Does it include an employer’s belief that an employee or applicant is at risk of developing a disability?
By Matthew Courtner
Employers across America are undoubtedly familiar with the Americans with Disabilities Act (“ADA”). Under the ADA, it is unlawful for an employer to “discriminate against a qualified individual on the basis of a disability.” 42 U.S.C. § 12112(a) (2019). Although those unfamiliar with the ADA would expect the determination of a “disability” to be perhaps obvious and routine, that is often not the case.
Under the ADA, “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a records of such an impairment; or (C) being “regarded as” having such an impairment.” 42 U.S.C. § 12102(1) (2019). Under the ADA, an employee or prospective employee satisfies the regarded as prong if he or she “establishes that 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.” 42 U.S.C. § 12102(3)(A) (2019). In this article, we will examine the scope of the “regarded as” prong for future disabilities.
As you would likely expect, the ADA seeks to broadly define what conditions qualify as a “disability.” However, the Seventh Circuit Court of Appeals and the Eleventh Circuit Court of Appeals both recently placed a limit on an employer’s liability for regarding an employee or prospective employee as being disabled. We will first briefly examine the facts of each case and then the Seventh Circuit and Eleventh Circuit’s legal reasoning.
E.E.O.C. v. STME, LLC
In E.E.O.C. v. STME, LLC, Kimberly Lowe (“Lowe”) worked at Massage Envy as a massage therapist. E.E.O.C. v. STME, LLC, 938 F.3d 1305, 1311 (11th Cir. 2019). In September 2014, Lowe asked for time off to visit her sister in Ghana. Id. Massage Envy’s manager initially approved Lowe’s time off, but three days before she was to leave, one of Massage Envy’s owners, Ronald Wuchko, advised Lowe that Massage Envy would terminate her if she went to Ghana. Id. Because there had been an Ebola outbreak in neighboring countries, Wuchko feared that Lowe would contract the Ebola virus and bring it back to America. Id. Because Lowe declined to cancel her trip, Wuchko terminated Lowe’s employment. Id.
Lowe went to Ghana and did not contract the Ebola virus. Id. Upon her return, even though she did not have the Ebola virus, Massage Envy did not allow Lowe to return to work. Id. Lowe filed a charge of discrimination with the Equal Employment Opportunity Commission (“E.E.O.C.”), alleging that Massage Envy discriminated against her because it “‘perceived [her] as disabled or . . . as having [the] potential to become disabled,’ in violation of the ADA.” Id. at 1312.
Shell v. Burlington Norther Santa Fe Railway Company
In Shell v. Burlington Northern Santa Fe Railway Company, Ronald Shell (“Shell”) began working at Corwith Rail Yard in 1977, but in 2010 Burlington Northern Santa Fe Railway Company (“BNSF”) assumed control of Corwith Rail Yard. Shell v. Burlington Northern Santa Fe Railway Company, 941 F.3d 331, 333 (7th Cir. 2019). Although Shell’s employment ended, BNSF invited Shell and others to reapply. Id. at 334. Shell applied for work as an equipment operator, which was a “safety-sensitive position because it require[d] working on and around heavy equipment.” Id. After an initial review of his application, BNSF made a job offer to Shell, contingent in part upon Shell passing a medical examination. Id.
BNSF’s chief medical officer completed the medical evaluation. Id. The physical exam revealed that Shell’s height was five feet and ten inches and his weight was 331, yielding a body-mass index (“BMI”) of 47.5. Id. Based on BNSF’s policy, the chief medical officer determined that Shell was not medically qualified for the position. Id. BNSF’s policy prohibited hiring applicants with a BMI rating of 40 or more for safety-sensitive positions. Id. BNSF’s reasoning was that such a BMI qualified as “class III obesity” putting these individuals “at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease” of which a sudden onset “can result in sudden incapacitation.” Id. Consequently, BNSF believed that these workers were at risk of having a sudden onset and possible incapacitation, which would be dangerous if it occurred while the worker was operating dangerous equipment. Id. Consequently, BNSF rescinded Shell’s job offer. Id. Shell sued BNSF, arguing that it discriminate against him because BNSF regarded him as disabled. Id.
Legal Analysis
In both cases, Massage Envy and BNSF took an adverse employment action based on their perceived possibility that Lowe and Shell—who had no actual disability at that time—may develop a future condition, which could impair their ability to perform an essential function of the job. Lowe and Shell argued that Massage Envy and BNSF, in turn, regarded them as having a disability and, thus, their adverse action violated the ADA. The Seventh Circuit and Eleventh Circuit thus had to decide whether the “regarded-as” prong covers an employer’s reliance on a potential for a future disability.
The Seventh Circuit and Eleventh Circuit first examined the language of the ADA. The courts concluded that the text of the ADA evidenced that the ADA covered only conditions that were current and actual at the time of the alleged discrimination or retaliation. STME, LLC, 938 F.3d at 1315-1317; Shell, 941 F.3d at 336-37. For instance, the ADA’s use of the phrase “being regarded as having a physical or mental impairment” indicates that the ADA was intended to include only current conditions—not future conditions. STME, LLC, 938 F.3d at 1315-1316; Shell, 941 F.3d at 336. As the Seventh Circuit explained, the use of the word “having” means “presently and continuously” and, thus, “does not include something in the past that has ended or something yet to come.” Shell, 941 F.3d at 336.
In addition to the ADA’s text, the courts concluded that the EEOC’s own guidance supported this conclusion. STME, LLC, 938 F.3d at 1317; Shell, 941 F.3d at 337. For instance, the appendix to the ADA’s regulations, which the EEOC promulgated, states that “‘characteristic predisposition to illness or disease’ does not constitute a physical impairment under the ADA.” STME, LLC, 938 F.3d at 1317 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(h)). Therefore, the Seventh and Eleventh Circuits uniformly held that an employer cannot discriminate against an employee or prospective employee based on the employer’s perception of a risk for a future disability.
Conclusion
The Seventh Circuit and the Eleventh Circuit are not alone in this conclusion. The Eighth Circuit, Ninth Circuit, and Tenth Circuit have also concluded that the ADA only covers current disabilities, not future impairments. See Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); E.E.O.C. v. BNSF Ry. Co., 902 F.3d 916 (9th Cir. 2018); and Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016). Consequently, under these cases, the ADA’s “regarded as” prong only covers discrimination based on current disabilities.
However, although the Circuit Courts who have faced this issue agree that future disabilities are not covered, the E.E.O.C. does not appear to be accepting this conclusion. In both STME, LLC and Shell, despite its interpretative guidance to the contrary, the E.E.O.C. argued that the ADA’s regarded-as prong includes potential future conditions. Thus, employers in a circuit that has not addressed this issue should be aware that the E.E.O.C. is likely to pursue enforcement actions to extend the “regarded as” prong to include future disabilities.
