In a departure from the federal Americans with Disabilities Act (ADA) and other state anti-discrimination laws, the Washington Supreme Court (7-2) recently ruled that obesity “always” qualifies as an impairment under the Washington Law Against Discrimination (WLAD) and that “it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”

With this ruling, Washington employers are liable for any adverse hiring or employment decision because the individual is (or is perceived to be) obese. In addition, employers must make reasonable accommodations for individuals who have obesity.

Background

In 2007, Casey Taylor received a job offer with BNSF Railway Company (BNSF) as an electronic technician, contingent on successfully passing a physical exam and completion of a medical history questionnaire. The medical exam found that Taylor met the physical demands of the job, but revealed he had a body mass index (BMI) of 41.3.

BNSF told Taylor it was company policy to not hire anyone with a BMI over 35 and that he would not be hired unless he completed expensive medical testing – at his own expense – or lost 10 percent of his weight and kept it off for six months. Taylor sued BNSF three years later, alleging BNSF violated WLAD by failing to hire him due to a perceived disability of obesity.

The trial court granted summary judgment for BNSF and the plaintiff appealed the decision to the 9th Circuit Court of Appeals. The appeals court determined that whether obesity is an impairment under the WLAD was an open question of state law, certifying the question to the Washington Supreme Court./p>

Washington Supreme Court Ruling

The Washington State Supreme Court held that obesity is “always” an impairment under the WLAD because it is a “physiological disorder, or condition” affecting many bodily systems. The court’s ruling on this issue is at odds with other rulings across the country that do not find that obesity is automatically a disability under the ADA and has significant implications for Washington employers, which are highlighted below.

The court stated that an employer violates the WLAD if it refuses to hire someone because the employer perceives the applicant to have obesity and the applicant is able to perform the job. Justice Yu dissented from the majority opinion, arguing that the court should not impose a bright line rule that obesity is always an impairment, and instead allow for an individualized inquiry.

The ruling means employers must treat obesity like other disabilities, and not make any hiring or employment related decision based upon the existence (or perceived existence) of a disability.

Notably, this case involves a perceived disability and there is no discussion about the employee’s ability (or inability) to perform essential job duties because of his obesity. However, in a footnote the court states if “an employee was seeking reasonable accommodations, the employee would have to show that they actually have obesity and that the obesity met the other criteria of RCW 49.60.040(7).”

Therefore, in cases involving reasonable accommodations, plaintiffs must demonstrate their obesity has a substantially limiting effect on their ability to perform the job, be considered for the job, or access to benefits or other terms and conditions of employment, or that the employer was on notice of an impairment and engaging in job functions without an accommodation would aggravate the impairment and create a substantially limiting effect. Under the WLAD and ADA, employees and applicants must be able to perform the essential functions of the job with or without a reasonable accommodation.

Practical Implications for Employers

  • Employers cannot refuse to hire an applicant because of any actual or perceived disability, including obesity. Employers should review job descriptions and job qualifications to ensure they are not automatically screening out candidates based on BMI or other factors related to obesity. Employers with job qualification requirements tied to weight or BMI should consult with employment counsel.

  • Employers can establish and change job functions. However, job functions or physical fitness requirements should be tied to the performance of actual duties, including the ability to perform certain functions, use of required equipment, work in specialized environments, etc. Designating a weight limit without a connection to an essential job function will not comply with the court’s ruling.

  • Individuals must be qualified to perform the job they are applying for. Employers should review job descriptions to ensure they reflect the essential functions required for the role and to assist with determining whether the candidate is actually qualified for the role.

  • Employers must not take any adverse actions against an employee because the employee has (or is perceived to have) obesity. Although obesity and weight are not the same thing, they are often correlated concepts; thus, employers should take care not to discriminate in any way against an employee because of that employee’s weight, BMI, or possible obesity.

  • Employers should be consistent in enforcing standards and job requirements.

  • As with any disability, an employer must provide reasonable accommodations to an employee or applicant who has obesity, as long as the employee can perform the essential functions of the position with or without accommodation. Employers should not assume that an employee has obesity or that an employee needs an accommodation. But if an employee puts the employer on notice of the need for an accommodation, the employer must engage in an interactive process to determine what reasonable accommodations are necessary to allow the employee to perform his or her job.

Note Regarding Public Accommodations

The WLAD covers most employers in Washington. It also applies to places of public accommodation and certain other individuals and entities. Any person or employer covered by the WLAD must ensure that they do not discriminate against any individual on the basis of actual or perceived obesity. The WLAD covers most Washington employers and further applies to places of public accommodation and certain other individuals and entities. Any person or employer covered by the WLAD must ensure they do not discriminate against any individual on the basis of actual or perceived obesity.