Melvin Morriss, III v. BNSF Railway Company

            United States Court of Appeals
                       For the Eighth Circuit
                   ___________________________

                           No. 14-3858
                   ___________________________

                          Melvin A. Morriss, III

                  lllllllllllllllllllll Plaintiff - Appellant

                                      v.

           BNSF Railway Company, a Delaware corporation

                  lllllllllllllllllllll Defendant - Appellee

                        ------------------------------

             Equal Employment Opportunity Commission

            lllllllllllllllllllllAmicus on Behalf of Appellant(s)

              Chamber of Commerce of the United States

            lllllllllllllllllllllAmicus on Behalf of Appellee(s)

                                   AARP

            lllllllllllllllllllllAmicus on Behalf of Appellant(s)

Equal Employment Advisory Council; National Federation of Independent
               Business Small Business Legal Center

             lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                  ____________

               Appeal from United States District Court
                 for the District of Nebraska - Omaha
                            ____________
                           Submitted: December 17, 2015
                               Filed: April 5, 2016
                                  ____________

Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.

      Melvin Morriss appeals from the district court’s1 order granting BNSF Railway
Company’s (BNSF) motion for summary judgment and denying his motion for partial
summary judgment on his claims that BNSF refused to hire him on account of his
obesity and thereby discriminated against him in violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, as amended by the ADA
Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553, and the
Nebraska Fair Employment Practice Act (NFEPA), Neb. Rev. Stat. §§ 48-1101 to -
1126.2 We affirm.

       Morriss applied for a machinist position with BNSF in March 2011 and was
extended a conditional offer of employment. Because the position was safety
sensitive, however, the offer of employment was contingent on a satisfactory medical
review. Morriss completed BNSF’s medical questionnaire, reporting that he was
5’10” tall and weighed 270 pounds, that he had once been diagnosed as “pre-diabetic”
but was not currently diabetic, that he had taken appetite-suppressant medication to


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
      2
       Because disability-discrimination claims under the NFEPA are analyzed under
the same framework as claims brought under the ADA, we need not conduct a
separate analysis of Morriss’s state-law claims. See Orr v. Wal-Mart Stores, Inc., 297
F.3d 720, 723 (8th Cir. 2002).

                                         -2-
lose weight but not to address any health concerns, that he considered his overall
health “good,” and that he experienced no difficulties or limitations in his daily
activities. In response to BNSF’s request for additional information concerning
Morriss’s possible history of diabetes, Morriss’s doctor submitted treatment records
for the first three months of 2011, which did not reflect a current diagnosis of diabetes
or any symptoms of diabetes.

       In May 2011, BNSF doctors conducted two physical examinations of Morriss:
at one, Morriss weighed 285 pounds and had a body mass index (BMI) of 40.9; at the
other, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire
a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40.
Because Morriss’s BMI exceeded BNSF’s qualification standards, the company’s
medical department notified Morriss by email that he was “[n]ot currently qualified
for the safety sensitive Machinist position due to significant health and safety risks
associated with Class 3 obesity ([BMI] of 40 or greater).” BNSF then revoked its
conditional offer of employment.

       Morriss filed this suit in January 2013, alleging that BNSF discriminated
against him when it revoked its offer of employment based on his obesity. He claimed
that his obesity was an actual disability under the ADA and that BNSF regarded his
obesity as an actual disability. BNSF filed a motion for summary judgment, arguing
that Morriss’s obesity did not meet the definition of disability under the ADA because
it was not a “physical impairment” and that BNSF did not regard his obesity as a
disability. Morriss moved for partial summary judgment only on his claim that BNSF
regarded his obesity as a disability.

