Employer faces claim by employee ‘regarded as’ disabled

The Americans with Disabilities Act (ADA) provides broad employment protections for people with disabilities. For example, under the ADA, employers cannot take a “negative employment action,” e.g., demote, underpay, refuse to promote or refuse to hire a worker, based on his or her disability as long as the worker is capable of doing the job with “reasonable accommodations.”

But did you know the ADA will also hold employers accountable if they discriminate against a worker who they “regard as” disabled, even if the worker doesn’t actually have a disability?

This happened recently in Illinois. Ronald Shell applied for a job in a Burlington Northern Santa Fe Railway railyard. The job was a safety-sensitive position that involved working with heavy equipment.

BNSF gave Shell an offer pending a medical exam. The company then rescinded the offer because Shell, who was 5’10” and weighed 331 pounds, had a Body Mass Index of 47.5. BNSF’s reasoning was apparently that the health and safety risks associated with that level of obesity, such as sleep apnea, diabetes or heart disease, made Snell medically unqualified for such a safety-sensitive position. The company was particularly concerned that he might suddenly develop one of the above-mentioned underlying conditions and become unexpectedly incapacitated while on duty. BNSF told Snell it would reconsider if he lost 10 percent of his body weight and kept it off for six months.

Shell sued the company in federal court, accusing BNSF of disability discrimination under the ADA.

A federal district court judge ruled that he couldn’t bring a handicap bias claim because obesity is only considered a disability when it results from an underlying physical disorder, which wasn’t the case here. But the judge also decided that Snell could sue for being “regarded as” disabled. That’s because the company was arguably treating him as if he actually suffered from one of the underlying conditions it feared, as demonstrated by its refusal to hire him and then monitor him for such conditions.  Since if Snell actually suffered from one of these conditions he could make out a straight handicap-bias claim under the ADA, being treated as though he had them supported a “regarded as” claim, the court decided.