Safety and OSHA News

Company says he’s too fat to work safely: Applicant sues

An applicant was told he wasn’t qualified for a safety-sensitive job because of the “significant health and safety risks associated with [his] extreme obesity.” Now the applicant says the employer discriminated against him because of a disability — obesity.

Eric Feit applied to become a conductor for the Burlington Northern Santa Fe Railway Co.

BNSF offered Feit employment conditional on successful completion of a physical exam.

Then, the railroad sent word it could not hire Feit because of risks associated with extreme obesity unless he either lost 10% of his body weight or he completed additional physical exams at his own expense.

In other words, he was too fat to work safely, according to the company.

Feit said he didn’t have $1,800 to spend on a required sleep study, so he set out to lose the weight.

There’s some question as to whether Feit ever lost the weight.

One year after BNSF put the conditions on Feit’s employment, he filed a complaint with the Montana Department of Labor and charged the company with discriminating against him based on a disability.

A hearing officer ruled in Feit’s favor, concluding “BNSF engaged in and is liable for a discriminatory refusal to hire Feit because it regarded him as disabled.” Feit was awarded damages for lost wages and benefits, interest and emotional distress.

Appeals followed, with this question eventually landing in the lap of the Montana Supreme Court: Is obesity that is not the symptom of a physiological condition a physical or mental impairment under state code?

Is obesity now a disability?

The court received this case after the federal Americans with Disabilities Act was amended by Congress. In those amendments, lawmakers signaled that courts had been interpreting the ADA more strictly than they wanted.

So, even though obesity wasn’t considered a disability previously, Montana’s highest court said it must look at the issue through the lens of the amended ADA.

The Equal Employment Opportunity Commission’s guidance excludes weight from the definition of impairment only if it is both within normal range and not the result of a physiological disorder.

However, at severe levels, a deviation in weight may constitute an impairment.

The EEOC guidance also says severe obesity, which has been defined as body weight that’s more than double what’s considered normal, is clearly an impairment.

Given that guidance, the court ruled obesity that is not the symptom of a physiological disorder or condition may constitute an impairment if the person’s weight is outside normal range and affects one or more body systems.

Now that the Montana Supreme Court has answered that question, it will be up to a federal court to decide whether Feit was discriminated against because of a disability. So far, the decisions have gone Feit’s way, which makes it likely he will prevail in front of the federal court.

Look into accommodation

What can companies do to avoid a situation like this?

  • Don’t assume people can’t perform job tasks because of their size.
  • If an employee asks for an accommodation, discuss the situation with the employee to try to find a reasonable solution.
  • Train supervisors to recognize a request for an accommodation. It doesn’t have to include the word “accommodation.” It only needs to be a request for a change due to a health condition.

However, companies don’t need to provide accommodations that are difficult or expensive.

What do you think about the court’s ruling in this case? Have you ever addressed an accommodation for someone because they are severely obese? Let us know about it in the comments below.

(BNSF Railway Co. v. Feit, No. OP 11-0463, Supreme Court of MT, 7/6/12)

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Comments

  1. It is always somebody elses fault… I should probably start ingraining that mentality into my 4 year old so she has a chance in these litigious times we live in!

  2. For BNSF, safety is a huge concern.

    Imagine an 8,000 ton freight train at 55 MPH heading for the middle of a town. I want to be darn sure that the guy running the controls won’t have a stroke, a seizure, a heart attack or pass out from low blood sugar.

    I’m pretty sure that Epilepsy would disqualify a person from being a conductor, just like they can’t be a commercial trucker.

    And if I’m not mistaken, obesity makes a person much more likely for heart attacks, strokes and other impairing conditions. And I wouldn’t want someone with a higher risk than normal operating that train.

    BNSF loses either way. But I bet the cost of ‘damages for lost wages and benefits, interest and emotional distress’ is a lot less than a derailing.

    I would do the same thing, and I bet BNSF would too.

  3. BNSF offered Feit the job on condition that he succesfully pass physical exams. Feit did not. My question is “How come he was awarded damages for lost wages, benefits, interest, and emotional distress if he didn’t even work for for BNSF?” Why didn’t Feit go after the company he worked for before he applied to BNSF. I’m pretty sure if he was denied this job because of a weight issue his weight may of had something to do with him loosing his previous job.

  4. Oh Yeah, to answer the question “What can companies do to avoid a situation like this?” They can just simply tell whoever “The position has been filled”.

