In a much anticipated ruling, the 8th Circuit Court of Appeals (encompassing Arkansas, Iowa, Missouri, Nebraska, North Dakota, and South Dakota) recently issued an opinion addressing whether obesity constitutes a disability under the Americans with Disabilities Act of 1990 ("ADA"). The case, Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016), arises from BNSF Railway Company's ("BNSF") decision to revoke a conditional offer of employment after an applicant, Melvin Morriss ("Morriss"), failed to meet BNSF's job-specific qualification standards. Id. at 1106.
Morriss applied for a position as a machinist and received a conditional offer of employment from BNSF. Id. The machinist position was considered a safety-sensitive position; as such, Morriss was required to pass a medical review. Id. As part of this process, Morriss reported that he was 5'10" tall, weighed 270 pounds, was previously diagnosed as "pre-diabetic" but not currently diabetic, considered his overall health "good," denied suffering from any medical condition or impairment, and disclosed no limitations on his ability to perform daily activities. Id. In addition, during litigation, Morriss affirmatively stated that he did not believe that he had a disability and that there was no underlying condition that contributed to his obesity. Id. The information provided by Morriss was corroborated by his treating physician. Id. at 1107.
BNSF's machinist hiring policy was to not hire an applicant if the applicant's body mass index ("BMI") equaled or exceeded 40. Id. at 1106. BNSF doctors conducted two separate physical examinations of Morriss; these examinations reveled that Morris had a BMI of 40.9 and another of 40.4. Id. For this reason, BNSF revoked its conditional offer of employment. Id.
Morriss filed a lawsuit in the United States District Court for the District of Nebraska (the "District Court") asserting that BNSF discriminated against him by revoking the offer of employment in violation of the ADA for the reasons that his obesity was a disability and that BNSF regarded his obesity as an actual disability. Id. The District Court rejected both of these arguments and granted BNSF summary judgment on the grounds that obesity is not a disability under the ADA and that BNSF did not treat Morriss as if he had a disability, but only his predisposition to develop an illness or disease in the future. Id. at 1106-07. From this decision, Morriss appealed to the 8th Circuit to address the question of whether obesity is a disability under the ADA. Id. at 1107.
Generally, the ADA prohibits an employer from discriminating against a qualified individual based on a disability. See 42 U.S.C. § 12112(a). In order to successfully establish a claim under the ADA, an individual must prove that they are a qualified individual who suffered discrimination based on a disability. Id. The central issue in Morriss was the meaning of the term "disability." Id. The ADA defines disability, in part, as a physical impairment that substantially limits one or more major life activities. See 42 U.S.C. § 12102(1)(A-C). Under this definition, an individual is deemed to have such an impairment if it is shown that the individual was discriminated against "because of an actual or perceived physical impairment whether or not the impairment limits or is perceived to limit a major life activity." 817 F.3d at 1108. Specifically, Morriss had to show that his obesity was an actual or perceived impairment. Id. "Physical Impairment" is defined as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine." Id. (citing 29 C.F.R. § 1630.2(h)(1). Utilizing this definition of impairment, the 8th Circuit concluded that obesity is not a physical impairment unless it is a physiological disorder or condition and it affects a major body system. 817 F.3d at 1108. The 8th Circuit went on to state that an individual's weight "is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found." Id. As noted above, Morriss denied any underlying condition that contributed to his weight or that his weight in any way impacted his ability to engage in daily activities. In the absence of any evidence that his obesity was the result of an underlying physiological disorder or condition, Morriss did not establish the existence of a physical impairment under the ADA. Id. at 1113.
Turning to Morriss's second argument, the ADA prohibits an employer from discriminating against a person on the basis of an existing physical impairment. See 42 U.S.C. § 12102(1)(A). The ADA does not prohibit an employer from taking action based on a perceived unacceptable risk of a future physical impairment. Id. at 1113. In order to succeed on his second argument, Morriss was obligated to demonstrate that BNSF perceived his obesity as a condition that amounted to a physical impairment. Id. Morriss's BMI exceeded BNSF's internal policy limits for performing a safety-sensitive position; BNSF did not revoke the conditional offer of employment because of an existing condition, but due to the potential for Morriss to develop a health risk in the future. Id. Accordingly, the 8th Circuit rejected this argument. Id.
The outcome in this case is fact-specific and employers should be mindful that the Morriss decision may not apply across the board when considering whether to hire an individual. Within the transportation industry, driver health and the impact of driver health on the ability to hire or retain qualified drivers, continues to dominate the landscape as employers cope with the ongoing driver shortage. The Federal Motor Carrier Administration is currently accepting comments regarding the effects a potential sleep apnea rule would have on truck drivers and the trucking industry as a whole. Driver health and, in particular, the debate surrounding an individual's BMI and the propensity to develop obstructive sleep apnea is far from over. That BNSF had clear hiring criteria and a job description undoubtedly went a long way with this court. With any hiring decision, employers should bear in mind the requirements of the ADA and any and all applicable federal, state, and local laws.
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