Washington Weighs in on Obesity Discrimination

DMEC StaffLegislative Updates

Washington Weighs in on Obesity Discrimination

By Michael A. Griffin, Patricia Anderson Pryor, & Jonathan M. Minear

Jackson Lewis P.C.

The state of Washington has weighed in on the debate as to whether obesity is a disability under disability discrimination laws. In Taylor v. Burlington Northern Railroad Holdings Inc., a case that wound its way through the courts for nine years, the United States Court of Appeals for the 9th Circuit certified this question to the Washington Supreme Court: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD]?” The Washington Supreme Court responded by holding that obesity is always an impairment under the Washington Law Against Discrimination (WLAD) because it is a “’physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Therefore, an employer who takes employment action against an individual because the employer perceives the individual to be obese, may run afoul of the WLAD.

The court determined that the WLAD is more expansive than the Americans With Disabilities Act (ADA) and expressly refused to follow the rulings of some federal courts (interpreting the ADA) which hold that obesity can be a disability only if it is caused by a separate underlying physiological disorder. Unlike the ADA, under the WLAD an impairment can constitute a “disability” regardless of whether it limits life activities, if it (a) is medically cognizable or diagnosable, (b) exists as a record or history, or (c) is perceived to exist whether or not it exists in fact. In this case, the employer perceived the individual to be disabled because it called him obese, which the court determined is a medically cognizable and diagnosable condition.

In Taylor, Casey Taylor applied for the job of electronic technician at the BNSF Railway. He received a job offer, contingent on passing a physical exam and medical history questionnaire. He met the minimum physical demands of the job’s essential functions. However, a medical exam revealed that he had a Body Mass Index of more than 40, which BNSF considered to be morbidly obese and a threshold for further screening. BNSF decided not to hire him because it could not determine if he was medically qualified for the job based on the significant health and safety risks associated with his morbid obesity and uncertain status of his knees and back. The company offered to reconsider their hiring decision if he paid for medical testing, including a sleep study, blood work, and an exercise tolerance test, which he could not afford. His only other option was to lose 10% of his weight and keep it off for six months. Instead, he sued BNSF for discrimination based on a perceived disability.

The Taylor case was a perceived disability case and as such, its holding is not as broad as some report. Although the court determined that “obesity” is always an impairment, it did not hold that accommodation is always required simply because someone is diagnosed as obese. The court correctly noted that in a failure to accommodate case, the plaintiff would need to show limitation in addition to showing an impairment. In addition, the court noted that there is a difference between obesity and merely being overweight. Obesity is a medically diagnosable disorder which, according to the court, always affects the systems of the body. The court distinguished this from a person with a high body mass index (BMI) but whose systems were not affected. The court concluded that the latter person “would not have obesity and therefore would not be covered by this opinion.”

This decision adds a new layer of protection to individuals who have obesity in the state of Washington. In order to ensure compliance, Washington employers should train their managers and human resources teams on the impact of this decision. This decision may impact (1) how pre-employment (and other) medical inquiries are handled; (2) when accommodations need to be provided; (3) whether changes to job requirements are necessary to make sure that employees are not being excluded simply because of obesity; (4) how the employer responds to claims of harassment based on an employee’s weight; and even (5) customer service training (as the ruling may be extended beyond the employment setting). As with any significant legal development like this, consulting with your employment and labor counsel would be prudent.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***