The U. S. District Court for the District of Nebraska granted the railroad summary judgment finding that the railroad did not discriminate against a job applicant in violation of the Americans with Disabilities Act (the Act), 42 U.S.C. § 12102 et seq. The applicant applied and was given a conditional job offer for the safety sensitive position of Machinist – Diesel Engines. During the medical qualification process, the applicant revealed that he stood “5 feet 10 inches tall.” “He weighed 281 pounds and had a body mass index (BMI) of 40.9.” The applicant’s conditional job offer was withdrawn solely “…in accordance with company policy that [plaintiff] was ‘Not currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity (Body Mass Index of 40 or greater).’” (emphasis in original). The applicant claimed he was disabled or regarded as disabled by the company due to his obesity and BMI.
In the opinion, the Court first set forth the elements of the plaintiff’s disability discrimination claims. To establish discrimination under the Act, an applicant must show that he is disabled within the meaning of the Act and suffered an adverse employment action. The definition of disability is a physical or mental impairment that substantially limits one or more major life activities of an individual, a record of such impairment, or being regarded as having such an impairment. An individual is “regarded as having such an impairment” if he shows he was “subjected to an action prohibited under [the Act] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). A physical impairment is defined in the Equal Employment Opportunity Commission (EEOC) regulations 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 (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1). Obesity, a physical characteristic, is only considered an “impairment” when it is the result of a physiological condition. Citing, EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006), and Francis v. City of Meriden, 129 F.3d 281, 286 (2nd Cir. 1997). Likewise, the EEOC Interpretive Guidance advises, “It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments.” 28 C.F.R. Part 1630, App. “The definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” Id. “The definition, likewise, does not include characteristic predisposition to illness or disease.” Id.
The plaintiff applicant offered no evidence of present disability or functional limitations due to his obesity. The Court found his disability discrimination claim failed because, “[t]here is no evidence that [the plaintiff’s] obesity was caused by a physiological disorder, nor is there any evidence that his weight affected one or more body systems. In short, there is no evidence that [the plaintiff] had a physical impairment.”
The plaintiff applicant’s “regarded as” disabled claim also failed. The Court found the facts undisputed that the plaintiff “was denied employment . . . not because of any then current health risk identified by [the company] . . ., but because [the company] believed by having a BMI of 40, [the plaintiff] would or could develop such health risks in the future.” Citing, Plaintiff’s Brief. Citing to the EEOC Interpretative Guidance, the Court held that the definition of impairment “does not include characteristic predisposition to illness or disease.”
Morriss v. BNSF Ry. Co., Case No. 8:13CV42, 2014 WL 6612604 (Dist.Neb. November 20, 2014).