Employers may be well aware of the application of the Americans with Disabilities Act (ADA) in situations where an employee or applicant is “disabled” as that term is defined under the ADA. What about a situation in which an employer purportedly discriminates against an applicant because the employer believes the applicant is merely at risk for developing a qualifying impairment? That is, does the ADA apply where an employer chooses not to hire an employee who does not currently have any impairments but who is at risk for developing such an impairment? The United States Court of Appeals for the Seventh Circuit—which oversees Illinois, Indiana, and Wisconsin—recently considered this question.
Background
The applicant applied to work as an intermodal equipment operator. The employer classified the position as a “safety-sensitive” position because it required working on and around heavy equipment. The employer extended the applicant a conditional offer of employment that was subject to the applicant passing a medical evaluation.
The applicant underwent a medical evaluation. The applicant described his health as very good and did not report any medical conditions. A physical exam did reveal that the applicant was 5’10” tall and weighed 331 pounds, which translated to a body-mass index (BMI) of 47.5. The employer maintained a policy of not hiring applicants for “safety-sensitive” positions if the applicant’s BMI is 40 or greater, which classifies as “class III obesity.” As stated by the Court in this case, the employer’s justification for this 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 these conditions can result in sudden incapacitation. [The employer] 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.
Pursuant to the employer’s policy, the employer informed the applicant that he was not medically qualified for the job.
The applicant then filed a lawsuit against the employer alleging discrimination on the basis of perceived disability in violation of the ADA. The employer moved for a judgment prior to any trial in the case, but the trial court disagreed and denied the employer’s motion for a judgment.
Court’s Decision
The Court began by noting that to state a claim for discrimination under the ADA, a plaintiff must show: (1) he is disabled, (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation, and (3) the adverse job action was caused by his disability. Under the ADA, a “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment….” The statute adds that someone is “being regarded as having such an impairment” when “he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
Considering this statutory language, the Court noted that the evidence was clear that the employer did not believe that the applicant had any impairment when it refused his application. The Court found that under the ADA, “[i]f the impairment does not yet exist, it can be neither actual nor perceived.” Accordingly, the Court concluded that the applicant could not state a claim for discrimination under the ADA and reversed the trial court’s denial of the employer’s motion for judgment.
Takeaway
This case serves to provide an interesting look at the coverage of the ADA. While a person could reasonably guess that if the ADA protects against discrimination on the basis of disabilities, then surely it must also protect against discrimination on the basis of increased risk of becoming disabled. However, as this case demonstrates, that person would be incorrect, at least in the 7th Circuit under federal law. Employers should remember that this decision is not controlling nationwide and while other Circuit Courts have ruled similarly previously, the next Circuit Court to consider the issue may choose to rule differently. Employers should be aware of the law in their specific jurisdictions, which includes knowing if the law is unsettled. Moreover, this case deals with the federal ADA law, and consideration must also be given to any applicable state law requirements.
Finally, while this decision came out in the employer’s favor here, employers must be extremely cautious when making any employment decisions based on the employer’s knowledge of an applicant or employee’s physical or medical condition(s). Employers should consult experienced employment counsel or other experts in the area if questions arise.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
