Law protects those with obesity from discrimination,Washington Supreme Court says

OLYMPIA – Employers can’t refuse to hire someone just because he or she is obese, the state Supreme Court said Thursday.

Obesity is a condition covered by the state law against discrimination, the court said in a 7-2 decision, and can’t be used as a reason to refuse a job that the applicant is otherwise able to do.

But while obesity is protected under the law, simply being overweight isn’t, the court said.

The decision could have far-reaching effects because more than a quarter of all Washington adults – 27.7% – were estimated to be obese in a 2018 report.

The court ruled on a 12-year-legal battle between a King County man, Casey Taylor, and BNSF Railway Company, which initially offered him a job as an electronic technician then refused to hire him after a medical exam said he was obese.

When Taylor applied, he reported that he was 5-foot-7 and weighed 250 pounds, giving him a body mass index of 39.2. He was offered the job contingent on a medical exam, which listed him as 5-foot-6 and 256 pounds, for a body mass index of 41. The railroad required any applicant with an index reading over 40 to get extra medical screening, and the company told Taylor he wasn’t medically qualified for the job because of health and safety risks and possible strain on his knees and back.

BNSF officials said they’d reconsider if Taylor paid for expensive medical testing that included a sleep study, blood work and exercise tolerance. Taylor, who was unemployed, said he couldn’t afford the several thousand dollars the tests would cost. The only other option was to lose 10% of his weight and keep it off for six months, the company said.

Taylor sued in state court, saying the company was violating the state law that restricts discriminating against someone with a physical impairment.

BNSF moved the case to federal court, arguing that federal law doesn’t recognize obesity as a disability unless it is caused by a separate physiological disorder and that the federal law has been extended to cover the Washington law. The trial court agreed and dismissed the case.

Taylor appealed, and the 9th U.S. Circuit Court of Appeals said that before it could rule on the case, the Washington Supreme Court had to answer the question of whether obesity, by itself, is considered an impairment under state law, even though it isn’t under federal law.

BNSF had argued weight was not an abnormality because it is “intrinsic to all human bodies.” Taylor argued the question wasn’t whether weight was covered by the anti-discrimination law but obesity.

In Michigan, a civil rights law has prohibited weight discrimination for more than 40 years, and Massachusetts lawmakers recently introduced a bill that would make it illegal to discriminate on the basis of weight in that state.

The Washington Supreme Court said Thursday obesity “is always an impairment under the plain language of (the state law) because the medical evidence shows that it is a physiological disorder or condition that affects many of the listed body systems.”

Obesity doesn’t have to be caused by a separate disorder, like federal law requires because Washington’s disability law is broader than the federal Americans with Disability Act and gives state residents independent protections, Chief Justice Mary Fairhurst wrote.

“There is an overwhelming consensus in the medical community that obesity is a disease in and of itself,” Fairhurst wrote. “It is undisputed that Taylor did not get or keep the job in question because BNSF perceived him as obese.”

In a footnote, the majority said that merely being overweight would not automatically qualify for protection under the anti-discrimination law. Plaintiffs making disability discrimination claims must show they are obese or that an employer believes them to be.

Because the answer to the 9th Circuit’s question was yes, obesity is covered by the state anti-discrimination law, “it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”

In a dissent, Justice Mary Yu said obesity could be a physical impairment covered by the law, but wouldn’t necessarily always be. There are disagreements in the medical community on how to measure obesity, and the body mass index doesn’t distinguish weight from muscle from weight from fat.

There should be an “individualized inquiry” about whether it impairs body systems listed in the law, she said.

But that would reframe the question the federal appeals court is asking, Fairhurst noted, because there was no dispute that BNSF considered Taylor obese. The question was whether – not when – obesity is covered under the anti-discrimination law.