  5. I’ve never seen a trains walkways or working compartments but I imagine they are limited by the width of a train, which seems to me would be standard throughout their industry. If this guy was working as a conductor for another company I could see how he feels he could do the job safely. If there is indeed a legitimate safety concern about his ability to move safely throughout the train then I think the company is correct. If the company is correct and the court forces them to accomodate his “disability”, then what does that say about the General Duty Clause?
    On a side note, back in 2000 I found that I had gained over 100 lbs in the previous 9 years (that included 7 years of marriage and 2 years of divorce). I started walking, then bicycling, then running. I found that I really enjoyed it and since then I’ve run 5 marathons, numerous 10K’s and 5K’s and finished my one and only triathlon (not a strong swimmer). Asking someone to lose 10% of their bodyweight isn’t that difficult, it’s getting past the mental black that’s hard.

  6. If the offer of employment was conditional on passing the physical then the company should have no liability if Feit did not pass the physical. If a truck driver can’t pass their physical they can’t drive. Both agencies are regulated by the federal government so regulations should be similar. It’s ridiculous that the courts sided with him.

  7. I am in safety, this is becoming a real problem. Like Bryan stated this person could jeopardize the lives of many others by not being able to physically complete his task. With ladder equipment you have weight limitations, fall harnesses have size & weight limitations and most equipment has weight limitations. If a person’s health causes him/her to collapse at work, it is next to impossible to prove that heat or jobsite conditions did not contribute to the collapse. Thus making a recordable case & possible an employer responsible death. Military, law enforcement and fire all have physical requirements that must be met for employment so privet companies should be allowed the same provisions.

  8. Excellent article..i know this is in the USA but some common sense must prevail in situations like this. Thank you

  9. BNSF is trying to protect their business, employees and the public. Is the Montana Department of Labor willing to assume the liability if there is a train accident due to the physical condition issue? If BNSF doesn’t hire him, when is the damage responsibility for wages, benefits etc. considered over?

  10. I am a disabled Vet, my company allows me to use my own golf cart to assist me in performing my duties.
    I did not expect them to buy me a cart, I took the job knowing my limitations and all I asked for was a chance to prove I could do it. But if I was unable to perform the job to the expected level then they should have the right to move me to a position that would beter fit my abilities. I think BNSF’s only crime was being honest and giving him a chance and he didn’t do his part.

  11. Cricket says:

    I just don’t understand this country any more. If companies are forced by the courts to make “allowances” for people who are unable to perform their jobs safely, or properly – especially if that persons “disability” is due to their own negligence, or refusal, to put down the fork and move around some – where will these companies be in a decade? Maybe Mexico, or China. Maybe not the BNSF, but manufacturing companies will be subjected to this now as well. If one person wins this kind of lawsuit, you can be positive that similar suits against other companies will follow.
    With the unemployment problem we are facing – we should NOT be allowing law suits like this to hurt a large wage paying employer. A lot of people are under the impression that “Big Business can afford it, it’s not like I’d be taking money out of Grandma’s pocket or anything”. UNTRUE
    Companies are in the business to make money, not to give it away. If a company get sued and has to pay out a hefty sum, that cost is passed along in prices to their customers; who pass along to THEIR customers, and so on and so on; right on down to the end user – US, the general public.

  12. raynebc says:

    What a pathetic display of demanding what is not deserved.

  13. TedBean says:

    Airlines do not allow obese or disabled people to sit next to the emergency exits. If this fellow is too wide to move quickly through the narrow spaces on a train in an emergency the railroad may have a case. I was disqualified for some public safety jobs because of my glasses and whether I could adequately function in an emergency without them. What happens in this case will depend on how the company describes its actions.

  14. If we use Bryan’s thought process we need to start denying people who have headaches from driving cars or buses because of potential Aneurism or such. As far as the working area in a train compartment there is plenty of room for a large person to manuever around. The only place they (BNSF) has to hang there hat so to speak is where they gave the perspective employee an opportunity to meet the job requirments although it was done improperly. Job performance should be judged on performance not speculative assumptions. In this case they placed themselves directly in the path of an oncoming train called discrimination.

  15. Not to be too snarky, but does this mean BNSF must also accommodate a legally blind engineer? Clearly, the fact that running a train is not a sedentary pursuit means there are legitmate physical requirements for employment. A dispatcher could probably do OK being grossly overweight, but not a crew member. All that said, a court must rule according to the law. If the law is screwed up, they cannot (or at least should not) create a new text.

