United States: The Future Is Now: Employer Use Of Present-Day Medical Information To Predict Future Disabilities Does Not Violate The ADA

The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of "precogs" to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit's decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of "likely to develop a future disability," without violating the ADA, because the individual does not currently have the status of "disabled."

And the Seventh Circuit arrived at that conclusion through an analysis primarily centered around definitions and rules of grammar. Here are the key aspects of the court's analysis.

The Corwith Rail Yard is a historic freight terminal located in the southwest side of Chicago. It is an intermodal hub, where some 1,900 freight containers per day are loaded on and off trains and boats. Ronald Shell worked at Corwith for over 33 years, successfully performing a variety of safety-sensitive positions such as groundsman and crane operator. In 2010, Burlington Northern Sante Fe Railway Company (BNSF) took control of the operations at Corwith. Many workers employed by the previous operating company, including Shell, lost their positions and were invited to reapply with BNSF. Shell did so, applying for the position of intermodal equipment operator. This position would require Shell to climb on railcars, drive trucks, and operate cranes. All applicants for this position, which BNSF deemed safety-sensitive, were required to undergo a medical evaluation. BNSF does not hire applicants for safety-sensitive positions if their body mass index (BMI) is greater than 40, because BNSF believes a BMI greater than 40 is a predictor of future medical conditions resulting in sudden incapacitation. Shell's BMI was 47.5. BNSF rejected Shell's application to continue doing the work he had been doing for over 30 years, viewing him as medically unqualified for the job based on a perceived risk of future disabilities arising from his obesity.

Shell sued BNSF under the Americans with Disabilities Act (ADA), alleging that the company discriminated against him due to a perceived disability. BNSF argued that Shell did not have a disability within the meaning of the ADA because obesity is not a "qualifying impairment." Further, BNSF argued that even if its refusal to hire Shell was deemed discrimination, its BMI policy qualifies for a valid ADA business-necessity defense. The question before the Seventh Circuit was whether the ADA's "regarded as" prong covers a situation where an employer views an applicant as currently not disabled, but at risk for developing a qualifying impairment in the future. The court held it does not.

In its opinion, the Seventh Circuit explained that its decision in Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), foreclosed Shell's argument that obesity alone qualifies as a physical impairment and thus a disability within the meaning of the ADA. In Richardson, the court held that obesity alone is not a physical impairment, unless it is caused by an underlying physiological disorder or condition. In Shell, the court noted there was no evidence of a physiological disorder or condition causing the obesity. Instead, Shell based his claim on hypothetical future conditions that BNSF feared he would develop, such as diabetes, heart disease, and sleep apnea, which all would certainly qualify as impairments under the statute. The court found this argument troubling, however, given that Shell did not have those impairments at the time he applied to work at BNSF, nor did the company hold a perception of him having such impairments.

The Seventh Circuit reasoned that the answer to the question presented to them could be found in the plain language of the ADA. The ADA's "regarded as" prong defines disability as "being regarded as having [a physical or mental] impairment." The court explained that the text plainly includes only current impairments and not future ones. The debate in Shell was a mere clash of grammatical interpretations – whether "having" is a gerund or a past participle. The court reasoned that "having" means "presently and continuously" and does not include something in the past that has ended or has yet to come. To settle the technical debate, the court held that "having" is a present participle, used to form a progressive tense. The Seventh Circuit simply stated that if the impairment does not yet exist, it can be neither actual nor perceived.

The EEOC, on the other hand, argued that the Dictionary Act commands that "unless the context indicates otherwise…words used in the present tense include the future as well as the present." The Seventh Circuit was not persuaded by this argument, as it said this instruction cannot overcome the plain meaning of the statutory text. The "context [that] indicates otherwise" comes from the ordinary language Congress employed in the ADA, the court opined. The Seventh Circuit, and all other circuits that have confronted the issue, would agree that with only proof that BNSF refused to hire Shell because of a fear that he would one day develop an impairment, he has not established that the company regarded him as having a disability or that he is otherwise disabled. Absent such a finding, the Seventh Circuit determined that BNSF was entitled to summary judgment.

With this opinion, the Seventh Circuit has ushered in a movement for employers to act like the "precogs" in Minority Report. Employers are free to refuse to hire an applicant, or to terminate the employment of a current worker, based on foreknowledge of potential future disabilities, as long as the disability does not exist at the time of the decision. Just as the fictional "PreCrime" police department stopped future murderers before they acted, real-life human resource departments can now make "PreDisability" determinations, putting a stop to future disability claims and costs before they happen. Viewers of Minority Report might have thought its vision of 2054 was fanciful. But the Shell opinion demonstrates that the modern workplace is rapidly approaching that science-fiction vision.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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