State News : New Jersey

An important ADA decision has come from the Court of Appeals in the Eighth Circuit inMorriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2016).  The case stems from a post-offer medical examination.  Melvin Morriss applied for a machinist position and received a conditional offer of employment.  He was required to undergo a medical review because the position was safety sensitive.  He noted on the medical questionnaire that he weighed 270 pounds and stood 5’10” tall.  He was not currently a diabetic and did not have any health concerns.  He noted no limitations in daily activities.

BNSF doctors examined Morriss and noted that he weighed 281 pounds and had a body mass index of 40.9 in the first exam and 40.4 in the second exam.  Because his BMI exceeded the company’s qualification standards, the company’s medical department advised Morriss that he was not currently qualified due to significant health and safety risks related to Class 3 obesity, which entailed a BMI of 40 or greater.  BNSF then revoked the job offer, and Morriss sued alleging discrimination under the ADA.

Morriss lost in the district court, which noted that Morriss had denied suffering from any medical impairment on BNSF’s medical questionnaire.  His personal doctor said he did not suffer from any medical condition which caused his obesity.  He had no limitations at all.  The court therefore dismissed his case and Morriss appealed.

The Court of Appeals focused on whether Morriss had an impairment under the ADA.  Morriss argued that Congress stated in the ADAAA (Americans with Disabilities Act Amendments Act) that whether an impairment exists should not demand extensive analysis.  The Eighth Circuit rejected that argument and extensively analyzed the history of the definition of impairment going back to the original ADA guidance and statutory language. It considered the EEOC Interpretive Guidance on physical impairment:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments.  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.  The definition, likewise, does not include characteristic predisposition to illness or disease.  Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.

The Court held that plaintiff had to prove both that his weight falls outside the normal range AND that it is due to a physiological disorder.  Plaintiff challenged the Court’s interpretation by arguing that when Congress passed the ADAAA it specifically intended to construe the law in favor of broad coverage.  The Eighth Circuit answered by noting that Congress accomplished this broader coverage by adopting a far more generous definition of “substantial limitations of major life activities.”  It said,  “Notably, Congress did not express any disagreement with judicial interpretations of the term ‘physical impairment.‘”  In this way the Court overcame the argument that the ADAAA required a more expansive interpretation of obesity as an impairment.  “Thus, because the ADAAA did not alter that definition, pre-ADAAA case law holding that obesity qualifies as a physical impairment only if it results from an underlying physiological disorder or condition remains relevant and persuasive.”

The Court said “weight is merely a physical characteristic — not a physical impairment — unless it is both outside the normal range and the result of an underlying physiological disorder.” The Court said that even for morbid obesity, the same test must be met. For much the same reasons, the Court rejected plaintiff’s alternative argument that BNSF violated the ADA by regarding him as being disabled.  It said that the ADA only prohibits an employer from discriminating against an individual on the basis of a physical impairment. “But the ADA 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.”

In very clear language the Court emphasized, “The ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”

This case is very important to employers who do post-offer medical examinations and have similar standards for hiring in safety sensitive positions.  Employers must distinguish between physical characteristics as opposed to actual physical impairments.  Making decisions based on physical characteristics that are not now impairments is not discrimination under the ADA according to the Eighth Circuit Court of Appeals.  The key in this case was that Morriss himself said he had no physical impairment, as did his own physician.   Plaintiff was never able to show that he had a current impairment under the ADA, and the employer had a right to make decisions focused on physical characteristics that may eventually lead to physical impairments.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.