  16. Obesity is not a disability in my book because it’s preventable and cureable. This has the potential of starting a major feeding frenzie, no pun intended, for every over wheight person out there who enjoys sitting at home watching T.V., eating junk food and collecting welfare. What in the world is next? Maybe I don’t want to know the answer to that on second thought

  17. I disagree with Joe that obesity is cureable and preventable. I was put on steroids for an arthritic condition and as a result I gained considerable weight (50-60 lbs). Also because of my condition I am not able to exercise to get the weight off. Trying to put everyone in the same box is not thr right thing to do. You have to consider each person and their situation before judging. Anyone can have a health condition and it may not be easily seen. so trying to determine whether soneone should get a job based on potential health hazards is ludicris. Not everyone is out for a free ride. if the courts ruled in Mr. Feit’s favor then so be it.

  18. Tom – It is that way of thinking that put this country in the state it is in now – the applicant was given a chance to prove that he deserved the job and failed to do so. A morbidly obese individual piloting a train is as big of a safety risk as a narcoleptic truck driver.

  19. Christopher says:

    If Feit has no medical reason he can’t lose the weight, then he is not disabled, just lazy. This sort of thing is another one of those slippery slopes. Are we going to have to make accommodations for laziness, now? “It was just too hard to keep studying to get my doctorate once I started smoking dope – even though I’m not technically qualified, you need to accommodate me for my laziness.”

  20. Not sure what Tom you are speaking to Jeff but I am curious what the state this country is in that you are refering to. Once again assumptions of someone being a safety risk because of their size is crazy. A person should be placed in a position by their qualifications not the way they look and assuming that because they are big means they will die of a heart attack or something else while operating a train, bus, car or motorized shopping cart at the market. You are profiling when you assume that. That as I see it is whats wrong with this country. We allow people who can work to sit at home and collect while spending our time trying to keep the people who want to work out of work because they don’t fit our idea of a safe employee.
    Joe, response to your comment “for every over wheight person out there who enjoys sitting at home watching T.V., eating junk food and collecting welfare”
    Dr Phil says it best “Brother you got issues”

  21. Defined criteria to fill a position applied without variation to all is not descrimination. If this job had clear requirements such as a maximum BMI based on a height/weight chart, certain education or experience requirements, ability to pass physical or academic examinations, etc. and the applicant failed to meet those requirements then how can anyone say that is discrimination with a straight face?

  22. Ed – I find it hard to believe that you can’t exercise because of your condition. My mom goes to an exercise class for the elderly with arthrtic joints and frail bones. It’s done in a swimming pool with minimal to no impact on ones joints and bones. Also, there are alot of other ways out there of loosing unwanted weight if a person really wants to.

    Furthermore, I can’t believe you think it’s ludicris to take someones health condition into consideration before offering them a job. Yes everyone has different circumstances and issues and you would be foolish not to take that into consideration before hiring them

  23. Ed – How can you justify the courts decision? The guy didn’t even work for the company yet he gets to receive lost wages, benefits, interest, and emotional distress. He was denied the job because he failed his physical and the requirements that were agreed upon by both Feit and BNSF. Rulings like this are killing this country. What happened to the companies right to protect themselves? The ruling is just stupid.

  24. Joe and Ed both have great arguments but I believe that it lands in between both their arguments. Obesity to me is not a disability but it is controllable to a degree. Thyroid conditions and others can have adverse effects on a person’s weight and yes some medication to. I think that if such conditions are present then special consideration is needed, but if the person is just overly obese and does not have such conditions that they can control their weight and choose not to. That being said they would be the ones at fault and it would not be a disability or discrimination if they had a physical requirement for the job. So, since not knowing if they had a physical requirement BNSF could be liable for discrimination in my mind. If they had a physical requirement and the applicant had no conditions or medications that have increase in weight as a side effect, then they are ok with not hiring the applicant for being morbidly obese. They should still try and work with the person to possibly find a compromise and or at least see if they can perform the job fully and pass the physicals but legally I don’t think they should have lost.
    Again this is my own personal stance but that is open to change and difference of opinion…and well whatever they law chooses.

  25. This debate leaves enough questions unanswered because it doesn’t clearly state that Feit was hired or the he did or didn’t lose weight. The question here should be is obesity a disability. If so can a company refuse hiring a disabled person. The only real answer should be if there is a question of fit for the job then a fitness for duty evaluation would have protected the company. Not the normal physical you go through. Face it the normal physical is nothing more that a drug test with vitals taken.
    This is another one of those debated questions that is never going to have a clear cut answer.

  26. Tom – Sorry but it does say Feit wasn’t hired when in the article it clearly states” The railroad sent word it could not hire Feit because of risks associated with extreme obesity unless he either lost 10% of his body weight or he completed additional physical exams at his own expense”. If he would have done one or the other he would have gotten the job. The company gave Feit a fair chance to comply and he chose not to.

    Also the question is “What can companies do to avoid a situation like this?”

