Listen to this post

The Seventh Circuit significantly narrowed the EEOC’s broad interpretation of the American with Disabilities Act (ADA) last month. The court held that the ADA does not cover discrimination based on a future impairment.

The Seventh Circuit determined that the “regarded as having” prong of the ADA does not extend to applicants who are rejected due to an employer’s concerns about future disabilities. Shell v. Burlington N. Santa Fe Ry Co. The Seventh Circuit joins the Eighth, Ninth, Tenth, and Eleventh Circuits in holding that the present tense “having” in the ADA does not include the future tense “will have.” The facts here involved an obese applicant, and not an applicant with an existing predisposition, so its practical impact may be narrower than at first blush.


The case arose when Burlington Northern Santa Fe Railway Company (BNSF) decided to in-source work at one of its yards in Chicago. Shell, the plaintiff, worked for the contractor at the yard for over 30 years. But, at 5’10” and over 330 pounds, BNSF rejected Shell’s application for employment over concerns about future possible health conditions. There was no concern regarding his present ability.

Both parties agreed that Shell did not currently have a qualifying medical condition. The decision turned on the word “having” and its context. The ADA makes it illegal to refuse to hire an applicant because the employee is “perceived as having an impairment.”

The court looked to the language of the ADA for guidance. It determined that the ADA required either that the applicant have a medical condition or that the employer mistakenly thought the applicant had a medical condition. In the court’s view, the language of the ADA does not cover the applicant’s denied employment because the company “viewed the applicant as at risk for developing a [disability] in the future.” As the court explained, the word “‘having’ means presently and continuously” and does not include “something yet to come.”

The EEOC filed an amicus brief arguing that Shell was covered based on the Dictionary Act, 1 U.S.C. § 1. Specifically, the EEOC relied on the Dictionary Act’s command that the use of the present tense includes the future as well. But, the court rejected this argument based on ADA’s plain language and context.

Setbacks For The EEOC’s Broad Interpretation

The Seventh Circuit’s opinion is only the most recent setback faced by the EEOC in this particular area. The Eighth Circuit, the Eleventh Circuit, the Ninth Circuit, and the Tenth Circuit all reached the same conclusion. Interestingly, two of the prior cases involved BNSF. It has now won on this question in three circuits. Notably for employers, the BNSF tracks end in Chicago, so another employer will need to take the lead in the eastern US.


This case shows that while broad, the ADA’s scope of protected disabilities is not boundless. However, employers should still use caution when making decisions based on an employee’s likelihood of developing future conditions. It’s possible that employees who are seen as likely to develop future medical conditions may already have some other underlying condition that entitles them to ADA protection.

For more, please contact your Baker McKenzie lawyer.