Before getting started on the blog entry of the week, I want to congratulate the Washington Nationals on their World Series victory where for the first time, a road team won every single game. Congratulations. I will be very curious to see whether the Washington nationals go to the White House. As everyone knows, a lot of professional sport teams are handling that different ways.

Turning to the blog entry of the week, on October 29, 2019, the Seventh Circuit decided here Shell v. Burlington Northern Santa Fe Railway Company. I have previously blogged on that case here. So, no need to go into the facts of the case. Accordingly, that means our blog entry is going to be divided into the categories of court’s reasoning and takeaways/thoughts. The reader, of course, is free to look at any and all of the categories.

I

Seventh Circuit’s Reasoning Reversing the District Court’s Denial of Summary Judgment

  1. The alleged disability of obesity only works if there is evidence the obesity is caused by an underlying physiological disorder or condition. Plaintiff presented no such evidence to the District Court. For that matter, plaintiff did not present any evidence that the defendant regarded his obesity as having a physiological origin either.
  2. Plaintiff based his claim upon medical conditions the defendant feared he would develop-sleep apnea, diabetes, and heart disease. It is true that those conditions are physical or mental impairments under the ADA. However, plaintiff did not have those impairments at the time he applied to work for the defendant, and the company had no perception to the contrary. That is, the defendant did not believe that plaintiff had any of the feared impairments at the time it refused his application.
  3. The regarded as prong of the ADA, 42 U.S.C. §12102(1)(C), defines disability as being regarded as having a physical or mental impairment. As such, the very text of the statute encompasses only current impairments and not future ones. Regardless of how the grammar is debated, no one would understand the sentence to mean anything other than currently suffering from the disability. That is, “having,” means presently and continuously. It does not include something in the past that has ended or something yet to come.
  4. 42 U.S.C. §12102(3)(A) also mentions an individual is regarded as having a disability when he or she has been subjected to an action because of an actual or perceived physical or mental impairment. If the impairment does not yet exist, it can’t be actual or perceived.
  5. While you can argue over whether the Dictionary Act compels a different conclusion, such reasoning can’t overcome the plain meaning of the ADA’s statutory text.
  6. Other Circuits agree that fear of disability is not a cognizable claim. Those Circuits include: the 8th Circuit; the 11th Circuit; the 9th Circuit; and the 10th Circuit.
  7. The EEOC’s own interpretive guidance says the definition of impairment does not include physical characteristics or predispositions to illness or disease.
  8. The EEOC’s Compliance Manual genetic profiling example is divorced from the text of the ADA as it is in tension with other EEOC interpretive guidance. So, that doesn’t work with respect to persuading the court to differ from the ADA’s unambiguous text.
  9. A valid point exists about how the ADA combats accumulated myths and fears about disability and disease. However, to the extent a stereotype is involved, it is a stereotype about obesity, and obesity is only protected by the ADA if there is an underlying physiological cause. Without that underlying cause, obesity is not a disability the ADA protects.
  10. While Congress does say that the definition of disability must be construed broadly in favor of the individual, that doesn’t give the court license to go beyond the terms of the statute. To do otherwise, would mean encroaching into the legislative branch’s responsibilities.

II

Thoughts/Takeaways

  1. Reviewing my blog entry on the District Court decision reveals some interesting things. First, the District Court said that a question of fact existed with respect to whether the defendant actually believed the plaintiff was suffering from the conditions feared the plaintiff would develop. Second, the Seventh Circuit doesn’t address the District Court’s concern about the defendant being held to a lesser standard simply because it is engaging in adverse employment action before an impairment arises when there was no doubt that the defendant was acting based upon its belief that the plaintiff posed a present safety risk as a result of potential disabilities. Similarly, the District Court said that it was facially illogical and antithetical to the protections afforded by the ADA to argue that the defendant could not discriminate against individuals who actually have a disability but could discriminate against those individuals likely to have a disability but have yet to develop them.
  2. Absolutely true that the vast majority of courts are saying that with respect to obesity there has to be an underlying impairment. I wonder if plaintiff could not borrow from the definition of major life activity in the ADA as amended per 42 U.S.C. §12102(2)(B), and argue that the way the body operates with respect to a person who is obese constitutes a physical impairment vis a vis normal cell growth, brain, neurological, etc.
  3. Obesity is the only physical or mental impairment requiring an additional underlying physiological condition. That is, just about all of the other physical or mental impairments by their very definition have such a condition automatically contained within the diagnosis. So, even under the Seventh Circuit’s decision, would the same conclusion follow if a different disability was involved. For example, would the Seventh Circuit reach the same conclusion as the 11th Circuit with respect to a fear of a contagious disease? What if that individual the employer feared getting a contagious disease already had his or her immune system compromised in some way to begin with?
  4. I do think the Shell District Court’s reasoning is still worthwhile for plaintiff attorneys to use. On the plaintiff’s side, I would definitely allege an underlying physical or mental impairment whenever bringing a fear of future disability claim. I also think the myths, fears, and stereotypes angle is well worth pursuing.
  5. No dissenting opinion in this case. So, not sure if a rehearing en banc will be sought. Regardless, I doubt plaintiff will prevail in the Seventh Circuit even if a rehearing en banc is granted considering the Seventh Circuit’s track record of late with respect to persons with disabilities.
  6. Impossible to say how the United States Supreme Court would deal with a case like this. We currently do not have a Circuit Court split that I am aware of. So, it is entirely possible that United States Supreme Court will wait until such a split develops.
  7. One of the labor and employment law blogs I read regularly is the OhioEmployers Law Blog authored by Jon Hyman. His blog is a very interesting perspective. He is a management side attorney. However, he isn’t afraid of talking about how employers should do the right thing regardless of what the law allows. Sure, there is a moral side to that. However, there is also a monetary side to that as well. With respect to fear of future disability cases, the law is really unclear. Does the employer really want to risk spending $250,000 to prove a point when they can obtain the use of a valuable employee in the meantime? There isn’t a day that goes by where I read articles, in such places as the Wall Street Journal, talking about how employers of all kinds simply can’t find enough employees anymore. Even if the employer takes a risk in hiring such an individual, the ADA does allow for that employer to take certain actions if they become aware of issues. For example, as we discussed here for example, should the employer become aware of issues that are job-related and consistent with business necessity, they can always insist on a medical exam.
  8. Fear of future disability cases ultimately come down to company preference. That is, do they want to go to just where the law allows and make a defense litigation firm happy. Or, do they want to engage in preventive law by going further than the law allows initially, and then using what the law does allow them to do to deal with issues as they come up. I am pretty sure I know what Jon would say, but he can correct me if I’m wrong.

This week the United States Supreme Court will be considering a petition for cert. in the case we discussed here, which deals with the same defendant and the issue of who pays for the medical exam. I will certainly be following what happens with that case. Oftentimes, petitions for cert. get relisted. So, we may not know for a while what the United States Supreme Court elects to do in that case.

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