Taylor v. Burlington N. R.R. Holdings, Inc.
Taylor v. Burlington N. R.R. Holdings, Inc.
Opinion of the Court
*614*608¶1 The Washington Law Against Discrimination (WLAD) generally prohibits employers from discriminating against an employee because the employee has a disability. RCW 49.60.180. An employee has a disability if they have an "impairment" that "[i]s medically cognizable or diagnosable," "[e]xists as a record or history," or "[i]s perceived to exist whether or not it exists in fact." RCW 49.60.040(7)(a). The United States Court of Appeals for the Ninth Circuit certified the following question to this court: "Under *615what circumstances, if any, does obesity qualify as an 'impairment' under the [WLAD, RCW] 49.60.040 ?" Order Certifying Question to Wash. Supreme Ct., Taylor v. Burlington N. R.R. Holdings, Inc.,
I. FACTS AND PROCEDURAL HISTORY
¶2 In 2007, Casey Taylor received a conditional offer of employment as an electronic technician for BNSF Railway Company *609(BNSF). The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor "[m]eets minimum physical demands of the essential functions of Electronic Technician." 2 Excerpts of Record (ER) at 287. Taylor self-reported his height as 5 feet 7 inches and his weight as 250 pounds, resulting in a body mass index (BMI) of 39.2. However, a medical exam found that Taylor's height was 5 feet 6 inches and his weight was 256 pounds, resulting in a BMI of 41.3. Id. at 290. "A BMI over 40 is considered 'severely' or 'morbidly' obese, and BNSF treats a BMI over 40 as a 'trigger' for further screening in the employment process." Taylor v. Burlington N. R.R. Holdings, Inc.,
¶3 In 2010, Taylor sued BNSF and Burlington Northern Railroad Holdings Inc.
¶4 Taylor timely appealed to the Ninth Circuit. That court concluded that whether obesity may constitute an impairment, and thus a disability, under the WLAD is an unresolved issue of state law and certified the question to this court. Taylor,
*617II. ANALYSIS
¶5 We hold that obesity is always an impairment under the plain language of RCW 49.60.040(7)(c)(i) because the medical evidence shows that it is a "physiological disorder, or condition" that affects many of the listed body systems. Obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute. Our legislature has made it clear that the WLAD is broader than its federal counterpart, the Americans with Disabilities Act of 1990 (ADA),
A. Standard of review
¶6 The certified question asks us to determine whether obesity can qualify as an impairment under RCW 49.60.040. Statutory interpretation "is a question of law reviewed de novo." State v. James-Buhl,
*610(quoting State v. Engel,
*618B. Obesity is an impairment under the WLAD
1. The statute
¶7 As this is a question of statutory interpretation, we look first to the text of our statute. The WLAD makes it "an unfair practice for any employer ... [t]o refuse to hire any person because of ... the presence of any sensory, mental, or physical disability ... unless based upon a bona fide occupational qualification." RCW 49.60.180(1). The statute provides that it is not discrimination to refuse to hire a person whose disability "prevents the proper performance of the particular worker involved."
¶8 "Impairment" includes, but is not limited to:
(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
(ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
RCW 49.60.040(7)(c). The parties in this case debate whether obesity is a "physiological disorder, or condition" under this definition.
