Sunday, March 11, 2018

Shell v. BNSF Railway: Is it unlawful to discriminate against someone who is obese because he may become disabled in the future?

In Shell v. BNSF Railway, No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018), District Court Judge Sharon Coleman denied the defendant's motion for summary judgment on Ronald Shell's claim that the defendant violated the Americans with Disabilities Act by withdrawing a job offer because of his obesity. Coleman's decision stands apart from most other decisions on this issue, which have rejected coverage of obesity-related discrimination under the ADA.

Noting uniform agreement among the courts of appeals, Coleman rejected coverage based on obesity that is not the result of an underlying physiological disorder. She concluded, nonetheless, that Shell's claim was covered because the defendant treated Shell as if he had an impairment related to his obesity.
Here, BNSF has readily admitted that it refused to hire Shell based on its fear that he would develop sleep apnea, diabetes, or heart disease, and that as a result he might become suddenly and unexpectedly incapacitated while performing his duties. Shell does not suffer from any of these conditions at present . . . .  But there can be no doubt that, at a minimum, there exists a dispute of material fact as to whether BNSF is treating Shell as if he does suffer from those conditions. 
Coleman's decision is inline with EEOC v. Amsted Rail Co., No. 14-cv-1292-JPG-SCW (S.D. Ill. Nov. 16, 2017), where the court concluded that the defendant regarded the plaintiff as disabled when it refused to hire him because it feared he posed a safety risk in light of his medical history.

By contrast, in the recent decision EEOC v. Massage Envythe court rejected a claim by the EEOC that the defendant violated the ADA by firing an employee because she might become disabled in the future as the result of voluntary conduct. In that case, because the plaintiff's potential for becoming disabled in the future was tied to voluntary conduct, it might be distinguishable from Shell and Amsted Rail. Moreover, as Judge Coleman noted, a decision based on a fear that an individual will become disabled in the future is grounded in the "sort of myth, fear, or stereotype which the ADA is meant to guard against." In Coleman's view, the defendant has contended that, "although it is prohibited by law from discriminating against individuals who actually have disabilities, it should be free to discriminate against those who are likely to have disabilities but have not yet developed them." She describes this argument as "facially illogical" and "antithetical to the protections afforded by the [ADA]."

On the other hand, the reasoning in Shell and Amsted Rail appears to be contrary to the text of the ADA, which would seem to limit coverage to discrimination based on a record of a disability or a present impairment. If an employer bases a decision on the likelihood that an employer may develop an impairment, it is not basing its decision on a present impairment but the potential for a future impairment. Congress drafted the ADA to cover certain classes of individuals, and the text of the ADA does not appear to cover discrimination based merely on the potential to develop an impairment in the future.

Right now, Coleman's interpretation seems to be an outlier, but if widely adopted, it could greatly expand coverage of obesity-related disability claims.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.