SEVENTH CIRCUIT RESTRICTS DISABILITY CONSIDERATION TO PRESENT CONDITION

Let’s say you own a logging company.
You need to hire a new operator for heavy machinery, and the job is highly safety sensitive.
Tim, a qualified heavy machinery operator with 20 plus years of experience, applies for the position.
The interview goes well, and you offer Tim the position on the condition that Tim passes a medical exam.
Tim’s exam concludes that he is in overall good health, though he is deemed obese.
You are concerned, however, that Tim’s obesity may result in health conditions in the future, such as sleep apnea, diabetes and heart disease.
You are concerned that one or more of these conditions could incapacitate Tim while he operates heavy machinery.
This could cause injury or worse to Tim, other employees, or bystanders.
Even though he does not currently have any of these conditions, you do not hire Tim.
Tim later claims you violated the Americans with Disabilities Act (“ADA”).
Did you violate the ADA?
Not according to a recent Seventh Circuit Court of Appeals decision, Shell v. Burlington Northern Santa Fe Railway Company.
The ADA prohibits discrimination against job applicants on the basis of a disability.
A disability includes being regarded as having an actual or perceived physical or mental impairment.
Before Shell, employers may have assumed that failing to hire an applicant because of a physical characteristic (such as obesity) that could lead to a future disability would violate the ADA.
The Shell court, however, determined that being “regarded as” having an impairment covers only current impairments, not non-disability conditions which could lead to a future disability.
Similarly, while obesity might logically be considered a disability under the ADA, Shell confirms that obesity alone is not protected.
A claimant must provide proof that obesity was caused by an underlying physiological disorder or condition.
Whether other courts will interpret Shell narrowly or broadly is still an open question.
While the Shell court found in favor of the employer, the case highlights how complex and stressful it can be to make hiring decisions which comply with the ADA and other laws.
Your FOS attorney can guide you through these and other employment issues.