        The district court found that Morriss had failed to provide any evidence to
support his claim that his obesity was an actual disability under the ADA. The court
first noted that to succeed on this claim, Morriss was required to show that his obesity
was a physical impairment, defined under the ADA as a physiological disorder or

                                          -3-
condition that affects a major body system. The court noted that Morriss had
unequivocally denied suffering from any medical impairment or condition on BNSF’s
medical questionnaire, had described his health as “good,” and had disclosed no
difficulties or limitations in his daily activities. Morriss had instead stated that he did
not believe he had a physical disability, that he was not aware of any underlying
condition that contributed to his obesity or to his inability to lose weight, and that his
weight caused no physical limitations. Morriss’s personal doctor, who also testified
as Morriss’s expert witness, stated that Morriss did not suffer from any medical
condition that caused his obesity or any medical condition associated with obesity,
such as diabetes, hypertension, cardiac disease, or sleep apnea; that Morriss had no
limitations placed on his activities; and that Morriss was capable of performing the
duties of the machinist position. Morriss also admitted that BNSF had received no
information to contradict any of the responses he and his doctor had provided
regarding his health and medical history. Based on this evidence, the district court
found that Morriss’s claim that his obesity was an actual disability necessarily failed
because he did not prove that it was a physical impairment, i.e., a physiological
disorder or condition that affected one or more major body systems.

       The court also granted BNSF summary judgment on Morriss’s claim that the
company regarded him as having a disability. The court noted that although BNSF
admittedly acted on its internal policy that an applicant with Class III obesity and a
BMI that equaled or exceeded 40 posed an unreasonably high risk of developing
certain medical conditions in the future, the definition of physical impairment—and
thus disability—under the ADA did “not include characteristic predisposition to
illness or disease.” Order of D. Ct. of Nov. 20, 2014, at 5-6. Because BNSF acted
only on its assessment of Morriss’s predisposition to develop an illness or disease in
the future, it did not regard him as having a disability under the ADA. The district
court therefore granted BNSF’s motion for summary judgment, denied Morriss’s
motion for partial summary judgment, and dismissed the action with prejudice. On
appeal, Morriss argues that his obesity, even without evidence of an underlying

                                           -4-
physiological disorder or condition, is a physical impairment—and thus a
disability—under the ADA and that BNSF regarded it as such. The question on
appeal, therefore, is whether obesity qualifies as a disability under the ADA.

       We review a grant of summary judgment de novo, EEOC v. Prod. Fabricators,
Inc., 763 F.3d 963, 969 (8th Cir. 2014), and affirm if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law,” id.
(quoting Fed. R. Civ. P. 56(a)). While the nonmoving party receives the benefit of all
reasonable inferences that may be drawn from the evidence, he must come forward
with specific facts to show that there is a genuine issue for trial. See Walz v.
Ameriprise Fin., Inc., 779 F.3d 842, 844 (8th Cir. 2015). “A complete failure by the
non-moving party ‘to make a showing sufficient to establish the existence of an
element essential to that party’s case . . . necessarily renders all other facts
immaterial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

       The ADA makes it unlawful for a covered employer to discriminate against any
“qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To succeed
on a disability-discrimination claim under the ADA, a claimant must show that he was
a “qualified individual” who suffered “discrimination” that was based on a
“disability” as each of those terms is defined by the Act. See Brown v. City of
Jacksonville, 711 F.3d 883, 888 (8th Cir. 2013). This appeal turns on the meaning of
term “disability,” which the ADA defines as “(A) a physical . . . impairment that
substantially limits one or more major life activities . . . (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1)(A)-(C). Morriss challenges only the district court’s adverse grant of
summary judgment on his claim that BNSF regarded him as having a physical
impairment. An individual is “regarded as having such an impairment” if he
establishes that he was discriminated against “because of an actual or perceived
physical . . . impairment whether or not the impairment limits or is perceived to limit
a major life activity.” Id. § 12102(3)(A). Thus to prevail on his “regarded as” claim,

                                         -5-
Morriss was required to show that his obesity was an actual or perceived physical
impairment.

        The ADA does not define physical impairment, but the EEOC, exercising its
statutory authority to issue regulations implementing the ADA, see id. § 12205a, has
defined the term to mean “[a]ny 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) (emphasis added).
Under the plain language of this definition, obesity is not a physical impairment unless
it is a physiological disorder or condition and it affects a major body system.
        Morriss contends that this definition of physical impairment cannot be read in
isolation and must be considered in light of EEOC interpretive guidance, which refers
to weight and states:

      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.

Appendix to Part 1630—Interpretive Guidance on Title I of the ADA (interpretive
guidance), 29 C.F.R. Pt. 1630, App’x § 1630.2(h) (emphasis added).

