September 26, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:15-cv-11040 -
Sharon Johnson Coleman, Judge.
Bauer, Manion, and Scudder, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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