Is Obesity a Disability Under Washington’s Law Against Discrimination?

Washington employers should take note of a pending case in which the Washington Supreme Court will decide whether obesity is a “disability” under Washington’s Law Against Discrimination (WLAD).  The case was recently sent to the state Supreme Court by the federal 9th Circuit Court of Appeals.

The case (Taylor v. BNSF Railway Co., No. 16-35205 (9th Cir. Sept. 17, 2018)) was brought by Casey Taylor against BNSF Railway Company.  Taylor was offered a job as an electronic technician, contingent on taking a physical exam.  The medical examiner determined that Taylor had a Body Mass Index (BMI) of 41.3, which is in the range of severely or morbidly obese.  Although Taylor met the physical qualifications for the job, BNSF withdrew the job offer based on his obesity.  Taylor sued, claiming that he was denied employment because BNSF “perceived him as disabled.”

In its opinion certifying the case, the 9th Circuit noted that Washington courts consider WLAD to be broader and more protective of employee rights than the federal Americans with Disabilities Act (ADA).  The court examined several federal court decisions that have determined that obesity is not a disability unless it’s the result of a physiological disorder.  The Equal Employment Opportunity Commission (EEOC), however, takes the position that obesity that is outside the “normal” range may be a disability even if not caused by a physiological disorder.

It is likely that Washington’s Supreme Court will follow the EEOC’s guidance and rule that obesity outside the normal range qualifies as a disability.  In the meantime, employers should make sure that any weight or BMI employment standards are based on bona fide requirements, i.e., they are job-related and consistent with business necessity.

If you have any questions about how this case or any other employment law may affect you or your business, please contact Kevin Hansen at Livengood Alskog, PLLC.

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