*6192. The history of the statute and its interpretation
¶9 This is not the first time that we have been asked to interpret this statute, and the history of this statute provides insight into our legislature's intent in adopting it. The original version of the WLAD did not define the term "disability." See Hale v. Wellpinit Sch. Dist. No. 49,
¶10 In 2000, this court wrestled with how to apply HRC's definition in reasonable accommodation cases. Pulcino v. Fed. Express Corp.,
*611
¶11 Six years later, this court rejected the HRC's definition of "disability" altogether and instead held that the ADA's definition applies to all disability discrimination actions brought under the WLAD. McClarty v. Totem Elec.,
¶12 Justice Owens dissented, explaining that the legislature had known since 1990 that the WLAD's definition of "disability" was broader than the ADA's definition and had *621never chosen to amend the WLAD to overrule the HRC's interpretation. See id. at 244,
¶13 The legislature disagreed with the definition adopted by the majority in McClarty. It expressly found "that the supreme court, in its opinion in McClarty v. Totem Electric, failed to recognize that the Law Against Discrimination affords to state residents protections that are wholly independent of those afforded by the [ADA], and that the law against discrimination has provided such protections for many years prior to passage of the federal act." LAWS of 2007, ch. 317, § 1 (citation omitted). The legislature chose to define "disability" broadly as "the presence of a sensory, mental, or physical impairment," even if it does not limit life activities, and explained that an " 'impairment' includes, but is not limited to ... [a]ny physiological disorder, or condition ... affecting one or more of the [listed] body systems." RCW 49.60.040(7)(a), (c)(i).
¶14 The above history provides two crucial insights into legislative intent. First, the legislature intended to adopt a broad and expansive definition of "disability" in order to protect against discrimination. Second, the legislature has *622expressly rejected the idea that the ADA should be used to constrain the protections offered under the WLAD. *6123. Obesity is an impairment under the plain language of the WLAD
¶15 In order to prevail in a disparate treatment case like this one, a plaintiff need show only that the employer perceived the employee as having an "impairment."
¶16 As explained above, a "disability" under the WLAD is defined as "a sensory, mental, or physical impairment that: (i) [i]s medically cognizable or diagnosable; or (ii) [e]xists as a record or history; or (iii) [i]s perceived to exist whether or not it exists in fact." RCW 49.60.040(7)(a). Because there is no question here that BNSF perceived Taylor as having "extreme obesity," 2 ER at 147, the issue presented by this disparate treatment case is whether *623obesity can qualify as an impairment.
(a) Obesity is a physiological disorder, or condition
¶17 First, the medical evidence shows that obesity is a "physiological disorder, or condition" under RCW 49.60.040(7)(c)(i).
¶18 "Physiological" is not defined by the statute, but Webster's defines "physiology" as "the organic processes and phenomena of an organism or any of its parts or of a particular bodily process." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1707 (2002). Even if a condition must be physiological to be an impairment, a contention that is disputed in this case, obesity would qualify because it involves both the organic process and phenomena of an organism-the excessive accumulation of fat cells.
¶19 Obesity is not only physiological; it is also recognized as a disorder. The Merck Manual of Diagnosis and Therapy lists "obesity" under section 1, "Nutritional Disorders." THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 19 (Robert S. Porter et al. eds., 20th ed. 2018) (hereinafter MERCK MANUAL ).
¶20 Although obesity is ultimately the result of "a long-standing imbalance between energy intake and energy expenditure," the medical community has recognized that the "[c]auses of obesity are probably multifactorial and include genetic predisposition." Id. at 19. A predisposition toward obesity can be caused by "endocrine disruptors (eg [sic], bisphenol A [BPA] ), gut microbiome, sleep/wake cycles, and environmental factors." Id. There can sometimes be underlying physiological disorders that contribute to obesity, such as tumors, Cushing syndrome, hypothyroidism, or eating disorders, but obesity may also occur in people without these other disorders. Genetic factors, prenatal maternal obesity or smoking, and intrauterine growth restriction can all contribute to the development of obesity. Id. at 20. "Heritability of BMI is about 66 [percent]." Id. at 19.
¶21 There is an overwhelming consensus in the medical community that obesity is a disease in and of itself. See Amici Curiae Br. of Obesity Action Coal. (OAC) & Disability Rights Wash. (DRW) in Supp. of Appellants at 7-13. The American Association of Clinical Endocrinologists (AACE) published a position statement on obesity in 2012 "strongly assert[ing] that obesity is a primary disease." Jeffrey I. Mechanick et al., American Association of Clinical Endocrinologists' Position Statement on Obesity and Obesity Medicine, 18 ENDOCRINE PRAC. 642, 644 (2012) (hereinafter AACE Position Statement ). The AACE rejected the argument that *625obesity is merely "a quantitative excess of body fat," explaining instead that "obesity is an altered physiological and metabolic state, with environmental, genetic, and hormonal determinants, which results in increased morbidity and mortality." Id. (emphasis added). The American Society of Metabolic and Bariatric Surgery agrees, stating that obesity is "a multifactorial disease with a strong genetic component" and that a number of "hormonal, metabolic, psychological, cultural and behavioral factors ... promote fat accumulation and weight gain." Disease of Obesity, AM. SOC'Y FOR METABOLIC & BARIATRIC SURGERY , https://asmbs.org/patients/disease-of-obesity [https://perma.cc/2KPT-3NTU].
