Obesity is now a protected class in Washington

Employers need to review hiring practices and brush up on the ‘interactive process’

Law scales
VBJ File

In July, the Washington Supreme Court made a landmark decision that could affect employers across the state. For the first time, the court determined that obesity is a protected class under the Washington Law Against Discrimination (WLAD).

The background

The ruling came 12 years after King County resident Casey Taylor received a conditional employment offer as an electronic technician from BNSF Railway Company in 2007, contingent on a physical exam and medical history questionnaire. His self-reported height and weight put him at a body mass index of 39.2, but a medical exam determined he had a BMI higher than 40, considered “severely” or “morbidly” obese. The results triggered further screening at BNSF, and ultimately Taylor’s job offer became contingent upon paying for costly and extensive medical testing, or to “lose 10% of his weight and keep it off for six months,” according to the decision. It was BNSF’s policy not to hire anyone with a BMI over 35. Taylor declined the offer.

Instead, in 2010, he sued BNSF in King County Superior Court, “alleging that BNSF violated the WLAD by refusing to hire him because of a perceived disability – obesity.” BNSF removed the case to federal court and moved for summary judgement. The U.S. District Court for the Western District of Washington agreed based on federal case law. Taylor appealed to the Ninth Circuit, which “concluded that whether obesity may constitute an impairment, and thus a disability, under the WLAD is an unresolved issue of state law” and referred the case to the supreme court, according to the court decision.

In short, the Court ruled that “obesity always qualifies as an impairment under the plain language of (WLAD) because it is recognized by the medical community as a ‘physiological disorder or condition’ that affects multiple body systems listed in the statute. Therefore, if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the WLAD.”

The highlights

  • The WLAD is generally far broader than the federal Americans with Disabilities Act, and continues to be broadened through recent case law.
  • The court determined that obesity is considered by the medical community to be a primary disease and therefore it should be protected and accommodated without having to result from a separate disorder.
  • The court considered arguments that obesity could not be protected because a large percent of people are considered obese, and that weight is not immutable – meaning it can change or be changed. However the court said, “the WLAD tells us that a disability may be ‘temporary or permanent, common or uncommon.’ Therefore, ‘abnormal’ must refer to something other than statistical frequency and cannot be limited to immutable states of being.”

Next steps for employers

Washington attorney Margaret Burnham of national labor and employment law firm Fisher Phillips is watching the law closely as it rolls out. 

Burnham acknowledges this is a “delicate subject” and that she would advise her clients to approach it as such. “Talk about it from the medical perspective, talk about essential job functions, use technical terms.”

Because discrimination in the workplace and pay disparity based on weight is well documented, and Washington is “one of the most employee friendly states,” Burnham agreed the ruling was not a surprise and could have far reaching implications over time. Now is the murkiest time for employers given that there are not yet guidelines for best practices.

“Any company that uses medical testing or requires an exam will have to reevaluate that exam,” she said.

This case will affect disproportionality employers who use these kinds of exams such as construction and the trades, and she “expects to see an uptick in claims” at the types of jobs where people “sit all day.” There will be more questions, she said, about “reasonable accommodation” in the office environment.

Jean Back, Of Counsel with Schwabe Williamson & Wyatt, is the advocacy director for the Southwest Washington Society for Human Resources Management and an officer on the board of the Oregon Manufacturing Extension Partnership.

Back said because of marijuana legalization, the use of pre-employment medical exams and testing has declined in recent years among her clients.

“I don’t know that many employers who don’t hire people because their BMI is too high,” she said.

Back pointed to “the essential functions of the job” and whether the employee can perform those functions with or without reasonable accommodations. Hiring managers need to pay close attention when writing job descriptions.

“HR people are smart. They just need to do the same careful work that they do with respect to hiring,” she said, adding that small companies or those without human resources departments or consultants need to come up to speed fast on this new law.

“Obesity wasn’t a disability and now it is. That’s a pretty broad statement,” Back said. “When you’re dealing with issues that may affect WLAD you need to be careful – things are covered that you never would have assumed.”

Both attorneys stressed the competent use of the “interactive process,” and learning how to apply it in light of this new law. The interactive process is the name given to the “process that an employer utilizes in order to determine the appropriate reasonable accommodation that will enable an employee with a disability to perform the essential functions of the position,” according to a 2013 employment update by Schwabe Williamson & Wyatt.

“It’s a crucial and very important process,” Back said.

She also encouraged checking in with an attorney or a risk management specialist on the new law, and considering employment practices liability insurance. Because the WLAD is so broad, employment questions that fall under it will need to be addressed by every business owner sooner or later. 

“It’s not a matter of if,” said Back. “It’s a matter of when.”

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