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The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of “precogs” to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit’s decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of “likely to develop a future disability,” without violating the ADA, because the individual does not currently have the status of “disabled.”
Continue Reading The future is now: Employer use of present-day medical information to predict future disabilities does not violate the ADA

Imagine you are a human resources professional or in-house employment counsel and you learn that an employee in your organization is seeking a job transfer or other accommodation because with a body weight of almost 600 pounds, he is too overweight to do his present job. What do you do?

A recent decision from the U.S. Court of Appeals for the Seventh Circuit highlights how courts across the country have interpreted the Americans with Disabilities Act (ADA) in workplace situations involving obesity. If a workplace challenge relating to obesity hasn’t happened in your organization yet, it is increasingly likely to happen soon. The Journal of the American Medical Association reports that rates of American adults with obesity have continued to increase over the past decade according to researchers from the Centers for Disease Control and Prevention (CDC). Their findings comport with a trend line dating back to the 1980s. With that trend in mind, let’s examine Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).

Mark Richardson worked as a bus driver for 13 years. In September of 2010, weighing nearly 600 pounds, Richardson’s employer required that he undergo a safety assessment following a medical leave. During the assessment, he was unable to perform several safety driving functions (for example, hand-over-hand steering) because of his obesity. Richardson argued under the ADA and related agency regulations and guidance that severe obesity should automatically qualify as an ADA impairment, without having to show any other underlying physiological cause.Continue Reading Is extreme obesity a physical characteristic or a disability?

In our previous blog, “Are obese workers protected from discrimination” , we confirmed the advocate general’s opinion in the case of Kaltoft v Municipality of Billund (case C-354/13) that while obese workers were not automatically covered by EU disability discrimination law, the worker may be considered to be disabled where he or she is “severely…

Summary

An opinion on whether an obese worker is protected under discrimination law has been issued by Advocate General Jääskinen. It was found that while obese workers are not automatically covered, where a worker is "severely, extremely or morbidly obese", the worker may be considered to be disabled and therefore protected under discrimination law.

We…