July 2019 – The Washington Supreme Court Extends Legal Protections of State Anti-Discrimination Laws to Obesity

“Obesity is not merely the status of being overweight. Obesity is recognized by the medical community as a primary disease” according to a majority opinion in the case of Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., case number 96335-5, authored by Washington’s Chief Justice Mary E. Fairhurst.  Furthermore, the majority held that “[b]ecause obesity qualifies as an impairment under the plain language of our statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”

The Court’s opinion, which also included a dissent from Judge Mary Isabel Yu, comes after the Ninth Circuit Court of Appeals certified the question to Washington’s Supreme Court as to whether obesity can be considered an impairment under state anti-discrimination laws.

Case Background – A High BMI Causes Employer to Rescind a Job Offer

This action stemmed from a lawsuit Mr. Taylor filed against BNSF for violating the Washington Law Against Discrimination (WLAD) after it presented him a conditional offer of employment in 2007, for a position as an electronic technician that was contingent on him passing a physical examination and medical history questionnaire. Mr. Taylor’s body mass index (BMI) was over 40, which is considered “severely” or “morbidly” obese. BNSF then referred the BMI results to its chief medical officer who ultimately could not determine whether Mr. Taylor was medically qualified for the job because of his concerns regarding the health and safety risks with Mr. Taylor’s obesity. BNSF decided not to hire Mr. Taylor because he was obese, but purportedly offered to reconsider its decision if he underwent and paid for additional medical testing, which Mr. Taylor could supposedly not afford. Finally, BNSF informed Mr. Taylor that the only other option required him to lose 10% of his weight and keep it off for six months which he did not accept.

Mr. Taylor filed the disability discrimination suit in Washington’s state courts in 2010, then subsequently, BNSF removed the case to federal court the following year. The U.S. District Court sided with BNSF and it prevailed via summary judgment in 2016, which led to Mr. Taylor’s Ninth Circuit appeal. The appeal raised an important question of Washington law: whether and when obesity qualifies as an “impairment” under the WLAD, codified at Wash. Rev. Code § 49.60.040. Because there was no controlling precedent on the question, and since the answer was determinative of the appeal, the Ninth Circuit certified it to the Washington Supreme Court.

The ADA and Current Federal Circuit Splits

The Washington majority further addressed the question and underlying issue in stating “the issue presented by this disparate treatment case is whether obesity can qualify as an impairment. It can.” The Court also confirmed that the WLAD offers broader coverage then the federal Americans with Disabilities Act (ADA).

The Court’s answer to the Ninth Circuit’s certified question comes at a time where the Federal Circuit Courts are split regarding the extent to which obesity qualifies as a disability under the ADA. The Second, Sixth, Seventh, and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability. Oppositely, the First Circuit and some district courts have come to a reciprocal conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of any underlying physiological conditions.

How Much Further Does the WLAD Go?

The majority held that under Washington’s WLAD “obesity always qualifies as an impairment under the plain language of [the RCWs that compose the WLAD] because it is a ‘physiological disorder, or condition’ that affects many of the listed body systems.” (Emphasis added). In as far as what is required for prospective plaintiffs who make disparate treatment claim, the majority further held that such “[p]laintiffs making a disparate treatment claim under the WLAD need not show that they actually had an impairment, e.g., that they actually were suffering from obesity. They need show only that their actual or potential employers perceived them to have a statutory impairment.”

As noted above, in a warning salvo aimed across the bows of Washington employers the majority also stated that “[b]ecause obesity qualifies as an impairment under the plain language of our statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.” Thus, even if a prospective worker is not diagnosed as obese, the Washington Supreme Court has now held that it is legally sufficient to support a worker’s claim that an employer perceived them as having the impairment of obesity.

The Court sides with the American Medical Association and Other Organizations

The Washington Court’s majority opinion relies in part on the American Medical Association (AMA), which has formally recognized obesity as a disease in its AMA Resolution 420, A-13 (May 16, 2013). Further, the majority cited to the AMA Resolution stating that “although obesity can be caused by life choices, it is still a disease, just as lung cancer is still a disease even though it can be caused by the choice to smoke cigarettes.” The majority also stated that additional organizations, to include the World Health Organization, the United States Food and Drug Administration, the National Institutes of Health, the Internal Revenue Service, and CIGNA, one of the largest health insurance companies, “all recognize obesity as a disease.”

The Dissent – WLAD Requires an Individualized Inquiry

Judge Yu dissented stating that the majority’s answer to the Ninth Circuit’s question could lead to unintended consequences. Specifically, the Justice opined that obesity should only be determined to be a disability “for the purposes of the WLAD when (a) the plaintiffs obesity is medically cognizable, medically diagnosable, exists as a record or history, or is perceived to exist whether or not it actually does and (b) the plaintiffs obesity impairs one or more body systems listed in RCW 49.60.040(7)(c)(i).” She further stated that the “majority’s answer to the certified questions, that obesity is always an impairment for purposes of the WLAD, ignores the need for an individualized inquiry.”

So What Impact Does The Decision Have on Washington Employers?*

It means that under Washington’s WLAD, obesity is statutorily an impairment.  Thus, employers in the state would likely benefit from a review of human resource, reasonable accommodation practices, and hiring policies, especially those that involve medical questionnaires or exams.  Also, given that obesity is now a protected class, an in-depth review of anti-discrimination rules and those against harassment in the workplace should be reviewed and revised if needed. If some or all of these tasks are outsourced to a third-party provider, employers should contact their respective vendors and inquire as to what changes have or are being implemented to ensure compliance with this change.  Once suitable reviews and revisions occur, updated policies should then be disseminated through employee handbooks or whatever medium the employer communicates through for such changes.

More Information

If you have further questions regarding this recent Washington Supreme Court decision, or what it means for employers in Washington, please do not hesitate to contact the attorneys at Wallace, Klor, Mann, Capener & Bishop, P.C.

*This article/blog entry is not to be construed as legal advice for any specific situation or employer. To inquire about the impact this decision or any other article may have on your business or an individual set of facts, please contact an attorney.