¶22 In 2013, the American Medical Association (AMA) also recognized obesity as a disease. AMA Resolution 420, A-13 (May 16, 2013) (hereinafter AMA Resolution). The AMA has specific criteria for labeling something a disease-"1) an impairment of the normal functioning of some aspect of the body; 2) characteristic signs or symptoms; and 3) harm or morbidity." Id. The AMA found that "there is now an overabundance of clinical evidence to identify obesity as a multi-metabolic and hormonal disease state including impaired functioning of appetite dysregulation, abnormal energy balance[ ], endocrine dysfunction including elevated leptin levels and insulin resistance, infertility, dysregulated adipokine signaling, abnormal endothelial function and blood pressure elevation, nonalcoholic fatty liver disease, dyslipidemia, and systemic and adipose tissue inflammation." Id. The resolution further explained that "[o]besity has characteristic signs and symptoms including the increase in body fat and symptoms pertaining to the accumulation of body fat, such as joint pain, immobility, sleep apnea, and low self-esteem." Id. This resolution was introduced by the AACE, the American College of Cardiology, the Endocrine Society, the American Society for Reproductive Medicine, the Society for Cardiovascular Angiography and Interventions, the American Urological Association, and the American College of Surgeons. Id. The AMA noted that the *626World Health Organization, the United States Food and Drug Administration, the National Institutes of Health, the Internal Revenue Service, and one of the largest health insurance companies, CIGNA, all recognize obesity as a disease. Id. The AMA explained that although obesity can be caused by life choices, it is still a disease, just as lung cancer is still a disease even though it can be caused by the choice to smoke cigarettes. Id. Moreover, even if *614obese patients successfully lose weight, "hormonal and metabolic abnormalities" can remain. Id.
¶23 The recognition of obesity as a disease further supports our finding that obesity is a physiological disorder under the statute. The WLAD does not define "disorder" but Webster's defines "disorder" as "a derangement of function" and "an abnormal physical or mental condition." WEBSTER'S , supra, at 652. A disease is commonly understood to fit within this definition. See AMA Resolution, supra (describing obesity as a disease involving "dysregulation" and "dysfunction" of various body systems and "abnormal" functioning of the body). Therefore, obesity is a physiological disorder under the WLAD.
¶24 Obesity is also a qualifying condition. The legislature also did not provide a definition of "condition," but the HRC did. According to WAC 162-22-020(2)(c), "[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question." Stated another way, "for enforcement purposes, a person will be considered to be disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal." Id.
*627¶25 The definition promulgated by the HRC is "entitled to be given great weight as it is the construction of the statute by the administrative body whose duty it is to administer its terms. Phillips v. City of Seattle,
¶26 The Court of Appeals has also adopted a broad definition of the word "condition" in this context. See Clipse v. Commercial Driver Servs., Inc.,
¶27 BNSF argues that "[w]eight is not 'an abnormality' " because weight is intrinsic to human bodies and is not immutable. Br. of Appellees on Certified Question at 26-27.