  27. ATC-David says:

    Everyone sues, it is the American way, this guy is probably thinking this is a great way to make money for doing nothing but sitting, eating and complaining and his lawyer (disgusting as they are) sees this is also about big bucks and deep pockets.

  28. Tom – I realize that there are over weight people who struggle to keep their extra pounds in check and work very hard at doing so. I am referring to the lazy leeches that this society is being attacked by. Glad to see that you have time to watch Dr. Phil on T.V. by the way.

  29. Captain Safety says:

    I don’t want to live on this planet anymore.

  30. SpurnedByBNSF says:

    The problem is with the way the BNSF does their hiring of conductors. When an area is hiring trainee conductors they accept online applications. Those that qualify are invited to interview. When I showed up there were over 300 people there for 10 trainee positions. First we took a “test” that measured our basic aptitude and some personality questions and some legal questions and drug use questions. About half of the applicants either did not finish this paperwork or chose not to return after the break. In the afternoon the interviews started for the qualified candidates, those who did not qualify were notified and sent home. The interviews actually took two days to complete. After a week I recieved my conditional offer of employment along with a packet and directions to the medical facility to conduct my drug screening and physical fitness assessment. I passed everything except the body composition assessement. I was given the same options as Mr. Feit, but I not only could afford the sleep study, but in fact had just completed one with a diagnosis of Mild disorded sleep (which went away when I quit smoking and chewing tobacco). I also had a clean lipids panel and a cardiac stress test where I took the machine to level 5 with no issues. Did I mention I had just left active military duty?
    Anyway BNSF’s Dr. in Forth Worth supposedly reviewed all the documentation and still rescinded the conditional offer of employment. I moved on and now have a much better paying but likely less fun career.
    Back to my point: BNSF could avoid this if they made the medical determination prior to making the conditional offer of employment; however they do it the way they do it in order to save money. Can you imagine how much they would waste doing medical examinations on all the people who would normally be weeded out through the initial interview and hair folicle test?
    As to Mr. Feit, I think he needs to move on too.

  31. Refreshing to read through comments that are so generally aligned on a topic. The frustrating part is that apparently the majority doesn’t matter anymore…the base principal our nation is founded on. The Supreme Courts and lawyers continue to show a ‘little guy’ and ‘exception’ protection attitude that is driving costs out of this planet. We deserve jobs moving out of this country with the laws and requirements we continue to put on the many in favor of the few. It isn’t that no one has a heart. It is that we cannot afford it or the majority doesn’t want to…that is their right by our system. Of course, the push is to move away from that to a Socialized system (if we aren’t there already). Some day we will wake up to that. You have to believe it will get better when the majority is still there as indicated by the comments.

    I often wonder…if we took all the monies we spend avoiding issues and just put it at attacking issues, would we be better off? In this case….how much will companies spend adjusting their business practices versus just paying a dietician to monitor this guy and if he doesn’t comply cut off any support funds to him. You should give up your rights to make decisions when someone else is paying your bills. We have all kinds of information that says being fat costs us. I understand there are those who can’t help it…spend the money on them. But those who can…put them on a progra with requirements and if they don’t comply, cut them off.

    In my opinion it all starts by regulating the lawyers so we quit championing the minority opinion. Let’s expand Texas’ decision of making losers in court pay the winner’s court fees to making losing lawyers pay the winning lawyers fees. I gotta believe a lot of the high risk battles like this one wouldn’t even be touched if the lawyer actually had something to lose.

  32. Very good arguments on both sides here. Tom- The assumptions I’m making are about the physical dimensions of the working area. You said in your first post that you are a veteran, so am I. I spent 8 years in the US Marines and I have spent many months on navy ships (LST’s mostly). The passageways, walkways, doorways and hatch’s are are very tight restricted areas. I imagine that a Railroad Engine would probably also have narrow working, walking areas as well. Again, these are only assumptions here, please someone correct me if I’m wrong.
    And to all those saying something is wrong with our country I disagree. There are things wrong with a lot of individuals but from someone who has seen a lot of the world, there’s no place else I’d want to live. Well, except maybe Bora Bora in one of those little huts above the water, with a supermodel, but that’s probably not gonna happen. Lol!

  33. Lyndell Miller says:

    I find too many questions unanswered to make a positive assumption here. Did the guy loose any weight at all? Did he even try? Did he find this a way to make a quick buck like so many others have done in the past? Did the guy ever once consider the physical ability needed to do the job in the first place or simply see it as a potentially easy way to make a good living? What did the original medical check reveal?

    It appears that today, everything under the sun now qualifies as a disability. Additionally, no one id held accountable for their own actions that may have led to their condition in the first place. At what point do we finally say enough is enough, or do we wait until so many are considered “disabled” that we now no longer have enough people to do the work? At what point are employers going to be made to make reasonable changes to their businesses in order to keep more people working?

