On Sept. 17, 2018, the Ninth Circuit Court of Appeals certified to the Washington Supreme Court the question of whether obesity qualifies as an “impairment” and thus a “disability” under the state’s anti-discrimination law. The case, titled Casey Taylor, et al. v. Burlington Northern Railroad Holdings Inc., et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), not only affects employers within Washington state but also could have serious consequences for employers operating in the Ninth Circuit (Washington, Oregon, California, Arizona, Nevada, Idaho and Montana) and throughout the country as federal appeals courts continue to “weigh in” on whether and to what extent obese job applicants and employees are entitled to protective treatment under the law.

The case stems from a lawsuit filed by Casey Taylor in 2010 in which he accused his prospective employer of unlawfully retracting a job offer because the prospective employer perceived him as being disabled due to obesity, in violation of Washington state law. Per the court’s record, the employer initially extended Taylor an offer of employment as an electronic technician but conditioned it on completion of a medical history questionnaire and physical examination. After the employer’s medical examiner determined that Taylor met the physical qualifications for the position, the company instructed Taylor that in order to start employment, he must undergo further medical testing at his own expense or lose a significant amount of weight, since his body mass index of 41.3 placed him in the “severely” or “morbidly” obese category. When Taylor said that he lacked the ability to pay for additional testing, the employer refused to cover the cost of treatment, and the offer of employment was retracted.

The issue presented in the case – whether obesity qualifies as a disability under Washington law – is largely unsettled at the state and federal levels. Although courts in the Second, Sixth and Eighth appellate circuits have considered the issue – all in some shape or form finding that obesity is an impairment under the Americans with Disabilities Act (ADA) only if tied to or caused by a physiological cause – they have not yet reached a consensus.

Under federal law, specifically the ADA, it is unlawful to discriminate against persons with a “physical or mental impairment.” An “impairment” is defined as:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems; or

(2) Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Under state law, impairment is usually defined in a similar manner, although the precise definition may be broader or narrower depending on the jurisdiction. Ultimately, final resolution of this issue will turn on the scope and application of these provisions.

For its part, the Equal Employment Opportunity Commission (EEOC) has recognized that weight is not an impairment when it is within the “normal” range and lacks a physiological cause. That said, the EEOC takes the position that obesity may be an impairment when (1) it is outside of the normal range or (2) it occurs as a result of a physiological disorder. Unfortunately for employers, the EEOC has not yet defined what it means for weight to be within the normal range.

The Takeaway

The Washington Supreme Court’s decision in this case will directly impact how weight is treated in Washington state for purposes of analyzing disability discrimination and related accommodation laws. And, although the Washington Supreme Court decision will not directly alter the treatment of obesity under the ADA, the Ninth Circuit Court of Appeals (and possibly other jurisdictions) may consider it as a threshold opinion in resolving this important question under federal or other state laws.

Employers, particularly those operating in Washington state and throughout the Ninth Circuit, should closely watch this case. Moreover, employers should be cautious in how they approach issues of obesity in the workplace, including with regard to job position requirements, qualifications and accommodations. Finally, employers should avoid shifting pre-hire medical examination costs onto prospective applicants and employees in order to comply with EEOC v BNSF Railway Co., 902 F.3d 916 (9th Cir. 2018), a more recent Ninth Circuit opinion relating to disability.

In the event that the Washington Supreme Court and/or the Ninth Circuit side with the EEOC, employers should review and revise their employment practices and policies as needed.