Washington’s highest court has ruled that obesity is always an “impairment” under Washington’s Law Against Discrimination (WLAD), regardless of whether obesity is related to some other medical condition. Accordingly, treating job applicants or employees adversely based on their actual or perceived obesity is unlawful disability discrimination unless the obesity conflicts with a bona fide occupational qualification or prevents the worker from properly performing the job. The court did not define obesity, however, and did not address whether an employer’s knowledge of an individual’s weight or body mass index alone can trigger a duty to consider reasonable accommodation.

“Disability” Under the WLAD

The WLAD prohibits employers from discriminating against applicants or employees based on a “disability.” A “disability” is defined as the presence of a sensory, mental, or physical “impairment,” regardless whether it limits life activities, that either is medically cognizable or diagnosable, exists as a record or history, or is perceived to exist whether or not it exists in fact. An “impairment” includes any physiological disorder or condition affecting certain bodily systems listed in the statute.  In this case, the parties disputed whether obesity, standing alone, qualified as an “impairment.”

The Washington Supreme Court’s Decision Regarding Obesity

In Casey Taylor v. Burlington Northern Santa Fe Railway Company, an unsuccessful job applicant brought an action for disability discrimination under the WLAD. The employer to which he had applied had revoked an offer of employment after its pre-employment medical exam flagged him for additional medical testing at his expense. This occurred because his body mass index (BMI), defined as the ratio of weight to height, classified him as morbidly obese, which the employer told the applicant raised significant health and safety risks.

The trial court dismissed the applicant’s claim on the basis that the plaintiff had not shown that his obesity was caused by a physiological condition or disorder, or that the employer perceived the plaintiff’s obesity as having such a cause. The U.S. Court of Appeals for the Ninth Circuit certified the question to the Washington Supreme Court of when, if ever, obesity is an impairment under state law.

The Washington Supreme Court answered this question in the applicant’s favor. It held that obesity is always an impairment (and a protected disability) because obesity is both a “condition” and a “disorder” affecting various bodily systems. Although the court acknowledged that obesity might not be a protected disability under the federal Americans with Disabilities Act, the WLAD’s protections exceeded those under federal law.

Employers in Washington should consider the limitations and ramifications of the court’s opinion.

The Court’s Holding is Limited to Obesity and Does Not Protect the Mere Status of Being Overweight

In holding that the WLAD protects obesity, the court stated that the mere status of being overweight is distinct and does not warrant protection under the WLAD, absent other factors. Thus, a plaintiff claiming disability discrimination based on his weight might seek to prove that the defendant believed that the employee was obese (as the applicant in this particular appeal claimed). Other cases, however, and particularly those involving a claim of failure to provide reasonable accommodation, will require that the plaintiff prove the existence of an impairment that is medically cognizable or diagnosable.

The court’s distinction leaves courts and employers the difficult task in reasonable accommodation cases to determine when an employee with a high body mass index is actually obese, not merely perceived as such. The court stated that BMI alone cannot determine obesity, and that individuals with high BMI are not necessarily protected as disabled. In her dissent, Justice Mary Yu reasoned that the WLAD requires a showing of actual impairment. While the majority rejected this requirement to prove discrimination based on a perceived disability, Justice Yu’s dissent may prove prescient as to the showing the court will require in reasonable accommodation cases.

Guidance for Employers

Washington employers should be mindful in their hiring and employment practices to avoid discrimination or retaliation based on obesity. Certain policy changes may warrant consideration:

• Consider instructing hiring staff not to inquire into the nature of an applicant’s weight, or otherwise ask about its cause or effects. But employers may be able to maintain height and/or weight cutoffs when size alone bears upon the applicant’s ability to perform the job duties (such as a need to access confined spaces), distinct from concerns about the employee’s health.

• Consider training managers to be prepared to offer obese employees reasonable accommodations as they would other employees with disabilities, absent an undue hardship on the employer. As the dissent in Taylor notes, this may place some employers in an uncomfortable situation. By seeking to accommodate, the employer may risk offending employees by assuming their weight renders them disabled, or may face liability from employees who believed their disability was obvious. Employers may wish to consider adopting policies stating that the employer will not consider any person disabled due to weight alone but inviting employees to request reasonable accommodations if they wish.

• Employers should maintain workplaces free of harassment or discrimination based on actual or perceived obesity. This may require retraining to ensure that employees know that obesity is a status protected from harassment by state law. To avoid further stigmatizing obese persons, the employer may frame this message as focused on the dignity of all employees.

• Employers should consider training customer-facing staff not to discriminate against overweight patrons. As the dissent in Taylor noted, nothing in the court’s opinion limits its application to the employment context, thus raising the question whether this holding will apply to public accommodations as well.