    From so many years of experience, I do know that many, if not most employers are the source and cause of so many of our present day disabilities. But, I have yet to see much effort put into changing the “turn ’em and burn ‘m” attitude in business today. Sadly, recession and high unemployment simply fuels more of the same and makes it that much easier to abuse employees and increase the disability rate. Where will it end?

  34. I wonder if this guy was in a wheelchair, and he could not climb a ladder to get on the train.
    What would they do?
    Would he get back wages for a job he never had?

  35. I have provided our occupational health provider with a copy of our job descriptions; therefore, when an applicant gets their pre-employment physical the health provider has the information on hand of what the applicants’ job tasks will be.

    In the past some applicants, in the Physicians professional opinion, were not able to perform all, or some, of the tasks associated with their potential job so I was sent an email saying that they “did not” recommend that applicant be given the job, that’s it, nothing more. This settled the matter because our position was based on not hiring this applicant was solely based on the physicians report.

    If in-fact BNSF offered the applicant employment conditional on successful completion of a physical exam then there should have been no problem. However, the railroad told the applicant they could not hire the applicant because of the risks associated with his extreme obesity unless he either lost 10% of his body weight or he completed additional physical exams at his own expense, this is when they discriminated against him for health reasons.

    My opinion is based on the fact that hiring managers are not Physicians so they have no right to right to say if an applicant is physically able to perform any job. Because of the HIPPA Law no Doctor would, or should, never give specific details on why they did not recommend an applicant for a job to any third party.

  36. bnsf rick says:

    I think alot of you are crazy! I no first hand about this bull cause i had the same thing happen to me! i am 280 5-9″ i guarantee i am in better shape then three quarters of you guys I have pourn concrete for sixteen years! BNSF is a joke there is very little fat on my body but the numbers of the bmi put me in there to obese category! It is discrimination and it needs to stop! Shame on BNSF! As for him getting back pay and such I do not really care. I do however think BNSF should be held accountable for there practices.

    • We shall see how strong you are when your heart explodes at age 45. God forbid you are conducting a train at the time. You are morbidly obese, i would not hire you due to a lack of respect for yourself. If you cannot respect yourself, an asset, how can you respect the other assets of my company?

  37. concernedfriend says:

    You guys floor me. No doctor is going to say a person can’t perform a job based on his weight. If they do then they are fools. The person I know that went through this is not extremely over weight. They passed everything just like feit and was given the same responds except this happened in wyoming. When it was all. Said and done they told her she needed to loss weight. She has now lost 40 pounds and has beat herself up over this. She has no problem doing the job and was doing it for another company. it wad so hard to watch her go through this. Now she is applying but I will tell you that this pissed me off as the national average for weight is 66% of what we would call fit. I am 5’1″ 120 pounds. She is 5’6′ 175 pounds. They did this to her and I had a friend on the inside hiring committee that was giving me blow by blow. I was floored. If a person loses 40 pounds and goes to work there the chances of that person keeping the weight off is slim to none.When I asked why a company would do this it was about the bottom dollar. Medical insurance. People that are over weight tend to go to the doctor more and cost the company money. This is discrimination. I know you all where thinking it and in her case they are wrong.

  38. Pissed Off Person says:

    Jesus… I don’t see the problem here… this guy is twisting the system and getting away with murder because he is too damn fat to work a job. So what… if you’re that butt hurt about it, don’t apply for a job that they want to put restrictions on. Go try to join the military, when they won’t let you because you’re too fat, sue the federal government and see how far that gets you….

  39. Alright I will join this discussion I am a 52 year old woman I weigh 153 pounds 5 ft 10 in in excellent shape I am a maintenance custodian for 29 years . My work place hired me a new girl 35 years old 325 pounds! She was not required to pass a physicalshe has her knees injected every 3 months! She can’t go up on vertalift or ladder because she is over the weight limit! She can not weed eat her arms get tired ..she can’t ride the rider mower because she can’t fit behind the steering wheel! Our bosses don’t make her do anything i have complained I am beyond frustrated! She has gotten nasty with me on 3 occasions unprovoked ! The last time I had a witness! She has told me I’m not her boss! So while I’m working she sits around eating 3 pound bags of m and ms I hate to get someone fired but I can hardly take it anymore! And I don’t even know if they will fire her because of it being a government job! Do they deserve the job if they can’t do it? No! My ex boyfriend weighed 330 pounds at 6 ft 7 but he could out work many and my daughter is heavy but she works so I am not against overweight people but if you can’t do the job you can’t do it

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