       Morriss interprets this language to mean that an individual’s obesity must be
the result of a physiological disorder only if his weight is within “‘normal’ range.” See


                                          -6-
BNSF Ry. Co. v. Feit, 281 P.3d 225, 231 (Mont. 2012) (construing EEOC interpretive
guidance and concluding, “Obesity that is not the symptom of a physiological disorder
or condition may constitute a ‘physical . . . impairment’ . . . if the individual’s weight
is outside ‘normal range’ and affects ‘one or more body systems’ as defined in 29
C.F.R. § 1630.2(h)(1) (2011).”). We disagree with this reading of the interpretative
guidance. Instead, like the district court, we conclude that a more natural reading of
the interpretive guidance is that an individual’s weight is generally a physical
characteristic that qualifies as a physical impairment only if it falls outside the normal
range and it occurs as the result of a physiological disorder. Both requirements must
be satisfied before a physical impairment can be found. In other words, even weight
outside the normal range—no matter how far outside that range—must be the result
of an underlying physiological disorder to qualify as a physical impairment under the
ADA.

       A reading of the EEOC interpretive guidance in its entirety supports this
conclusion. As set forth above, in addition to the language regarding obesity, the
interpretive guidance also provides that “[o]ther conditions, such as pregnancy, that
are not the result of a physiological disorder are also not impairments.” 29 C.F.R. Pt.
1630, App’x § 1630.2(h). As with the physical characteristics of height, weight, and
muscle tone, “other conditions” are not “impairments” unless they are the result of an
underlying physiological disorder. Taken as a whole, the relevant statutory and
regulatory language makes it clear that for obesity to qualify as a physical
impairment—and thus a disability—under the ADA, it must result from an underlying
physiological disorder or condition.

       Two circuit courts have reached this result. In EEOC v. Watkins Motor Lines,
Inc., 463 F.3d 436, 442-43 (6th Cir. 2006), the Sixth Circuit rejected the argument
raised here, namely, that weight far outside the normal range may constitute a physical
impairment even in the absence of an underlying physiological disorder or condition.
The Sixth Circuit held that, “consistent with the EEOC’s own definition, . . . to

                                           -7-
constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the
result of a physiological condition.” Id. at 443. The court rejected the EEOC’s
assertion that a physical impairment could be shown either by “weight problems
caused by a physiological condition” or by “morbid obesity . . . regardless of the
cause.” Id. at 441. After citing to the EEOC interpretive guidance explaining that
physical characteristics like weight are excluded from the definition of physical
impairment, the court stated:

      We decline to extend ADA protection to all “abnormal” (whatever that
      term may mean) physical characteristics. To do so “would make the
      central purpose of the statutes, to protect the disabled, incidental to the
      operation of the ‘regarded as’ prong, which would become a catch-all
      cause of action for discrimination based on appearance, size, and any
      number of other things far removed from the reasons the statutes were
      passed.” Francis v. City of Meriden, 129 F.3d 281, 287 (2d Cir. 1997).
      Thus, consistent with the EEOC’s own definition, we hold that to
      constitute an ADA impairment, a person’s obesity, even morbid obesity,
      must be the result of a physiological condition.

Watkins Motor Lines, 463 F.3d at 443. The Second Circuit reached the same
conclusion, reasoning that obesity, by itself, does not qualify as a physical impairment
because “‘physical characteristics that are “not the result of a physiological disorder”
are not considered “impairments” for the purposes of determining either actual or
perceived disability.’” Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997)
(quoting Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997)). The court concluded
that “obesity, except in special cases where the obesity relates to a physiological
disorder, is not a ‘physical impairment’ within the meaning of the [ADA].” Id.
Several other courts have concluded likewise. See, e.g., Wagner’s Pharmacy, Inc. v.
Pennington, No. 2013-SC-000541, 2015 WL 2266374, at *8 (Ky. Sept. 24, 2015)
(unpublished per curiam) (interpreting Kentucky Civil Rights Act consistently with
federal law and concluding under EEOC regulations that “[a]bsent a physiological
cause for her morbid obesity, [plaintiff] cannot prevail”); Ivey v. D.C., 949 A.2d 607,

