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BNSF Railway Company v. Equal Employment Opportunity Commission

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-35457 · judgment September 12, 2018

Certiorari denied · November 12, 2019
Pre-decision estimate: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a circuit split argued in the petition, and a business petitioner.

Questions presented

The Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination on the basis of “disability.” One type of “disability”—called “regarded as” disability—exists when an employer takes an action the statute prohibits “because of an actual or perceived physical or mental impairment.” Recognizing that medical information is often relevant to employment, however, the ADA authorizes employers to require job applicants and employees to undergo medical examinations and to respond to medical inquiries subject to certain conditions. This case arises out of an employer’s medical-examination requirement made expressly to determine whether an applicant for a railroad police officer job could safely perform all of the required duties of the position. The Ninth Circuit held that a request for a follow-up medical test as part of the required examination established that the employer “regarded” the applicant as disabled and that, by requiring him to pay for the additional medical information, the employer “discriminated” against the applicant on the basis of a “regarded as” disability. The questions presented are:

  1. Whether requiring an individualized medical examination as a condition of employment to determine whether a job applicant or employee can safely perform the required duties of the position establishes, in and of itself, that an employer “regards” the applicant or employee as disabled for purposes of a discrimination claim under the ADA.

  2. Whether requiring an applicant or employee to pay for a required individualized medical examination establishes that an employer has unlawfully discriminated under the ADA.

Counsel of record

For petitioner
Andrew S. Tulumello
Weil, Gotshal & Manges LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 cert-stage

Proceedings

  1. Nov 12 2019
    Petition DENIED.
  2. Oct 23 2019
    DISTRIBUTED for Conference of 11/8/2019.
  3. Oct 23 2019
    Reply of petitioner BNSF Railway Company filed. (Distributed)
  4. Oct 23 2019
    Supplemental brief of respondent Equal Employment Opportunity Commission filed. (Distributed)
  5. Oct 07 2019
    Motion of Russell Holt for leave to intervene as a respondent and to file a brief in opposition GRANTED.
  6. Oct 07 2019
    Brief of Russell Holt in opposition filed.
  7. Sep 06 2019
    Reply in support of Russell Holt's motion for leave to intervene as a respondent and to file a brief in opposition filed. (Distributed)
  8. Sep 04 2019
    Motion DISTRIBUTED for Conference of 10/1/2019.
  9. Sep 03 2019
    Response to motion from petitioner BNSF Railway Company filed. (Distributed)
  10. Aug 22 2019
    Motion for leave to intervene as a respondent and to file a brief in opposition filed by Russell Holt.
  11. Aug 08 2019
    Brief of respondent Equal Employment Opportunity Commission filed.
  12. Jul 02 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including August 8, 2019.
  13. Jun 28 2019
    Motion to extend the time to file a response from July 8, 2019 to August 8, 2019, submitted to The Clerk.
  14. May 31 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including July 8, 2019.
  15. May 28 2019
    Motion to extend the time to file a response from June 3, 2019 to July 8, 2019, submitted to The Clerk.
  16. May 03 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including June 3, 2019.
  17. May 02 2019
    Motion to extend the time to file a response from May 3, 2019 to June 3, 2019, submitted to The Clerk.
  18. Apr 03 2019
    Brief amicus curiae of Association of American Railroads filed.
  19. Apr 03 2019
    Brief amici curiae of The National Association of Manufacturers and the HR Policy Association filed.
  20. Mar 21 2019
    Motion to extend the time to file a response from April 3, 2019 to May 3, 2019, submitted to The Clerk.
  21. Mar 21 2019
    Motion to extend the time to file a response is granted and the time is extended to and including May 3, 2019.
  22. Mar 05 2019
    Blanket Consent filed by Petitioner, BNSF Railway Company.
  23. Feb 27 2018
    Petition for a writ of certiorari filed. (Response due April 3, 2019)