*628However, Taylor correctly points out that the question before us is not whether weight is a condition under the WLAD, but whether obesity is. BNSF did not just perceive Taylor as over a certain weight. Instead, it was concerned that his perceived "extreme obesity" posed significant health and safety risks. 2 ER at 147. As discussed above, obesity is a medical condition that not all humans have. See also AACE Position Statement, supra, at 644 (explaining that obesity is a disease and *615is also commonly referred to as a " 'condition' ")
¶28 Amici National Association of Manufacturers (NAM) et al. make a similar argument, stating that obesity is not an "abnormality" because a large percentage of the population is overweight or obese according to BML See Br. of Amici Curiae NAM et al. at 6 (explaining that in 2016, 29 percent of adult Washingtonians were obese according to BMI). However, even if all of these individuals were actually suffering from obesity, the WLAD tells us that a disability may be "temporary or permanent, common or uncommon." RCW 49.60.040(7)(b). Therefore, "abnormal" must refer to something other than statistical frequency and cannot be limited to immutable states of being.
¶29 Although the word "abnormal" is not defined by the HRC, the medical evidence shows that obesity is an abnormal condition. The AMA explains that obesity is a "disease state including ... abnormal energy balance[ ]" and "abnormal endothelial function" and results in "metabolic abnormalities " even after weight loss. AMA Resolution, supra (emphasis added). Therefore, obesity is a condition within the meaning of WAC 162-22-020(2) because it is an abnormality and BNSF's perception that Taylor was obese was undisputedly the reason that Taylor did not get or keep the job in question.
¶30 Therefore, obesity is a "physiological disorder, or condition" under RCW 49.60.040(7)(c)(ii).
*629(b) Obesity affects several of the statutorily listed body systems
¶31 Second, the medical evidence shows that obesity is not merely associated with other health problems but, instead, that obesity itself inherently affects one or more of the body systems listed in RCW 49.60.040(7)(c)(i). These body systems are "[n]eurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine." RCW 49.60.040(7)(c)(i). Amici OAC and DRW describe in detail how obesity itself affects the cardiovascular or circulatory systems, the musculosketal system, the lymphatic system, and the endocrine system:
1. Obesity affects the "cardiovascular" or "circulatory" system. Increased adipose tissue has a direct impact on heart structure and function because it releases proteins that cause heart inflammation; increases total blood volume and enlarges portions of the heart; and deposits fat directly onto the heart, causing it increased strain.
2. Obesity also impacts the "musculoskeletal" system as the mass inherently associated with increased body fat places increased stress on the joints - in particular, the weight born by the knees - which causes cartilage degradation and leads to osteoarthritis.
3. Obesity affects the "lymphatic" system. Studies show that increased adipose tissue impairs the flow of lymphatic fluid by compressing and damaging lymphatic vessels and thus leading to lymphedema.
4. Obesity also affects the "endocrine" system because adipose tissue secretes hormones that regulate metabolism, contributing to insulin resistance and ultimately diabetes.
Br. of OAC & DRW at 18-19 (footnotes omitted) (citing published medical studies); see also id. at 3-5 (explaining other physical effects of obesity and citing studies). The AMA expressly found that obesity impairs normal functioning *630of the body. AMA Resolution, supra. In addition, complications of obesity include many other medical problems, such as diabetes, sleep apnea, osteoarthritis, infertility, cancer, skin disorders, and intertriginous infections. MERCK MANUAL , supra, at 20. Because obesity is recognized by the medical community as a physiological disorder, or condition, and it affects the normal functions of several of the listed body systems, it will always meet the WLAD's statutory definition of "impairment." See RCW 49.60.040(7)(c).
