Eighth Circuit: It’s OK to Discriminate on the Basis of Things That Haven’t Happened Yet

By: Amanda Cannon

Generally, it is not permissible for employers to discriminate against job candidates based on presumptions about their future ability to work.[1]

The Eighth Circuit recently found an exception in Morriss v. BNSF Ry. Co, holding that is not a violation of the Americans with Disabilities Act to discriminate against an obese job candidate because of the high risk that he will develop health problems as a result of his weight.[2]

Melvin Morriss applied for a machinist position with BNSF and was given a conditional offer for the job.[3] Since the position was safety sensitive, Mr. Morriss needed a satisfactory physical exam before starting the job.[4] On his medical questionnaire, Mr. Morriss reported that he was 5’10’’ tall and 270 pounds.[5] BNSF conducted two physical exams, at one Morriss weighed 281, with a BMI of 40.4 and at the other 285 pounds, with a BMI of 40.9. BNSF’s employment standards disqualify candidates with a BMI of 40 or higher for a “safety sensitive” positions, so the conditional job offer for Mr. Morriss was revoked.[6]

Mr. Morriss sued BNSF for discrimination under the Americans with Disabilities Act. The ADA makes it unlawful for a covered employer to discriminate against any “qualified individual on the basis of disability.”[7] The definition of “disability” under the ADA is “(A) a physical … impairment that substantially limits one or more major life activities … (B) a record of such an impairment; or (C) being regarded as having such an impairment.”[8]

In order for obesity to qualify as a physical impairment under the ADA, it must result from an “underlying physiological disorder or condition.”[9] Mr. Morriss’ obesity was not the result of a physiological disorder or condition and did not impair or limit any of his major life activities.[10]

BNSF did not claim that Morriss’ obesity was an existing physical impairment or that he would be unable to perform the tasks of the job.[11] Morriss was denied employment because BNSF felt that because of his obesity, he is likely to develop health risks in the future.[12] Morriss argued, and the court rejected, that BNSF regarded Morriss of currently being impaired.[13]

The court reasoned that the ADA prohibits an employer from discriminating against an individual on the basis of a presently existing “physical impairment” “but does not prohibit an employer from acting on some other basis, i.e., on its assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment.”[14]

[1] See Pregnancy Discrimination Act of 1978 (prohibiting workplace discrimination against women who are pregnant or may become pregnant); Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information and family history which may be used to predict future risk for disease).

[2] Morriss v. BNSF Ry. Co., No. 14-3858, 2016 WL 1319407, at *8 (8th Cir. Apr. 5, 2016)

[3] Id. at 1.

[4] Id.

[5] Id.

[6] Id.

[7] 42 U.S.C. § 12112(a).

[8] Morriss v. BNSF Ry. Co., No. 14-3858, 2016 WL 1319407, at *2 (8th Cir. Apr. 5, 2016).

[9] Id. at 7.

[10] Id.

[11] Id. at 8.

[12] Id. at 8.

[13] Id.

[14] Id.

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