator position, deemed a safety-sensitive position, after the applicant failed a medical examination. Based on the exam, the company's chief medical officer determined that Ronald Shell had class III obesity based on his body mass index.

The company reasoned that prospective employees with class III obesity are at substantially higher risk for developing certain conditions which could result in sudden incapacitation and pose a safety risk, including:

  • Sleep apnea;
  • Diabetes; and
  • Heart disease.

While there is no question those conditions are qualifying impairments under the ADA, Shell did not have any of them at the time he applied to work for BNSF.

In ruling for the company, the federal appellate court found the text of the ADA covers only current impairments - not future ones. It explained that Shell did not show that BNSF regarded him as having a disability or that he is otherwise currently disabled.

Nonetheless, employers should not view this decision as giving them free rein. "While the court found that denying employment based on the potential of future impairments does not violate the ADA, employers should be careful when taking such action," said Stacey Smiricky, a Chicago employment attorney with Faegre Baker Daniels.

Smiricky noted that the Equal Employment Opportunity Commission likely will continue to pursue such cases based on its own regulations pertaining to predisposition to certain diseases because of an underlying health condition.

The 8th Circuit Court of Appeals reached a similar result in a 2016 case, Morriss v. BNSF Railway Company, that also involved BNSF rejecting a job applicant based on his body mass index.

Earlier this year, the 7th Circuit also ruled that the ADA did not protect an obese bus driver whose employer refused to let him return to work. In that case, the court reasoned that obesity is an ADA impairment only if it is the result of an underlying "physiological disorder or condition."