I‘m Not Hiring You Due to a Disability - American Society of Employers - Anthony Kaylin

I‘m Not Hiring You Due to a Disability

ADAAt first blush, it would seem taking any action on a potential disability would violate the Americans with Disabilities Act (ADA).  Many employers will do pre-employment medical exams specifically to spot potential workers’ compensation possibilities.   Wouldn’t not hiring based on a potential issue of disability be discrimination per se?

Not necessarily, as a recent case ruled. In  Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030 (7th Circuit Court of Appeals, 10/29/19), Burlington Northern Sante Fe Railroad Company (BNSF) 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 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, BNSF 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.

Shell received a conditional offer of employment subject to passing a medical exam.  Shell was found to have very good overall health and no medical conditions. A physical exam also 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.

BNSF rescinded its offer of employment.  BNSF 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 on the basis of a perceived disability in violation of the ADA.  BNSF tried to get the case dismissed at summary judgement, but the trial court denied the motion saying that his perceived disability is a matter for the jury. 

In order to clarify the definition of a disability in this situation, BNSF filed an interlocutory appeal.  The district court defined the question presented on appeal as “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”

The 7th Circuit Court of Appeals ruled, after a long discussion of the plain meaning of the words of the ADA, that the plain language prohibits actions based on an existing impairment or the perception of an existing impairment, but does not prohibit discrimination based on a perception that a physical characteristic – as opposed to a physical impairment – may eventually lead to a physical impairment under the Act.  BNSF did not consider Shell’s obesity as a disability but as something that could lead to a physical impairment down the road, and as such, was not covered by the language of the ADA.

The court then stated that “[w]ith only proof that BNSF refused to hire him because of a fear that he would one day develop an impairment, Shell has not established that the company regarded him as having a disability or that he is otherwise disabled. Absent this showing, he cannot prevail on his claim of discrimination, and BNSF is entitled to summary judgment.”

Therefore, the perceived fear of injury in a safety-sensitive job at minimum could be a reason for a non-hire.   However, it cannot be based on protected characteristics like gender, pregnancy, etc. that a hiring manager may believe could lead to a potential injury.  HR needs to ensure managers understand the fine line of hiring given this type of scenario.

 

Source:  Jackson Lewis 11/11/19 

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