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No ADA Protection for Discrimination Based on Future Impairments

An employee seeking protection from discrimination based on presumed future medical issues does not have a claim under the Americans with Disabilities Act (ADA).
Ronald Shell was employed at Corwith Rail Yard for over 30 years. When Burlington Northern Santa Fe Railway Company (BNSF) purchased Corwith, it invited all the employees to apply for new positions. Shell applied for the equipment operator position; it would require him to climb railcars to insert and remove parts that interlock the containers, drive the trucks that move trailers, and operate the cranes used to load and unload containers. It was classified as a “safety-sensitive position.” Shell received a conditional offer of employment that required him to pass a medical examination. Shell did not have any medical problems, however, his evaluation showed that he was significantly overweight. His Body Mass Index exceeded the allowable number, a number that was selected out of concern that those individuals were at higher risk of certain conditions such as sleep apnea, diabetes, and heart disease. If any of these conditions came on suddenly, resulting in loss of consciousness, dangerous situations could result. Shell was disqualified unless he lost 10% of his weight and maintained it for six months. He sued under the ADA for being “regarded as” disabled.
The case was reviewed by the Seventh Circuit Court of Appeals. Shell was unable to argue that his obesity was a disability because of prior court decisions determining that it must be accompanied by an underlying condition. Instead, he based his claim on BNSF’s fear that he would develop medical problems in the future. Under the ADA, an individual is protected if he/she is “regarded as having a [physical or mental] impairment.” Honing in on the word “having,” the appellate court concluded that it only applied to “current impairments, not future ones.” The court looked to the decisions reached by other circuit courts on this issue (8th, 9th, 10th and 11th): all of them had concluded that the language does not apply where the employer perceived the person as healthy now but has a potential to become disabled later. The case was dismissed.