Today’s blog entry deals with the question of whether taking adverse action against a person who does not currently not have a disability but where the employer fears will develop a disability in the future is actionable under the ADA. We will discuss two cases going opposite ways. They are: EEOC v. STME, LLC d/b/a/ Massage Envy-South Tampa from the Middle District of Florida decided February 15, 2018, and Shell v. Burlington Northern Santa Fe Railway Company from the Northern District of Illinois Decided March 5, 2018. As usual, the blog entry is divided into categories and they are: Massage Envy facts; Massage Envy reasoning; Shell facts; Shell’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Massage Envy Facts:

In September 2014, plaintiff requested time off to visit her sister in Ghana, West Africa. Massage Envy’s business manager approved the request. On October 22, 2014, three days prior to her trip, plaintiff was terminated out of concern that she would be infected with Ebola if she traveled to Ghana and would bring it home to infect Massage Envy’s employees and clients upon her return. Plaintiff subsequently did take her trip to Ghana. When she returned, she filed a claim with the EEOC. The EEOC found reasonable cause to believe that plaintiff was regarded as disabled and engaged in informal conciliation effort to reach a resolution. When the resolution effort failed, EEOC filed suit.

II

Massage Envy’s Reasoning in Granting the Motion to Dismiss:

  1. Under 42 U.S.C. §12102(3)(A) an individual is regarded as having a disability when she is subject to a prohibited action 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.
  2. In an interpretive guidance, the EEOC said impairment does not include characteristics or predisposition to illness or disease.
  3. The owner did not perceive plaintiff as presently having Ebola. Instead, he perceived her as having the potential to become infected with Ebola in the future. As such, the owner did not believe the plaintiff was presently impaired.
  4. The court declined to expand the regarded as having a disability definition in the ADA to cover cases where the employer perceives an employee to be presently healthy with only the potential to become a person with a disability in the future due to voluntary conduct.
  5. Massage Envy correctly argues that the EEOC failed to state an association discrimination claim because the defendant had not yet had any association with persons in Ghana, or with identified people known by the owner to be a person with a disability as required by the ADA. At the time of her termination, the plaintiff had not yet had any association with persons in Ghana. Further, there is no evidence that the owner knew any individual in Ghana with Ebola.
  6. The plain language of the ADA makes clear that the plaintiff must be known to have [present tense] (brackets appear in the opinion itself), a relationship or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination.
  7. Citing to an 11th Circuit case, the court noted that one of the prima facie elements is that the employer knew at that time that the plaintiff had a relative or associate with a disability.
  8. The plain language of the ADA and binding case law says that an employer must know of a presently existing or past association with a person with a disability at the time of the adverse action in order to fall under the ADA’s association discrimination provision. The EEOC did not give the court nor was the court aware of any 11th Circuit case where an association discrimination claim was sustained based upon the employer’s knowledge of the potential future association with a person with a disability or persons with disabilities.
  9. No question in this case that the owner was without knowledge of a current association between the plaintiff and individuals in Ghana at the time of the plaintiff’s termination because no such association had occurred yet.
  10. Even if it is assumed that a plaintiff could bring an association discrimination claim for potential future association with a person with a disability, the ADA requires that such an individual have a known disability. In fact, the EEOC in its interpretive guidance says the ADA prohibits an employer from discharging the employee because the employee does volunteer work with people who have AIDS, and the employer fears that the employee may contract the disease.
  11. The ADA does not establish a cause of action for discrimination against an individual associating with people who are merely regarded as having a disability.
  12. The interference claim fails because it could not be reasonably assumed from the charge that such a claim existed.

III

Shell Facts:

Shell was employed by Rail Terminal Services, which was responsible for intermodal operations at Burlington Northern Santa Fe’s Corwith railyard. In July 2010, Burlington Northern Santa Fe announced that it would be taking over the operations at that yard and invited employees to apply for positions with Burlington Northern Santa Fe. Burlington Northern Santa Fe required that intermodal equipment operators act as groundsmen, hostlers, and crane operators. Groundsmen are responsible for climbing on railcars to insert and remove container interlocker devices; hostlers are responsible for operating trucks to move trailers within the yard; and crane operators are responsible for operating overhead cranes that load and unload intermodal containers from trains and truck chassis. While the plaintiff had previously worked for Rail Terminal Services, that position did not require him to fulfill all three functions. Even so, the plaintiff had many years of experience working in a similar capacity and also had experience in operating a broad array of relevant equipment.

Following an interview process, Burlington Northern Santa Fe made the plaintiff a conditional offer of employment with a scheduled start date of January 1, 2011 conditional on his completion of a background check, drug test, physical examination, and medical evaluation. As part of the medical evaluation process, Burlington Northern Santa Fe considered the body mass index of applicants for safety sensitive positions, which included plaintiff’s position. Burlington Northern Santa Fe believes that there are significant risks associated with having individuals of a body mass index of 40 or greater working in safety sensitive roles. In particular, such individuals are at a substantially higher risk of developing a number of medical conditions including sleep apnea, diabetes, and heart disease, all of which can manifest as a sudden incapacitation or serious impairment of alertness or cognitive ability. Accordingly, Burlington Northern Santa Fe does not hire applicants for safety sensitive position if their body mass index is over 40.

Physical exams established that the plaintiff was 5’10” tall and weighed 331 pound with a BMI of 47.5. Accordingly, Burlington Northern Santa Fe withdrew its offer of employment, but did inform the plaintiff that he might be eligible for reconsideration if he lost 10% of his weight, maintained that weight loss for six months, and provided any additional test results that were requested. That decision was based solely on plaintiff’s BMI and not on any existing physiological disorder or functional limitation. For that matter, no further examination was requested to determine if the plaintiff did in fact suffer from sleep apnea, diabetes, or heart disease and no evidence suggested that the plaintiff suffered from these conditions presently. Finally, no evidence suggested that the plaintiff’s weight resulted from the underlying medical condition.