                                          -8-
612-13 (D.C. 2008) (rejecting claim that obesity rendered plaintiff disabled and noting
that, although morbid obesity can be considered a disability when supported by
evidence that it was the result of physiological condition, no such evidence was
proffered); Merker v. Miami-Dade Cnty. Fla., 485 F. Supp. 2d 1349, 1353 (S.D. Fla.
2007) (same); Marsh v. Sunoco, Inc., No. 06-CV-2856, 2006 WL 3589053, at *4
(E.D. Pa. Dec.6, 2006) (concluding that “‘[p]hysical characteristics that are not the
result of a physiological disorder are not considered impairments for the purposes of
determining either actual or perceived disability’” (quoting Francis, 129 F.3d at 286));
Coleman v. Ga. Power Co., 81 F. Supp. 2d 1365, 1369-70 (N.D. Ga. 2000) (refusing
to “say that morbid obesity cannot be shown to be a physical impairment in some
cases,” but finding that plaintiff had not made necessary showing “that his morbid
obesity [was] a physiological disorder”); Fredregill v. Nationwide Agribusiness Ins.
Co., 992 F. Supp. 1082, 1088-89 (S.D. Iowa 1997) (“It is not enough that [employer]
perceived [claimant] as obese. He must establish both components which inhere in
the definition: that [employer] regarded him as having (1) a physical impairment
within the meaning of the ADA, which (2) substantially limited him in working.”); cf.
Cook v. R.I. Dep’t of Mental Health, 10 F.3d 17, 22-25 (1st Cir. 1993) (noting that
because expert testimony established that morbid obesity was the result of a
physiological disorder or condition, it was a physical impairment).

       Morriss argues that the decisions in Watkins Motor Lines and Francis are
inapposite because those cases were decided prior to the enactment of the ADAAA,
which made substantial revisions to the ADA. He cites instead post-ADAAA cases
that hold that obesity is a physical impairment under the ADA—even in the absence
of an underlying physiological disorder or condition. See Feit, 281 P.3d at 231
(noting that ADA, ADAAA, and EEOC interpretive guidance are persuasive authority
for construing state law and holding that obesity that is not the result of a
physiological disorder or condition may constitute a physical impairment under
Montana Human Rights Act if weight is outside “normal range” and affects “one or
more body systems”); EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688, 694

                                          -9-
(E.D. La. 2011) (construing EEOC interpretive guidance and reasoning that a
physiological cause for obesity is required only when an ADA disability-
discrimination claimant’s weight is within the normal range). These cases cite
Congress’s general policy statements in the ADAAA as support for an expansive
interpretation of “disability,” noting that Congress expressed an intent to provide
“broad coverage” of individuals with disabilities.

       Congress’s stated goal in enacting the ADAAA was to ensure that “[t]he
definition of disability . . . be construed in favor of broad coverage of individuals
under [the ADA].” 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. Pt. 1630, App’x
§ 1630.1(c). Congress intended that the ADAAA abrogate certain Supreme Court
rulings that improperly “narrowed the broad scope of protection . . . originally
intended under the ADA.” 29 C.F.R. Pt. 1630, App’x at Intro. (noting Congress’s
intent to reject the reasoning and standards imposed by the Supreme Court in Sutton
v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Manufacturing, Kentucky,
Inc. v. Williams, 534 U.S. 184 (2002), that too narrowly interpreted when an
impairment “substantially limits a major life activity”). To achieve its stated goal,
Congress took aim directly at judicial interpretation of the “substantially limits a
major life activity” aspect of the then-current definition of “disability,” and it
instructed the EEOC to modify its regulations to address those concerns. Congress
“expect[ed] that the EEOC [would] revise that portion of its current regulations that
defines the term ‘substantially limits.’” Id. at (7). In response, the EEOC revised the
definition of “substantially limits” to remove the requirement that an impairment
“prevent[] or significantly or severely restrict[] the individual from performing a
major life activity.” Id. § 1630.2(j)(1)(ii). This revision was extended to “regarded
as” disabled cases, with the EEOC taking the position that “it is not necessary to
determine whether an individual is ‘substantially limited’ in any major life activity”
for “regarded as” disabled cases. Id. § 1630.2(j). The EEOC also modified its
definition of “major life activity” to include not only physical activity, but certain



                                         -10-
non-physical activities, and it further directed that “major life activity” should not be
“interpreted strictly to create a demanding standard for disability.” Id. § 1630.2(i).

