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Shell v. Burlington Northern Santa Fe Railway Co.

United States Court of Appeals, Seventh Circuit

October 29, 2019

Ronald Shell, Plaintiff-Appellee,
Burlington Northern Santa Fe Railway Company, Defendant-Appellant.

          Argued September 26, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-11040 - Sharon Johnson Coleman, Judge.

          Before Bauer, Manion, and Scudder, Circuit Judges.


         Burlington Northern Sante Fe Railroad Company refused to hire Ronald Shell solely because it believed his obesity presented an unacceptably high risk that he would develop certain medical conditions that would suddenly incapacitate him on the job. Shell sued BNSF under the Americans with Disabilities Act, alleging that BNSF discriminated against him based on a disability. BNSF moved for summary judgment and argued that the ADA's definition of "disability" is not met where an employer regards an applicant as not presently having a disability but at high risk of developing one. Concluding that the ADA does reach discrimination based on a future impairment, the district court denied BNSF's motion. We come to a contrary conclusion and reverse.


         Ronald Shell began working at Chicago's Corwith Rail Yard in 1977. The Corwith Yard is a hub at which freight containers are loaded on and off trains before continuing the journey to their intended destinations. Shell occupied different positions over his 33 years at the railyard, including as a groundsman, driver, and crane operator. All indications are that Shell was a productive and skilled employee.

         By 2010, Burlington Northern Santa Fe Railway Company owned Corwith Yard, and Shell worked for the company that BNSF contracted with to handle its operations. Later that year, BNSF decided to assume the railyard's operations itself. This ended the employment of those like Shell who worked for the operations company, but BNSF invited those employees to apply for new positions.

         Shell applied to work as an intermodal equipment operator. The position required the employee to perform three roles-that of a groundsman, who climbs on railcars to insert and remove devices that interlock the containers; a hostler, who drives the trucks that move trailers; and a crane operator, who operates the cranes used to load and unload containers. BNSF classifies this as a "safety-sensitive" position because it requires working on and around heavy equipment. Upon reviewing Shell's application, BNSF extended a conditional offer of employment. One of the conditions was that Shell pass a medical evaluation.

         Dr. Michael Jarrad, BNSF's chief medical officer, was responsible for making the decision. Dr. Jarrad reviewed a medical history questionnaire, in which Shell described his overall health as very good and did not report any medical conditions. A physical exam then revealed that Shell was 5' 10" tall and weighed 331 pounds, translating to a body-mass index of 47.5.

         BNSF does not hire applicants for safety-sensitive positions, like the one Shell was applying for, if their BMI is 40 or greater. People with BMIs in this range are considered to have class III obesity. BNSF says that the reasoning behind its BMI policy is that prospective employees with class III obesity are at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease and the unpredictable onset of those conditions can result in sudden incapacitation. BNSF believes that someone with class III obesity could unexpectedly experience a debilitating health episode and lose consciousness at any moment, including while operating dangerous equipment-a result that could be disastrous for everyone in the vicinity.

         Applying BNSF's BMI policy, Dr. Jarrad decided that Shell was not medically qualified for the job. BNSF informed Shell of his disqualification but told him that his application could be reconsidered if he lost at least 10% of his weight, maintained the weight loss for at least six months, and submitted to further medical evaluations if requested.

         Shell sued BNSF, alleging that its refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA. BNSF moved for summary judgment after the close of discovery. The company argued that Shell did not have a disability within the meaning of the ADA because his obesity was not a qualifying impairment and no evidence suggested that BNSF regarded him as presently having such an impairment. In the alternative, BNSF asserted that even if its refusal to hire Shell reflected discrimination, its BMI policy fit within the ADA's business-necessity defense.

         The district court denied BNSF's motion, holding that Shell's obesity was not a qualifying impairment but that a disputed factual question remained-whether BNSF regarded Shell as having the allegedly obesity-related conditions of sleep apnea, heart disease, and diabetes. The district court also declined to grant BNSF summary judgment based on the business-necessity defense because the company had not ...

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