Disability Act does not protect overweight railway worker in BNSF case

BNSF Railway Co. regarded an applicant for an equipment operator job as a “ticking time bomb” when it denied him a job over concerns his obesity would cause an accident, an Illinois federal judge said Monday in an order denying the company’s bid for a quick win in the applicant's discrimination suit.Show more

Though worker Ronald Shell was not disabled under most courts' interpretation of the Americans with Disabilities Act, which bars discrimination against workers with disabilities, BNSF may have violated the law by treating him as if he was, U.S. District Judge Sharon Johnson Coleman said in her order denying BNSF summary judgment.

“BNSF [was] acting based upon an anticipated worst-case scenario derived from precisely the sort of myth, fear or stereotype which the ADA is meant to guard against,” Judge Coleman said.

Shell, who worked for a company called Rail Terminal Services at a BNSF rail yard, applied for a job with BNSF in July 2010 after the company said it was bringing the rail yard’s operations in-house. Shell applied to work as an intermodal equipment operator, a job category that BNSF classified as safety-sensitive because it involves using heavy equipment, according to Judge Coleman’s order. Shell “had many years of experience working in a similar capacity,” the judge noted.

BNSF offered Shell a job contingent on his undergoing a physical. The exam showed Shell, who was 5 feet 10 inches tall and weighed 335 pounds, had a body mass index of 47.5. BNSF denied Shell the job per a policy of not letting workers with BMIs over 40 perform safety-sensitive jobs due to concerns they may develop conditions including sleep apnea, diabetes and heart disease, “which can manifest as a sudden incapacitation,” according to the order. Shell then sued, alleging the company violated the ADA.

BNSF argued in a motion for summary judgment that Shell could not sue under the ADA because obesity is not a disability unless it’s caused by an underlying physiological issue, as every circuit court to consider whether obesity is a disability has found.

But BNSF may still have violated the ADA by regarding Shell as disabled even if he did not have an ADA-protected condition, Judge Coleman said, buying Shell’s argument that BNSF withdrew the job offer because it believed his obesity may signal conditions such as sleep apnea or heart disease, which are protected under the ADA.

Judge Coleman cited to the Northern District of Illinois’ November decision in Equal Employment Opportunity Commission v. Amsted Rail Co. Inc., which granted summary judgment to the agency on a claim the company denied a job to an applicant over fears he would develop carpal tunnel, even though he did not have the ailment when he applied.

“There can be no doubt that, at a minimum, there exists a dispute of material fact as to whether BNSF is treating Shell as if he does suffer from [impairments],” Judge Coleman said. “Shell, to BNSF’s apparent view, is a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated.”

Judge Coleman also found BNSF undermined its purported concerns over hiring workers with high BMIs by saying it would hire Shell if he lost 10 percent of his weight, even though he would still have a BMI of more than 40.