        Notably, Congress did not express any disagreement with judicial
interpretations of the term “physical impairment.” Congress expressly stated its intent
to abrogate the Supreme Court’s interpretation of “substantially limits a major life
activity” in Sutton and Toyota Manufacturing, and presumably would have done the
same had it intended to abrogate the interpretation of “physical impairment” in
Watkins Motor Lines and Francis. See Lorillard v. Pons, 434 U.S. 575, 580 (1978)
(noting that “Congress is presumed to be aware of [a] . . . judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a statute without change”).
Similarly, although Congress instructed the EEOC to revise its definitions of
“substantially limits” and “major life activity” to ensure broad coverage of individuals
with disabilities, it gave no instructions regarding the definition of physical
impairment.3 Instead, even after the ADAAA, “physical impairment” is defined as a
physiological disorder or condition that affects a major body system. See 29 C.F.R.
Pt. 1630, App’x § 1630.2(h) (noting that “Congress ‘expect[s] that the current
regulatory definition of [physical impairment], as promulgated by [the EEOC] will not
change’” (citation omitted)). 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. Although Morriss asserts that the ADAAA’s overarching policy objective
to provide “broad coverage” points toward a more expansive interpretation of physical
impairment, the ADAAA’s policy goal is itself constrained by language that limits the
intended broad coverage to the “extent permitted by the terms of [the ADA].” Id.



      3
       The only change in the EEOC’s definition of physical impairment after
enactment of the ADAAA was the addition of the immune and circulatory body
systems, a change that has no effect on this case. Compare 29 C.F.R. § 1630.2(h)(1)
(2010), with 29 C.F.R. § 1630.2(h)(1) (2014).

                                          -11-
§ 1630.1(c).4 Under both the ADA and the EEOC regulations and interpretive
guidance, a “physical impairment” must be the result of an underlying physiological
disorder or condition. The ADAAA’s general policy statement cannot trump this
plain language.

       Morriss also cites a provision in the EEOC interpretive guidance that says that
Congress intended that the “threshold” question whether an “impairment is a
disability” under the ADA “‘should not demand extensive analysis.’” Id. § 1630.2(g).
He contends that this statement supports an expansive reading of the term “disability.”
Again, we disagree. Congress may have expressed an intent to apply a less rigorous
standard to the question whether an impairment “substantially limits a major life
activity,” but the EEOC’s hoped-for less restrictive analysis of whether an impairment
exists is cut from whole cloth, for an individual must first establish that he has a
qualifying impairment before the less “extensive analysis” is applied to determine
whether the impairment “substantially limits a major life activity” requirements.

      Morriss contends that his obesity, in and of itself, is a physical impairment
because it has been labeled “severe,” “morbid,” or “Class III” obesity. This
contention garners no support from the EEOC regulations, which state that 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. As


      4
        The EEOC contends in its amicus brief that its post-ADAAA interpretation of
“physical or mental impairment” is entitled to deference. The agency has not
modified its regulations or interpretive guidance construing these terms, however, and
its contradictory position in this litigation thus is not entitled to deference. See Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (“We have never applied
[Chevron deference] to agency litigating positions that are wholly unsupported by
regulations, rulings, or administrative practice.”); see also Smith v. Aegon Cos.
Pension Plan, 769 F.3d 922, 929 (6th Cir. 2014) (refusing to defer “to a line of
reasoning that an agency could have, but has not yet, adopted” except in amicus briefs
(citation omitted)).

                                          -12-
previously noted, Morriss has provided no evidence to prove that his obesity is the
result of a physiological disorder, and so he instead cites the EEOC Compliance
Manual, which states that, while “normal deviations” in weight “that are not the result
of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such
deviations may constitute impairments.” EEOC Compliance Manual § 902.2(c)(5).
The Compliance Manual also states that “severe obesity,” namely, “body weight more
than 100% over the norm,” is an impairment. Id.

