By Kathleen Kapusta, J.D.
Although Washington law is silent on whether and under what circumstances obesity can be considered an impairment, a federal district court determined that under the Washington Law Against Discrimination, a plaintiff alleging disability bias based on obesity must show that the obesity is caused by a physiological condition or disorder, or that the defendant perceived it as having such a cause. Because an applicant whose job offer was rescinded based on his high body mass index (BMI) showed only that the prospective employer perceived him as obese and as being prone to developing certain physiological disorders in the future, the court granted summary judgment against his disability discrimination claim. His veteran’s status discrimination claim also failed (Taylor v. Burlington Northern Railroad Holdings, Inc.
, February 17, 2016, Robart, J.).
Nearing the end of his service in the Marines, the plaintiff applied for and was conditionally offered a job as an electronic technician with a railroad. When a medical exam revealed a BMI of 41.3, the railroad’s medical officer told him he could not determine his medical qualification for the position due to significant health and safety risks associated with extreme obesity. The plaintiff was also informed that he could “permit further evaluation” of his “health status and risks” by submitting a sleep study, a medical report documenting various “cardiac risk factors,” an exercise tolerance test, hip and waist measurements performed by a physician’s office or athletic facility, and the complete VA disability determination once it became available. Alternatively, he was told he could be considered for the job if he lost 10 percent of his weight and maintained that weight loss for at least six months. He subsequently sued, asserting disability and veteran’s status discrimination claims under the WLAD.
Because there was no Washington case law on point, the court turned for guidance to the ADA and the regulations and case law interpreting it. While there is disagreement among the courts that have addressed this question, the majority have found that obesity is a disability only when it is the result of a physiological condition or disorder. Others, however, have concluded that obesity is a disability when it stems from a physiological disorder or condition, or when it is sufficiently extreme, such as when the plaintiff’s weight is (or is perceived as being) 100 percent greater than the norm. Still others have suggested that obesity discrimination claims may lie when the employer believes the plaintiff’s weight constitutes a disability.
Finding the majority position most persuasive, the court noted that the EEOC’s guidance accompanying the ADA regulations explains that “It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments,” and that “the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” Consistent with the guidance and the definition of impairment, the court noted that a majority of the courts to address this issue have held that “to constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition.”
While the plaintiff argued that the majority position predates the 2008 amendments to the ADA, neither he nor the cases he relied on persuasively articulated how the amendments altered the landscape regarding obesity under the ADA. Whether obesity is a disability turns on whether it is an impairment, and the court noted that the 2008 amendments had no effect on the definition of impairment. While the plaintiff interpreted the EEOC guidance to mean that weight is an impairment when it is outside the normal range, the court found a more sensible interpretation was that “a person’s weight can be an impairment when it is both (1) outside the ‘normal’ range and (2) the result of a physiological disorder.”
Perceived as “physiological” obesity?
As to the plaintiff’s suggestion that an employer may perceive an obese applicant as disabled if it believes the applicant’s weight constitutes an impairment, the court found that the railroad could not perceive him as disabled unless it perceived him as suffering from something that was a “physiological disorder or condition” within the meaning of the statute. If it instead perceived him as having something that was merely a characteristic under the statute, it was irrelevant that it believed such characteristic affected his bodily systems and made him prone to developing future disorders.
Believing that the Washington Supreme Court would follow the majority approach as more consistent with the statutory and regulatory language of the ADA, and that language is substantially the same in all relevant respects as corresponding language in the WLAD, the court found that the plaintiff’s claim failed. He did not show that his elevated BMI was caused by a physiological condition or disorder, or that the railroad perceived his BMI as stemming from either source.
Turning to his claim that the railroad violated the WLAD by refusing to hire him because he was a veteran, the court pointed out that the railroad knew he was a veteran when it extended a conditional offer of employment to him. Its subsequent requests for his military and VA medical records did not plausibly suggest that his veteran status motivated the hiring decision.—