Employer's Fear that Job Applicant would Develop Future Impairment Not "Regarded-As" Disability Discrimination under the ADA

On October 29, 2019, the 7th Circuit ruled that the "regarded-as" provision of the Americans with Disabilities Act ("ADA") does not encompass conduct motivated by the likelihood that an employee or job applicant will develop a future disability within the scope of the ADA.  Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030 (7th Cir. 10/29/2019).  In this case, the defendant refused to hire the plaintiff solely because it believed that his obesity presented an unacceptably high risk that he would develop certain medical conditions in the future that would suddenly incapacitate him on the job.  He filed a lawsuit under the ADA, alleging that the defendant discriminated against him based on disability.  The defendant moved for summary judgment on the ground that the ADA's definition of "disability" is not met where an employer regards a job applicant as not presently having a disability, but at high risk of developing one.  The district court denied the motion, ruling that the ADA does reach discrimination based on future impairment.  The 7th Circuit reversed, reaching a contrary conclusion of law.

At issue on appeal was 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 ADA prohibits covered employers from discriminating against job applicants on the basis of disability.  To prove a violation of this provision, a plaintiff must establish that:  (1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (3) the adverse job action was caused by her disability.  The ADA defines "disability" 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."  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." 

The 7th Circuit previously held in Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019) that obesity alone is not a physical impairment under the ADA, unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition.  Consequently, the plaintiff  in Shell v. Burlington could not argue that his obesity qualifies as a physical impairment and thus a "disability" within the meaning of the ADA.

Instead, he could only base his disability discrimination claim on the medical conditions that the company feared would develop--which undisputedly qualify as impairments under the ADA.  However, he did not have those impairments at the time he applied for employment with the company, which held no perception to the contrary.  To satisfy the "regarded-as" prong of the ADA, the plaintiff was required to show that the company perceived him as having an impairment.  However, the evidence was clear that the company did not believe that he had any of the feared impairments when it refused to hire him.  The 7th Circuit held that the ADA's "regarded-as" prong does not cover a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future.  The 7th Circuit based its decision on the text of the ADA, which it concluded plainly encompasses only current impairments, not future ones.  The 7th Circuit also relied on analogous decisions from other circuits.  

With only proof that the company refused to hire him because of a fear that he would one day develop an impairment, the plaintiff could not establish that the company regarded him as having a disability or that he is otherwise disabled.  Therefore, he could not prevail on his claim of disability discrimination under the ADA, and the defendant was entitled to summary judgment.