Employment Law Daily Washington high court asked when obesity is an ‘impairment’ under WLAD
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Wednesday, September 19, 2018

Washington high court asked when obesity is an ‘impairment’ under WLAD

By Lorene D. Park, J.D.

Certifying to the Washington Supreme Court the question of whether and under what circumstances obesity is an “impairment” under the Washington Law Against Discrimination, the Ninth Circuit explained that the answer to this important question would determine the outcome of this appeal by a plaintiff whose job offer was withdrawn after he was found to be morbidly obese and refused to pay for further medical testing. The federal appeals court noted that federal courts are split on whether obesity is an impairment under the ADA and that the WLAD may provide broader coverage on that issue in any event, so it was appropriate to certify the question to the state high court (Taylor v. Burlington Northern Railroad Holdings, Inc., September 17, 2018, per curiam).

Job offer withdrawn. BNSF Railway Co. offered the plaintiff a job as an electronic technician, conditioned on his completing a medical history questionnaire and physical. BNSF’s medical examiner determined he met the physical qualifications for the job but referred him to the company’s chief medical officer because he weighed 256 pounds at a height of 5-feet, 6-inches, yielding a Body Mass Index (BMI) of 41.3. A BMI over 40 is considered “severely” or “morbidly” obese, and BNSF treats that as a “trigger” for further screening. The plaintiff was informed that the medical officer could not determine his medical qualification due to significant health and safety risks associated with extreme obesity. BNSF offered to reconsider his medical qualification if he undertook further medical testing at his own expense. When he said he couldn’t afford the costly tests, BNSF did not offer financial aid.

WLAD discrimination suit. The plaintiff sued in Washington state court for disability discrimination under the WLAD, alleging that BNSF denied him employment because it perceived him as disabled due to obesity. BNSF removed the action to federal court and the district court granted summary judgment for BNSF. The district court noted that Washington law is silent on whether and under what circumstances obesity can be considered an impairment, looked to ADA regulations and caselaw for guidance, and concluded that the plaintiff had to show the obesity was caused by a physiological condition or disorder, or that the defendant perceived it as having such a cause. In the district court’s view, the plaintiff showed only that BNSF perceived him as obese and as being prone to developing certain physiological disorders.

Failure to pay for tests. On appeal, the Ninth Circuit noted that the plaintiff had to “establish both that (1) obesity constitutes a disability under the WLAD and (2) BNSF’s withdrawal of its employment offer on account of his failure to pay for additional medical testing constitutes actionable discrimination under the WLAD.” On the second question, the appeals court pointed out that the WLAD is at least as broad as the ADA, and under the appellate court’s recent decision in EEOC v. BNSF Railway Co., it could “assume that, as under the ADA, an employer discriminates in violation of the WLAD when it withdraws a conditional offer of employment based on a prospective employee’s failure to pay for medical testing that the employer has required solely because of the prospective employee’s perceived disability or impairment.”

Is obesity an “impairment” under Washington law? As to the first question, though, the appellate court had not yet addressed whether or when obesity qualifies as a disability or impairment under the ADA, and other jurisdictions are divided on the issue. The parties disputed whether the federal decisions on obesity under the ADA were correctly decided, whether they remained good law after the 2008 ADA Amendments Act, and whether distinctions in the text and history of the WLAD show that it protects a broader range of impairments than the ADA.

In the appellate court’s view, even if it decided that the ADA treats obesity as a disability in only limited circumstances, the WLAD may well provide broader coverage. The plaintiff, for example, argued that the WLAD is broad not just in its general approach, but more specifically in its interpretation of “impairment.” He cited Clipse v. Commercial Driver Services, Inc., in which the state high court affirmed a jury verdict for a plaintiff whose employer discriminated against him based on the real and perceived side effects of prescription methadone. The Clipse court held, for the first time in Washington, that the “side effects of a prescription drug may constitute a disability” because “any mental or physical condition may be a disability.”

Certified question. With all of this in mind, and given that the outcome of the appeal turned on this important question of whether obesity is an “impairment” under Washington law, the appeals court found it appropriate to certify to the Washington Supreme Court the following question: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the Washington Law against Discrimination, Wash. Rev. Code § 49.60.040?”

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