BNSF Railway Denied Summary Judgment in Obesity Bias Case

BNSF Railway, one of the largest freight railroad networks in North America, is facing a claim that it violated the Americans with Disabilities Act when it refused to hire an obese applicant. BNSF’s motion for a summary judgment—a request for the court to rule that the other party has no case—was denied by Judge Sharon Johnson Coleman in the Northern District of Illinois.

The plaintiff was employed by a third-party company that handled intermodal operations at one of BNSF’s railyards. When BNSF announced that the operations would be moved in-house, the plaintiff applied to a position with the company. The position the plaintiff applied for was classified by BNSF as “safety-sensitive” because it involves working around and operating heavy equipment. While the plaintiff did not have experience doing the specific functions required by the position, he had several years of experience working in similar positions.

BNSF conditionally offered the plaintiff the position contingent upon the completion of a pre-employment physical. Upon completion of the physical, BNSF became aware that the plaintiff’s Body Mass Index, or BMI, was 47.5. Consequently, BNSF withdrew the conditional employment offer citing company policy regarding “safety-sensitive” positions and BMI.

“BNSF believes that there are significant risks associated with having individuals with a BMI of 40 or greater … working in safety-sensitive roles … [because those 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 a serious impairment of alertness or cognitive ability … [a]ccordingly, BNSF does not hire applicants for safety-sensitive positions if their BMI is over 40,” the Judge Coleman wrote.

No evidence was presented that suggested the plaintiff suffered from any of the conditions BNSF cites as reasons it rejects obese applicants for “safety-sensitive” positions.

The ADA defines disability as:

  • A physical or mental impairment that substantially limits one or more of the major life activities
  • A record of such an impairment
  • Being regarded as having such an impairment

An individual is regarded as having an impairment under the ADA “if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity … .”

In its motion for summary judgment, BNSF argued that the plaintiff did not have a claim under the ADA because obesity is not a disability unless caused by underlying physiological issues—something every circuit that has considered whether obesity is covered by the ADA has found.

Ultimately, the judge denied the motion saying, “There can be no doubt that, at a minimum, there exists a dispute of material fact as to whether BNSF is treating [the plaintiff] as if he does suffer from [impairments].”

This denial comes after BNSF successfully obtained a dismissal of another lawsuit that was subsequently affirmed by a three-judge panel of the 8th Circuit in 2016. Morriss v. BNSF Ry. Co. presented very similar facts, and because the plaintiff’s obesity was not caused by another physiological issue, BNSF was found within its rights to deny employment to the otherwise qualified applicant. In this case, as well as the current litigation, the Equal Employment Opportunity Commission filed an amicus brief supporting the plaintiff. The Supreme Court denied the plaintiff’s petition for a writ of certiorari to review the 8th Circuit’s decision.

Marjory Robertson, Associate Vice President and Senior Counsel at Sun Life Financial who frequently writes on ADA issues, gives this advice to employers:

“Employers should bear in mind … [that] the EEOC has taken the position that morbid obesity is an ADA disability. … Moreover, some state laws may protect obesity as a disabling condition. For example, clinically-diagnosed obesity is considered to be a disability under the New York State Human Rights Law[,] and courts in New Jersey have concluded that actual or perceived morbid obesity is a protected disability under the New Jersey Law against Discrimination.”

With the adult obesity rate at 36.5% and the Equal Employment Opportunity Commission’s support of obese plantiffs’ efforts to be afforded protection and accommodation under the ADA, this is an issue to watch for its possible effects on the workforce, employers, and disability benefits.