As we previously discussed here and here, courts are split regarding the extent to which obesity qualifies as a disability under the Americans with Disabilities Act (“ADA”). The Second, Sixth, Seventh and Eighth Circuit Courts of Appeal have held that obesity must be accompanied by an underlying physiological disorder for it to constitute a disability, whereas the First Circuit and some district courts have come to the opposite conclusion, particularly when the plaintiff presents expert testimony supporting the contention that obesity is a physical impairment, regardless of an underlying physiological condition.

The Ninth Circuit wrestled with this question in 2018 in a case brought under the Washington Law Against Discrimination (“WLAD”). Because the case involved a question of state law, the Ninth Circuit certified a question to the Washington Supreme Court to resolve whether Washington courts would conclude that obesity, standing alone, constitutes a disability under the WLAD. On July 11, 2019, the Washington Supreme Court answered the question in Taylor v. Burlington N.R.R. Inc., holding that obesity alone is, in fact, a physical impairment under the broad scope of the WLAD.

In Taylor, the plaintiff received a conditional offer of employment as an electronic technician, but the offer was contingent upon the applicant’s passing a physical examination and medical history questionnaire. The plaintiff’s body mass index (BMI) was over 40, which is considered “severely” or “morbidly” obese. The employer referred his results to its chief medical officer (CMO). The CMO determined that he could not determine whether the applicant was medically qualified for the job because of his concerns over the significant health and safety risks the applicant’s extreme obesity posed. The employer was inclined not to proceed with hiring the plaintiff, but offered to reconsider its decision if he underwent and paid for additional medical testing, which he could not afford. The employer informed the applicant that his only remaining option was to lose 10% of his weight and keep it off for six months.

The applicant sued the employer, alleging it violated the WLAD by refusing to hire him because of his perceived disability – obesity. The district court granted summary judgment to the employer holding that, under the WLAD, a plaintiff alleging disability discrimination based on obesity must show that his or her obesity is the result of an underlying physiological condition or that the defendant perceived the plaintiff’s obesity as having such a cause. During the appeal to the Ninth Circuit, the Washington Supreme Court answered the certified question posed to it by holding that “obesity always qualifies as an impairment under the plain language of [the WLAD] because it is a ‘physiological disorder, or condition’ that affects many of the listed body systems,” including, among others, the neurological, musculoskeletal, digestive, endocrine, and respiratory systems. The court relied on publications from the medical community, including the American Medical Association, and reasoned that, “although obesity can be caused by life choices, it is still a disease, just as lung cancer is still a disease even though it can be caused by the choice to smoke cigarettes.” The court opined that the Washington State legislature intended to adopt a comprehensive definition of “disability” to protect against discrimination, even broader than that under the ADA. Therefore, the court held that it is illegal for employers in Washington to refuse to hire otherwise qualified prospective employees because the employer perceives them to be obese.

Employers in Washington should consult with an attorney to ensure their employment policies and procedures comply with this new ruling. In addition, employers across the nation should remain cautious when making employment decisions involving obesity, as additional jurisdictions continue to weigh in on this issue. We will keep you apprised of new rulings on this topic.