Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense.
The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the Montana Human Rights Commission affirmed, and the defendant petitioned a federal court to review whether it had violated the Montana Human Rights Act by refusing to hire the applicant because of his obesity. Both parties filed motions for summary judgment, and the court certified its question to the state supreme court as that court had not previously interpreted the meaning of the term “impairment.” Because the legislature had indicated its intent that the state law be interpreted consistently with federal civil rights laws, the court majority examined the history of the Americans with Disabilities Act (ADA) and its recent amendments, cases applying the federal law and Equal Employment Opportunity Commission implementing regulations and guidance. Taken together, this authority led the court to answer the certified questions as follows: “Obesity that is not the symptom of a physiological disorder or condition may constitute a ‘physical or mental impairment’ within the meaning of Montana Code Annotated § 49-2-101(19)(a) if the individual’s weight is outside ‘normal range’ and affects ‘one or more body systems’ as defined in 29 C.F.R. § 1630.2(h)(1) (2011).”
Two dissenting justices concluded that under their interpretation of the law, obesity “cannot fall within this definition [of physical or mental impairment] when it does not occur secondarily to a physiological condition or disorder.”
A third dissenting justice found the majority’s analysis flawed because “it is premised upon post-event congressional amendments to the ADA that have not been incorporated by the Montana Legislature into the Montana Human Rights Act, rather than the federal court precedent that should guide our decision.” The events giving rise to the applicant’s complaint took place in 2008, and the ADA amendments did not take effect until January 2009. Accordingly, this justice did not believe the amendments should be given retroactive effect.