TK Attorneys Mentioned in Law360 on BNSF Railway Co. Case

“BNSF Denial For Obese Applicant Violates ADA, 7th Circ. Told”

An obese BNSF Railway Co. applicant urged the Seventh Circuit on Thursday not to buy the railroad’s claims that it rescinded his job offer based on concerns that he could develop disabilities.

BNSF’s attorney, Bryan P. Neal of Thompson & Knight LLP, argued Judge Scudder’s epilepsy example would only provide the applicant a claim under the ADA if that prospective employer believed the applicant already suffered from the condition when it denied that person a job.

And since BNSF did not base its employment decision on the belief that Shell was already impaired when he applied with the railroad, he shouldn’t be able to ask a fact finder to determine whether the railroad violated the ADA, Neal said.

“BNSF’s action was … based on risk factors, and there’s a difference between a risk factor and a condition,” he argued.

The lower court’s summary judgment denial held that employers who act on the basis of risk for future impairment are acting under a perceived impairment, Neal told the panel. He argued reversing that ruling would put the court in line with the Eighth and Eleventh Circuits, which have already rejected the same theory used in the lower court’s ruling.

“Our decision was based on medical science,” Neal said.

BNSF is represented by Bryan P. Neal and Stephen F. Fink of Thompson & Knight LLP.