Obesity is Protected Under Washington State’s Anti-Discrimination Law

Nancy Grover

Olympia, WA (WorkersCompensation.com) – Obesity is not a justifiable reason to refuse hiring a job applicant in Washington. That state’s supreme court ruled obesity is protected under the Washington Law Against Discrimination.

Other federal courts have ruled that the Americans with Disabilities Act covers persons with obesity only if there is evidence of an underlying physiological cause. But the justices said that is not the case in Washington.

“Obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute,” the justices wrote. “Our legislature has made it clear that the WLAD is broader than its federal counterpart, the Americans with Disabilities Act of 1990 (ADA), and we decline to use federal interpretations of the ADA to constrain the protections offered by the WLAD.”

The case centered on Casey Taylor, whose conditional offer of employment by the BNFS Railway Company in 2007 was contingent on his having a physical exam and medical history questionnaire. His body mass index of more than 40 — 41.3 — was considered by the company to be a “trigger” for further screening. The company’s medical director said he could not determine whether Taylor was medically qualified for the job because of “significant health and safety risks associated with extreme obesity and uncertain status of knees and back,” according to court documents. The railway said it would reconsider hiring Taylor if he paid for “expensive medical testing,” which he could not afford. “BNSF told Taylor that it was company policy to not hire anyone who had a BMI of over 35 and that if he could not afford the testing his only option was to lose 10 percent of his weight and keep it off for six months,” the court wrote. Taylor sued.

A district court ruled against Taylor, saying that “under the WLAD, a plaintiff alleging disability discrimination on the basis of obesity must show that his or her obesity is caused by a physiological condition or disorder or that the defendant perceived the plaintiffs obesity as having such a cause.” He appealed to the Ninth Circuit, which said the issue of whether obesity constitutes an impairment and, thus, a disability, is unresolved. It sent the case to the state Supreme Court for clarification.

“We answer that obesity always qualifies as an impairment under the plain language of [state law] because it is recognized by the medical community as a ‘physiological disorder, or condition’ that affects multiple body systems listed in the statute. Therefore, if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the WLAD.” The court then sent the case back to the Ninth Circuit.

“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,” opined Michael Droke, a Washington-based employment law attorney and partner in the firm Dorsey & Whitney. “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.

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