On Oct. 29, the U.S. Court of Appeals for the Seventh Circuit joined a growing number of circuits to hold that the Americans with Disabilities Act does not prohibit a company from declining to hire an individual because of concerns that the individual's obesity will develop into a physical impairment at a later time. This was the Seventh Circuit's second opinion in the span of a few months addressing whether obesity and obesity-related conditions fall within the scope of the ADA.

Ronald Shell applied to Burlington Northern Santa Fe Railroad (BNSF) for a job at one of its railyards. After BNSF told Shell that he would not be hired due to his obesity, he filed suit under the ADA, alleging that he was discriminated against on the basis of a disability. See Shell v. Burlington Northern Santa Fe Railway, No. 19-1030 (7th Cir. Oct. 29, 2019).

Shell sought to work as an intermodal operator for BNSF. That position would require him to perform three roles: groundsman, which requires climbing on railcars to insert and remove interlocking devices on containers; hostler, which requires driving trucks to move trailers in the railyard; and crane operator, which requires operating cranes to load and unload containers. BNSF considers intermodal operator to be a "safety-sensitive" position because it requires working on and around heavy equipment. After initially reviewing Shell's application, BNSF made him a job offer contingent upon his passing a medical examination.

Shell reported that his overall health was good and he had no medical conditions. The examination, however, revealed that he weighed 331 pounds and had a body-mass index (BMI) of 47.5. As a result, Shell was barred from employment under BNSF's policy that individuals in safety-sensitive positions may not have a BMI of 40 or greater. The reasoning behind this policy was that BNSF regarded individuals with Shell's BMI as having class III obesity, which places them at a significantly higher risk of developing medical conditions such as sleep apnea, diabetes or heart disease. BNSF believed that someone with class III obesity could develop one of these conditions unpredictably and suffer a debilitating health episode resulting in loss of consciousness, which could lead to dangerous consequences on the job.

BNSF moved for summary judgment, and the district court denied the motion. That court held that while obesity did not qualify as an "impairment" under the ADA, a fact question remained as to whether BNSF regarded Shell as having the obesity-related conditions of sleep apnea, diabetes and heart disease. The court then certified its order for interlocutory appeal pursuant to 29 U.S.C. Section 1292(b), defining the question for appeal to be whether the ADA's "regarded-as" provision encompasses conduct motivated by the likelihood that an employee will develop a future disability that falls within the scope of the ADA. The Seventh Circuit accepted the appeal and invited the EEOC to file an amicus brief explaining its position.

The Seventh Circuit reversed in an opinion by Judge Michael Scudder, joined by Judges William Bauer and Daniel Manion. In ultimately determining that the ADA does not apply to discrimination based on a future impairment, the court concentrated on the statutory language. The ADA defines a covered "disability" as "a physical or mental impairment that substantially limits one or more major life activities," a "record of such an impairment," or "being regarded as having such an impairment," 42 U.S.C. Section 12102(1). The statute clarifies that someone is "being regarded as having such an impairment" if they have been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity," 42 U.S.C. Section 12102(3)(A).

The court noted that, at the time Shell first brought his lawsuit, he would have stated a prima facie claim under the ADA for discrimination based on his obesity. But earlier this summer, the Seventh Circuit in Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), held that obesity qualified as an impairment for purposes of the ADA only if it is the result of an underlying physiological disorder or condition. In so holding, the Seventh Circuit joined the Second, Sixth, and Eighth circuits in relying on the EEOC's definition of "physical impairment" to be "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems." The court rejected the argument that obesity itself is a physiological disorder, because if it were then all obesity would be an impairment under the ADA, and up to 40% of the American adult population would automatically fall within the ADA's protections. The court described this as a "nonrealistic result." This holding removed Shell's ability to claim discrimination based on obesity and required that he focus on BNSF's statements about the effects of his weight.

The panel in Shell acknowledged that the relevant language in Section 12102(1)(C), defining "disability" to include "being regarded as having an impairment," is "written in the passive voice, resulting in some of the attendant clumsiness that English teachers warn of." That said, the court concluded that "the text plainly encompasses only current impairments, not future ones." Dispositive for the court was Congress' use of the word "having." In parsing the statutory language, the parties disputed whether that word was a gerund or a present participle. The court determined that "having" was a "present participle, used to form the progressive tense" and in this context it means "presently and continuously."

This reading, the court explained, is consistent with Section 12102(3)(A), which defines "being regarded as having" an impairment to be when an individual "has been subjected to an action … because of an actual or perceived physical or mental impairment." Thus, "if the impairment does not yet exist, it can be neither actual nor perceived." Under these provisions, for Shell to be regarded as having an obesity-related condition like sleep apnea, he must be viewed as currently suffering from that condition.

Sticking with the decision's heavy emphasis on grammar, the court then rejected the EEOC's argument that, pursuant to the Dictionary Act, 1 U.S.C. Section 1, "unless context indicates otherwise … words used in the present tense include the future as well as the present." The ADA's plain language, the court concluded, provided context that "indicates otherwise."

Because the evidence showed only that BNSF declined to hire Shell because it feared he would one day develop an impairment, Shell failed to establish that BNSF regarded him as having a disability. Therefore, BNSF was entitled to summary judgment.

Brett Legner is counsel in Mayer Brown's Chicago office and a member of the Supreme Court and appellate practice.