       We first note that this Compliance Manual pronouncement directly contradicts
the plain language of the Act, as well as the EEOC’s own regulations and interpretive
guidance, which, as previously explained, all define “physical impairment” to require
an underlying physiological disorder or condition. We next note that the argument
raised by Morriss was considered and rejected by the Sixth Circuit in Watkins, in
which the court concluded that morbid obesity was not a physical impairment in and
of itself merely because it fell further outside the normal range than some other
category of obesity. See 463 F.3d at 443 (holding that “consistent with the EEOC’s
own definition” of impairment, “a person’s obesity, even morbid obesity, must be the
result of a physiological condition”). Moreover, even if we accepted Morriss’s
argument that “body weight more than 100% over the norm” qualifies as a physical
impairment even without an underlying physiological disorder or condition, his claim
would fail. “Norm” as used in this context refers to the average weight of the general
population. According to the Centers for Disease Control and Prevention (CDCP), the
mean weight, i.e., the norm, for a man of Morriss’s age (37 at the relevant time) is
199.5 pounds.5 Weight “more than 100% over” 199.5 pounds is weight of at least 399
pounds. Morriss did not weigh 399 pounds when BNSF conducted its two physical



      5
        Centers for Disease Control and Prevention, Anthropometric Reference Data
for Children and Adults: United States 2007-2010, at 10 tbl.6 (2012),
http://www.cdc.gov/nchs/data/series/sr_11/sr11_252.pdf (reporting data from the
National Health and Nutrition Examination Survey).

                                         -13-
examinations of Morriss or when it revoked its offer of employment. Thus, Morriss
did not have a physical impairment even under his suggested definition of the term.

       In sum, we conclude that for obesity, even morbid obesity, to be considered a
physical impairment, it must result from an underlying physiological disorder or
condition. This remains the standard even after enactment of the ADAAA, which did
not affect the definition of physical impairment. Because Morriss failed to produce
evidence that his obesity was the result of an underlying physiological disorder or
condition, the district court properly concluded that Morriss did not have a physical
impairment under the ADA.

       We turn, then, to Morriss’s argument that BNSF discriminated against him
because it perceived him has having a physical impairment. See 42 U.S.C.
§ 12102(3)(A). Morriss argues that BNSF refused to hire him because it considered
his obesity to present an unacceptably high risk that he would develop certain medical
conditions in the future, and that BNSF therefore perceived him as having a current
physical impairment. We disagree. The ADA prohibits an employer from
discriminating against an individual on the basis of a presently existing “physical
impairment” as that term is defined under the Act. See id. § 12102(A), (C) (defining
disability as a “physical impairment” or “being regarded as having such an
impairment” (emphasis added)). 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. An individual has a “disability” under the ADA if he has “a
physical . . . impairment”or is “regarded as having such an impairment.” 42 U.S.C.
§ 12102(1)(A),(C) (emphasis added). In other words, as a threshold matter, Morriss
was required to show that BNSF perceived his obesity to be a condition that met the
definition of “physical impairment.” 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.

                                        -14-
Instead, the plain language of the ADA prohibits actions based on an existing
impairment or the perception of an existing impairment. As noted by the district
court, the EEOC’s own interpretive guidance specifically states that “the definition [of
impairment] . . . does not include characteristic predisposition to illness or disease.”
29 C.F.R. Pt. 1630, App’x § 1630.2(h).

       Morriss did not produce evidence that BNSF perceived his obesity to be an
existing physical impairment—in fact, the questionnaire and treatment records that
Morriss and his doctor provided to BNSF notified the company that Morriss was not
suffering from any physical impairment. The physical examinations conducted by
BNSF revealed that Morriss’s BMI exceeded BNSF’s internal limits for
safety-sensitive positions, but those examinations did not reveal that Morriss had a
physical impairment. Indeed, it was “undisputed that Morriss ‘was denied
employment . . . not because of any then current health risk identified by BNSF . . . ,
but because BNSF believed by having a BMI of 40, [Morriss] would or could develop
such health risks in the future.’” Order of D. Ct. of Nov. 20, 2014, at 5 (quoting
Plaintiff’s Supporting Brief at 11). The district court properly rejected Morriss’s
argument that BNSF perceived him as having a physical impairment.

      The judgment is affirmed.
                      ______________________________




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