Obesity is a complicated and sensitive issue impacting a significant segment of the American workforce. In an article for Law360, attorneys Tina Tellado and Trisha Thompson cover the problematic lack of explicit protections for obese and overweight employees in the United States, and highlight one particular case currently being disputed in court.
Though many state laws have faced weight-based discrimination challenges across the nation, currently only Michigan explicitly protects people under this class. Recently, the Ninth Circuit certified the following question to the Washington Supreme Court: "Under what circumstances, if any, does obesity qualify as an 'impairment' under the Washington Law Against Discrimination (WLAD)?"—which, along with the federal Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees or potential employees on the basis of disability. The answer to this question will not just determine whether the plaintiff in ongoing Taylor v. Burlington Railroad Holdings Inc., has a viable claim for discrimination on the basis of their weight, but it is likely to have far-reaching effects that will inform how Washington employers and employees approach obesity and other weight-based impairments in the workplace and during the prehiring process.
The Washington Supreme Court has long deferred to the Washington Human Rights Commission's (HRC) interpretations and enforcement of the WLAD. While the HRC has not directly or publicly addressed if/when obesity constitutes a disability, the authors point out that its regulations and guidance show that a physiological cause is a prerequisite to such claims for any condition. Alongside this, it appears an individual also must be able to prove how "extreme," or outside the normal range, their condition is.
Still, it is clear that due to the complexity of the issue, more analysis is necessary as briefing for the certified question is still underway.