IV

Shell’s Reasoning for Denying Defendant’s Motion for Summary Judgment

  1. In order to prevail on an ADA discrimination claim, plaintiff has to show that: 1) he is a person with a disability; 2) he is otherwise qualified to perform the essential functions of the job; and 3) the employer took an adverse action against him on the basis of his disability.
  2. Under 42 U.S.C. §12112(b)(6), one of the acts constituting discrimination against a qualified individual on the basis of disability is using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. Further, the use of such qualification standards, tests, or other criteria only flies if it is shown to be job-related for the position in question and consistent with business necessity.
  3. Under 42 U.S.C. §12102(3), a person is regarded as having a disability if he can establish an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  4. The court agrees with the weight of authority that obesity is not a disability under the ADA unless it results from an underlying physiological condition. Further, plaintiff also failed to establish that Burlington Northern Santa Fe perceived his obesity is a disability.
  5. The court cited to a case from the Southern District of Illinois where that court found in the case of a person who was not hired because of the employer’s fear that he would develop carpal tunnel syndrome in the future, that the plaintiff there was regarded as having a disability and that no reasonable jury could find otherwise.
  6. Burlington Northern Santa Fe readily admitted that it refused to hire the plaintiff based on its fear that he would develop sleep apnea, diabetes, or heart disease, and as a result, he might become suddenly and unexpectedly incapacitated while performing his duties.
  7. A question of fact exists as to whether Burlington Northern Santa Fe is treating the plaintiff as if he does suffer from sleep apnea, diabetes, or heart disease. Burlington Northern Santa Fe apparently views the plaintiff as a ticking time bomb who at any time may be suddenly and unexpectedly incapacitated by one or more of the potential medical conditions that he might develop.
  8. Burlington Northern Santa Fe’s refusal to consider hiring the plaintiff and monitoring him for the conditions it fears will develop suggests that the defendant believes the plaintiff suffers from these conditions or at the very least suffers from the potential effects of those conditions at the present time.
  9. The court sees no reason why Burlington Northern Santa Fe should be held to a lesser standard simply because it is engaging in adverse employment actions before an impairment arises, when there can be no doubt that Burlington Northern Santa Fe is acting based on its belief that plaintiff poses a present safety risk as a result of potential disabilities. Burlington Northern Santa Fe is acting upon the anticipated worst-case scenario derived from precisely the sort of myths, fears, or stereotypes that the ADA is meant to guard against.
  10. The court perceived a clear distinction between being predisposed to illness generally v. being predisposed to developing a disability subject to the ADA.
  11. In its guidance, the EEOC specifically recognizes that obesity can independently give rise to regarded as disability discrimination claims.
  12. In a footnote, the court said that Burlington Northern Santa Fe essentially argues that although it cannot discriminate against individuals who actually have a disability, it can discriminate against those who are likely to have disabilities but have yet to develop them. That argument is facially illogical and antithetical to the protections afforded by the ADA and other antidiscrimination statutes.
  13. With respect to business necessity, the employer’s burden is quite high and is not to be confused with mere expediency.
  14. From the record, it is impossible to determine whether the plaintiff’s health posed so great a safety risk that his exclusion from safety-sensitive positions constituted business necessity. In a footnote, the court noted that while it is true that the plaintiff offered no testimony from a medical expert to controvert Burlington Northern Santa Fe’s assessment of the risks of plaintiff’s obesity, Burlington Northern Santa Fe’s own evidence was based solely on indefinite and vague comparative statements of risks.
  15. Burlington Northern Santa Fe’s willingness to employ the plaintiff providing he lost some weight undermines its claim that the plaintiff was inherently too dangerous to be in a safety sensitive position. Accordingly, a dispute of material fact existed as to whether it was truly necessary to exclude the plaintiff and other individuals like him from safety sensitive positions.

V

Takeaways:

  1. I don’t see how the two cases can be reconciled. I would certainly look for the EEOC to appeal and use Shell in its appeal. The 11th Circuit as of late has often been favorable to persons with disabilities.
  2. Interesting that the same interpretive guidance gets used in both cases to reach opposite conclusions.
  3. As a preventive law matter, assume that Shell is the law and don’t take adverse action against an employee over the fear that the employee will develop a disability in the future.
  4. It isn’t a bad idea to have a lawyer draw up the EEOC charge where possible. Also, whoever draws up the charge should be sure to put in it any and all claims that reasonably stem from the facts in that charge.
  5. For more explanation as to what constitutes business necessity, check out this blog entry.
  6. Burlington Northern Santa Fe made a big mistake by not doing an individual analysis as to whether the plaintiff either had a disability or whether the plaintiff constituted a direct threat per this blog entry.
  7. While Shell goes along with the majority trending that obesity must be based upon an underlying condition to be protected under the ADA, it is significant that this court says that obesity can independently give rise to regarded as disability discrimination claims.
  8. Massage Envy specifically talks about voluntary conduct of plaintiff in the decision, and will be interesting to see how that plays out, if at all.
  9. As a preventive matter, individual analysis is critical.

2 Responses to Fear of Future Disability Actionable Under ADA?

I’m not sure if the distinction can be supported in the law, but I would argue that Message Envy can be justified by the fact that the employer was afraid not of a disability, but of an illness. Not every illness is a disability, so their fear was not necessarily disability related. That raises other interesting issues; for example, can an employee be fired (or not hired) because he or she refuses to get a flu shot, or refuses to have his or her children vaccinated against common infectious diseases. As for Burlington Northern, all the conditions the employer was afraid of are usually disabilities, so there is a closer tie to the conduct forbidden by the ADA.

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