Labor & Employment Law Daily Obesity always qualifies as an impairment under the WLAD
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Tuesday, July 16, 2019

Obesity always qualifies as an impairment under the WLAD

By Kathleen Kapusta, J.D.

Because obesity qualifies as an impairment under the state statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese, the state high court asserted.

Obesity, ruled the Washington Supreme Court in response to a question certified by the Ninth Circuit, “always qualifies as an impairment” under the plain language of the WLAD “because it is recognized by the medical community as a ‘physiological disorder, or condition’ that affects multiple body systems listed in the statute. Therefore, the court continued, if an employer refuses to hire someone because it perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates the state’s disability discrimination law. Judge Yu, dissenting, argued that the majority’s holding “ignores the need for an individualized inquiry” (Taylor v. Burlington Northern Railroad Holdings, Inc., July 11, 2019, Fairhurst, M.).

When an applicant received a job offer as an electronic technician for BNSF contingent on a physical exam, he reported his height as 5 feet 7 inches and his weight as 250 pounds, resulting in a body mass index (BMI) of 39.2. The exam, however, found his height was 5 feet 6 inches and his weight was 256 pounds, resulting in a BMI of 41.3. Because BNSF treats a BMI over 40 as a trigger for further screening, his results were referred to the railroad’s chief medical officer.

Pay for tests or lose weight. Unable to determine whether he was medically qualified for the job “due to significant health and safety risks associated with extreme obesity,” BNSF offered to reconsider if the applicant paid for expensive medical testing, including a sleep study, blood work, and an exercise tolerance test. Because he could not afford the tests, the applicant was told his only option was to lose 10 percent of his weight and keep it off for six months.

Certified to state high court. He subsequently sued the railroad, alleging it violated the Washington Law Against Discrimination by refusing to hire him because of a perceived disability. Relying on federal cases interpreting the ADA, BNSF argued that obesity is not a disability under the WLAD unless it is caused by a separate, underlying physiological disorder. The district court agreed, granting summary judgment to the railroad.

The applicant appealed to the Ninth Circuit, which concluded that whether obesity may constitute an impairment, and thus a disability, under the WLAD is an unresolved issue of state law; accordingly, it certified the question to the state high court.

Broader than the ADA. Emphasizing that the WLAD is broader than its federal counterpart, the state supreme court turned to the language of the statute, noting that disability is defined as “a sensory, mental, or physical impairment that: (i) [i]s medically cognizable or diagnosable; or (ii) [e]xists as a record or history; or (iii) [i]s perceived to exist whether or not it exists in fact.” Further, impairment includes any “physiological disorder, or condition, or cosmetic disfigurement, or anatomical loss affecting one or more” of specified body systems. After detailing the history of the WLAD and its interpretation, the court found that the state legislature intended to adopt a broad and expansive definition of disability in order to protect against discrimination and expressly rejected the idea that the ADA should be used to constrain the protections offered under the WLAD.

Obesity is an impairment. In finding that obesity can qualify as an impairment, the court noted that medical evidence shows it is a “physiological disorder, or condition.” Although “physiological” is not defined by the WLAD, Webster’s defines it as “the organic processes and phenomena of an organism or any of its parts or of a particular bodily process.”

“Even if a condition must be physiological to be an impairment, a contention that is disputed in this case, obesity would qualify because it involves both the organic process and phenomena of an organism—the excessive accumulation of fat cells,” the court wrote.

Comparing obesity to diabetes, the court explained that the “fact that obesity is often diagnosed merely by measuring weight does not mean that it is not a physiological disorder affecting body systems, just as the fact that diabetes is diagnosed merely by ‘measuring plasma glucose’ does not mean that it is not a physiological disorder affecting body systems.” Rather, obesity is a disorder involving an abnormal accumulation of fat cells that results in above average weight and its causes, as recognized by the medical community, are probably multifactorial.

Disease. The medical community also overwhelming agrees that obesity is a disease in and of itself, said the court, which further supported its finding that obesity is a physiological disorder under the WLAD. Turing again to Webster’s, the court noted that “disorder” is defined as “a derangement of function” and “an abnormal physical or mental condition.” Noting that a disease is commonly understood to fit within this definition, the court found that obesity is a physiological condition under the WLAD.

