In Taylor v. Burlington Northern Santa Fe Railway Company, the Washington Supreme Court recently held that obesity is always an “impairment” under the Washington Law Against Discrimination (“WLAD”). The court held that the WLAD is more expansive than the Americans with Disabilities Act and expressly refused to follow some federal court decisions that found obesity to be a disability only if it is caused by a separate underlying physiological disorder.
Background:
The plaintiff, Casey Taylor, applied for an electronic technician position with BNSF Railway. BNSF offered Taylor the job, conditioned on upon him completing a medical history questionnaire and undergoing a physical exam. Taylor met the physical qualifications, but his Body Mass Index of over 40 was flagged as severely or morbidly obese. BNSF advised Taylor that his BMI required further screening. Consequently, he could either pay for further medical testing, or be reconsidered if he lost 10% of his weight and maintain it for at least six months.
Taylor sued BNSF in Washington state court, alleging disability discrimination under the WLAD. Taylor claimed that BNSF denied him employment because it perceived him as disabled due to his obesity. BNSF removed the action to federal court, which later granted summary judgment in its favor. The court applied the ADA standard and held that obesity is not a disability unless caused by a separate, underlying physiological disorder. Taylor appealed to the 9th Circuit. Because the case involved a question of state law for which no precedent existed, the 9th Circuit certified the question of when obesity may qualify as an impairment under the WLAD to the Washington State Supreme Court.
WA Supreme Court’s Holding:
The WLAD prohibits an employer from refusing to hire anyone because of the “presence of any sensory, mental, or physical disability… unless based upon a bona fide occupational qualification.” The WLAD defines a disability as a “sensory, mental or physical impairment” that is medically cognizable or diagnosable, exists as a record or history, or perceived to exist whether or not it exists in fact. An impairment includes “any physiological disorder, or condition.”
In holding that obesity is always an impairment under the plain language of the WLAD, the court relied extensively on medical evidence demonstrating that obesity is a physiological disorder or condition affecting various body systems under the statute. The court also relied on literature finding that obesity impairs normal functioning of the body and can lead to other medical problems like diabetes, sleep apnea, infertility, cancer, and osteoarthritis. The court stated, “obesity is recognized by the medical community as a primary disease.”
The Washington Human Rights Commission, an agency tasked with interpreting the WLAD, defines a “condition” under the WLAD as an abnormality. BNSF argued that weight is not an abnormality because weight is intrinsic to human bodies and is not immutable. The court disagreed and held that the proper question is whether obesity constitutes an impairment. The employer’s perception that Taylor was obese was “undisputedly” the reason he did not get or keep the job in question. The court emphasized, however, that in order to establish a disability discrimination claim, a plaintiff must still show that his or her obesity is “medically cognizable or diagnosable,” “exists as a record or history,” or “is perceived to exist whether or not it exists in fact.” On the other hand, an employee seeking a reasonable accommodation must “show that they actually have obesity.”
BNSF also argued that a large percentage of the population is obese and therefore it could not be an abnormal condition. The court also rejected this argument, noting that abnormality refers to something other than statistical frequency and could not be limited to immutable states of being.
In a dissenting opinion, Justice Yu held that courts can evaluate impairment from obesity on an individual basis and cautioned that the majority’s holding can lead to far-reaching consequences. These consequences may include offending employees, and erroneously assuming that an employee’s weight makes them disabled.
Implications for Employers:
Washington employers should take extra precaution in their hiring and employment practices to ensure a workplace free of discrimination based on actual or perceived obesity. These measures may include revising appropriate policies and hiring criteria, and training managers and supervisors on this new development.