Washington State Employers Beware, Obesity Can be a Disability

It is illegal to refuse to hire qualified potential employees because the employer perceives them to be obese, the Washington Supreme Court has ruled. After a federal court in Seattle dismissed the case, the 9th Circuit Court of Appeals had asked Washington’s highest court to resolve the issue because it involved a matter of state law. The court said in its decision that obesity is not merely the status of being overweight and that it always qualifies as an impairment under the Washington Law Against Discrimination (WLAD). It said the medical community recognizes obesity as a “physiological disorder or condition” that affects multiple body systems. The court also noted that the American Medical Association recognized obesity as a disease in 2013. BNSF Railway Company had given Casey Taylor a conditional offer of employment as an electronics technician contingent on a physical exam and medical history questionnaire. The physical exam found Taylor met the minimum physical demands of the job. However, a medical exam revealed that Taylor was 5 feet 6 inches and his weight was 256 pounds, resulting in his having a body mass index (BMI) of 41.3. A BMI of over 40 is considered “morbidly obese” and BSNF treats it as a trigger for further screening. The company withdrew the offer, claiming it was company policy not to hire anyone who had a BMI over 35. However, BSNF said that it would reconsider if Taylor could lose 10 percent of his weight and keep it off for six months or if he agreed to pay for more medical testing, including a sleep study, blood work, and an exercise tolerance test. Taylor sued BSNF for violating the WLAD by refusing to hire him because of a perceived disability. In its defense, the employer claimed it was concerned Taylor’s “extreme obesity” posed significant health and safety risks. It also argued that because weight is a physical trait, it is not a disability. But the Washington Supreme Court disagreed, noting that obesity is not a physical trait but rather a disease. Earlier this month, the Chicago-based 7th Circuit Court of Appeals ruled that the Americans with Disabilities Act (ADA) did not protect an obese bus driver whose employer refused to let him return to work. While that case turned on the ADA rather than state law, the appellate court did note that obesity could be an ADA impairment if it was the result of an “underlying physiological disorder or condition.”