Qualifying condition. It is also a qualifying condition, said the court, observing that while the legislature did not define “condition,” the Washington State Human Rights Commission, the administrative body that administers the law, explains that “[a] condition is a ‘sensory, mental, or physical disability’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question.” And here, it was undisputed the applicant did not get or keep the job in question because BNSF perceived him as obese.

Weight. While BNSF argued that weight is not an abnormality because it is intrinsic to human bodies and is not immutable, the court pointed out that the question is not whether weight is a condition under the WLAD but whether obesity is. And here, BNSF did not just perceive the applicant as over a certain weight, it was concerned that his perceived “extreme obesity” posed significant health and safety risks, said the court.

As to amici National Association of Manufacturers’ (NAM) similar argument that obesity is not an abnormality because a large percentage of the population is overweight or obese according to BMI, the court pointed out that “even if all of these individuals were actually suffering from obesity, the WLAD tells us that a disability may be ‘temporary or permanent, common or uncommon.’” Therefore, the court explained, “abnormal” must refer to something other than statistical frequency and cannot be limited to immutable states of being. Turning again to the medical evidence, and specifically the AMA’s explanation that obesity is a “disease state including . . . abnormal energy balance[]” and ‘”abnormal endothelial function” and results in “metabolic abnormalities” “even after weight loss,” the court found that obesity is a condition within the meaning of the WLAD because it is an abnormality and BNSF’s perception that the applicant was obese was undisputedly the reason the applicant did not get or keep the job.

Bodily systems. The medical evidence, the court noted, also shows that obesity itself inherently affects one or more of the bodily systems listed in the WLAD. Moreover, complications of obesity include many other medical problems such as diabetes, sleep apnea, osteoarthritis, infertility, cancer, skin disorders, and intertriginous infections. “Because obesity is recognized by the medical community as a physiological disorder, or condition, and it affects the normal functions of several of the listed body systems, it will always meet the WLAD’s statutory definition of ‘impairment,’” the court wrote.

Stigmatizing effect. Rejecting the argument by NAM and other amici that it should not recognize obesity as an impairment because it will have a stigmatizing effect on obese individuals, the court found it “difficult to see how protection under the WLAD will produce more psychological harm than is caused by companies freely and openly refusing to hire people because of their obesity.”

Just a physical trait? BNSF also relied on the Washington Human Rights Commission’s statement in its published guide that “[p]hysical traits such as being left handed or being short are not disabilities,” arguing that because weight is a physical trait, it is not a disability under the WLAD. While it argued that nobody is described as suffering from their weight, it again conflated weight with obesity, said the court, noting that people are described as suffering from obesity. “Obesity is not a physical trait. It is a disease.”

Broader than the ADA. The court also rejected BNSF’s contention that it should follow the rulings of some federal courts interpreting the ADA and hold that obesity can be a disability only if it is caused by a separate, underlying physiological disorder. “We decline to do so. The WLAD is broader than the ADA and offers its own independent protections to Washingtonians.”

Dissent. Justice Yu, dissenting, agreed with the majority that obesity does not have to be caused by a separate physiological disorder or condition to qualify as an impairment under the WLAD and that obesity, as a physiological disorder or condition, is distinct from weight, which is a physical trait. Noting, however, that the diagnostic line between “overweight” and “obese” is a function of an individual’s weight in relationship to their height, the justice did not agree that obesity always qualifies as an impairment under the plain language of the statute.

Instead, she would reframe the certified question slightly to ask under what circumstances, if any, obesity is a disability for purposes of the WLAD. “This approach,” she argued, “avoids a per se rule that could extend WLAD protections to individuals who are not disabled and avoids the stigma of labeling all individuals over a certain height to weight ratio as impaired.”

Impact on employers. This opinion, notes Michael Droke, a Labor & Employment partner at the international law firm Dorsey & Whitney in Seattle, not only impacts employers based in Washington, but also employers who have operations there.

“While the application process of most employers likely does not include a physical exam, employers should nevertheless be mindful of employees potentially suffering from medical obesity. Employees making discrimination claims need only show that their obesity is medically cognizable, exists as a record, or is simply perceived to exist by their employer. In reasonable accommodation cases, however, employees must show that they actually suffer from obesity,” Droke says.

“Accordingly, as with other recognized disabilities, employers should maintain an interactive dialogue with employees about accommodations and ways they could perform the job. It is also important to continue training human resources professionals and supervisors regarding employees’ rights and employers’ obligations under the WLAD and federal discrimination laws,” Droke notes.

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