By / Karen Forner and Sarah Capelli
The Washington Supreme Court recently decided an unresolved issue of state law. Do the protections for disabled persons under the Washington Law Against Discrimination extend to obese persons? The court’s answer: yes, obesity is “always” a disability under Washington law. While not surprising, the court’s holding underscores the crucial difference between Washington and federal protections for disabled persons. Moreover, moving forward, obesity’s new classification as a disability has important implications for accommodation and disability discrimination scenarios in the workplace.
The Washington Law Against Discrimination (WLAD) and its federal counterpart, the Americans with Disabilities Act (ADA), both protect people with disabilities, but each act defines “disabled” differently. These competing distinctions are somewhat new. At one time, Washington courts – like so many state courts across the nation – relied on ADA definitions and case decisions to guide state disability law. In 2007, however, the state legislature rejected the court’s approach and adopted a broad definition of disability. In relevant part, Washington’s new definition for “disability” includes any impairment or condition that is medically cognizable or diagnosable. The federal ADA, in contrast, defines “disability” to include only an impairment or condition that “substantially limits a major life activity.” Without the ADA’s “substantially limits” qualifier, Washington’s definition is much broader than the ADA and extends to many more impairments and conditions.
Washington’s broader definition was central to the court’s decision in Taylor v. Burlington Northern Railroad Holdings, Inc. (July 11, 2019). There, Mr. Taylor received a conditional offer of employment from BNSF Railway Company (BNSF) contingent on a physical exam and medical history questionnaire. With a body mass index (BMI) of 41.3, BNSF’s chief medical officer was unable to determine if Mr. Taylor was medically qualified for the job due to “significant health and safety risks associated with extreme obesity [BMI near or above 40] and uncertain status of knees and back.” This conclusion triggered “additional screening” for Mr. Taylor, and he was given two options: 1) pay out of pocket for additional medical testing to demonstrate that he was physically capable or 2) lose 10% of his weight, keep it off for six months, and reapply. Mr. Taylor could not afford the testing, so he sued BNSF under the WLAD claiming disability discrimination because of his obesity. Pointing to the WLAD’s broad protections and distinct definition of “disability,” the Washington Supreme Court explained for the first time that obesity is a disability under Washington law and that it is “Illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”
The Ninth Circuit – the federal court that oversees federal cases in Washington and other Western states – has left the issue open for now whether the ADA definition of disability includes obesity. In Valtierra v. Medtronic (Aug. 20, 2019), an Arizona company terminated Mr. Valtierra, a morbidly obese maintenance technician after he failed to complete a series of tasks that he claimed he completed before leaving on vacation. Mr. Valtierra claimed he should not have been assigned so many tasks to complete in so little time because the employer knew he required accommodations for his weight. The lower court dismissed the case, concluding that under the ADA, obesity is not a disability and that Mr. Valtierra was not protected under the statute. On appeal, the Equal Employment Opportunity Commission (EEOC) filed a brief in support of Mr. Valtierra arguing that obesity can be a disability under the ADA and that Mr. Valtierra’s case should go to trial. The appellate court avoided the EEOC’s argument, however, by deciding the case on other grounds. It is unclear how the Ninth Circuit will resolve this question in the future. While four other circuits (with jurisdictions covering much of the nation) have already decided that obesity is not a disability under the ADA, the Ninth Circuit is known to depart from its sister circuits’ example and the EEOC’s position gives the Ninth Circuit a reasonable basis for reaching a different conclusion. Even so, at this point, no federal court has determined that obesity is a disability under the ADA.
The WLAD’s and ADA’s competing protections are confusing for employers, and liability will ultimately depend on what law (federal or state) a disgruntled employee sues under.1 Practically speaking, however, employers must conform to the law that best protects the employee. Here, that means that obesity should be treated as a protected disability, and employers should not use obesity as a basis for disqualifying an applicant. In cases where physical fitness is required for the job, employers must determine whether the applicant can properly perform the job in question with or without reasonable accommodation. Additionally, in situations where an employee’s obesity is causing performance problems, employers should initiate an interactive process to determine if the employee’s disability can be reasonably accommodated to enable the employee to perform the essential functions of the job.
These examples, however, beg the question: when is an employee overweight enough to be classified as obese? There is no bright line, and employers risk a dilemma—offend non-obese employees with extra weight by making a good faith attempt to comply with the law or open themselves to liability when employees claim they were mistreated for having a “perceived as” disability they actually do not have. Alternatively, employers also risk liability when employees claim their disability should have been “obvious” from their appearance. For now, Washington employers should proceed cautiously and approach these situations on a case-by-case basis. Perhaps future court decisions or the Washington State Human Rights Commission will issue clarifying guidance. In the meantime, employers should generally avoid making employment decisions based on an employee’s excessive weight. ■
1 Of course, for employees suing under federal law, they must first exhaust their administrative remedies by filing a charge of discrimination with the EEOC. While the EEOC applies federal law, the difference in state and federal law at the agency level may make little difference. For one reason, the EEOC recently argued before the Ninth Circuit that obesity should be covered under the ADA and it’s likely it will treat incoming charges accordingly. Moreover, the EEOC has a workshare agreement with the Washington State Human Rights Commission (WSHRC) and it often defers cases to the WSHRC who can guide claimants to include the appropriate allegations under state law.
Karen Galipeau Forner is the founder and managing member of K-Solutions Law in Bellevue, Washington. Karen represents employers in the areas of workplace safety, workers’ compensation, administrative appeals and employment law. She is a frequent presenter at continuing legal education seminars and to employer groups. Karen has over 25 years’ experience defending and resolving a wide range of workers’ compensation, WISHA and employment law matters. Prior to starting K-Solutions Law, Karen worked as senior attorney at a law rm in Seattle and for the Washington State Attorney General’s Of ce. She was the Program Advisor for the Industrial Insurance and Washington Industrial Safety and Health Act (WISHA) Discrimination Programs for more than ten years and the Program Advisor for the Workers’ Compensation Self-Insurance Program. Karen also litigated complex WISHA, Industrial Insurance, Third Party and Crime Victims Compensation Act cases. She recently served on the Washington State Bar Association Character and Fitness Board.