¶32 Amici NAM et al. argue that we should not recognize obesity as an impairment because it will have a stigmatizing effect on obese individuals. See Br. of Amici Curiae NAM et al. at 13-15. However, in this case, BNSF told Taylor that it would not hire him because it perceived him as having "extreme obesity," and he could not afford supplemental medical testing. 2 ER at 147. It is difficult to see how protection under the WLAD will produce more psychological harm than is caused by companies freely and openly refusing to hire people because of their obesity. The Merck Manual recognizes that "[o]besity leads to social, economic, and psychologic problems as a result of prejudice, discrimination, poor body image, and low self-esteem. For example, people may be underemployed or unemployed." MERCK MANUAL , supra, at 20. We construe the definition of "impairment" in order to effectuate the purposes of the WLAD-remedying and preventing this kind of discrimination. See Kumar v. Gate Gourmet, Inc.,
¶33 BNSF also relies on the HRC's published "Frequently Asked Questions and Answers" to argue that obesity is not a disability. See WASH. STATE HUMAN RIGHTS COMM'N, GUIDE TO DISABILITY AND WASHINGTON STATE NONDISCRIMINATION LAWS: FREQUENTLY ASKED QUESTIONS AND ANSWERS (2012). According to the HRC:
In Washington State, the Legislature has enacted a broad definition of disability that increases protections for persons with medical, psychological, and other impairments. The Washington definition is different than the definition found in the Americans with Disabilities Act ... -it is broader, covers more medical conditions, and is not restricted to a condition that substantially limits a major life activity.
Id. at 2. However, this guide also explains that "[p]hysical traits such as being left handed or being short are not disabilities. (Though there are medical and genetic conditions that cause extreme short stature that are disabilities.)" Id. at 4. BNSF argues that because weight is a physical trait, it is not a disability under the WLAD. According to BNSF, "Nobody is described as 'suffering from' their ... weight," Br. of Appellees on Certified Question at 7. Again, BNSF confuses the question before us, conflating "weight" with "obesity."
¶34 The evidence presented to us shows that obesity is always an impairment under the WLAD because it is a "physiological disorder, or condition ... affecting one or more of the [listed] body systems." See RCW 49.60.040(7)(c)(i). BNSF argues that we should follow the rulings of some federal courts interpreting the ADA and hold that *617obesity can be a disability only if it is caused by a separate, underlying physiological disorder. We decline to do so. The WLAD is broader than the ADA and offers its own independent protections to Washingtonians.
III. CONCLUSION
¶35 We answer the certified question as follows-obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is a "physiological disorder, or condition" that affects many of the listed body systems. Plaintiffs making a disparate treatment claim under the WLAD need not show that they actually had an impairment, e.g., that they actually were suffering from obesity. They need show only that their actual or potential employers perceived them to have a statutory impairment. RCW 49.60.040(7)(a)(iii). Because obesity qualifies as an impairment under the plain language of our statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese. See RCW 49.60.180.
WE CONCUR:
Johnson, J.
Madsen, J.
Owens, J.
Stephens, J.
Wiggins, J.
González, J.
If instead, 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)(d).
We refer to both the railway company and the holding company collectively as "BNSF."
Unlike in a reasonable accommodation case, the plaintiff in a disparate treatment case need not show that they are actually impaired or that the impairment has any actual or potential substantially limiting effect. See RCW 49.60.040(7)(d). In a reasonable accommodation case, the plaintiff would have to show that they actually had obesity and that their obesity had "a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment" or that the plaintiff had "put the employer on notice of the existence of an impairment, and medical documentation ... establish[ed] a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect."
The dissent would reframe the question to ask when obesity is a disability under the WLAD, but the parties in this case do not dispute that BNSF perceived Taylor to have obesity. The only question before us is whether obesity can qualify as an impairment under RCW 49.60.040(7)(c)(i).
The Merck Manual is a "reliable and trusted source for medical information." Krystal Bullers, Merck Manuals, 104 J. Med. Libr. Ass'n 369, 371 (2016); see also State v. Cissne,
We decided that this definition was unworkable in reasonable accommodation cases, Pulcino,
The dissent's suggestion that a person can have obesity without it affecting any of the listed body systems is inconsistent with the medical science. Because obesity always affects systems of the body, a person who had a high BMI but whose body systems were not affected would not have obesity and therefore would not be covered by this opinion.
Merely being overweight is not an impairment under the WLAD, but obesity is. Therefore, plaintiffs making disability discrimination claims must show that their obesity "[i]s medically cognizable or diagnosable," "[e]xists as a record or history," or "[i]s perceived to exist whether or not it exists in fact." RCW 49.60.040(7)(a). In reasonable accommodation cases, plaintiffs must show that they actually have obesity. RCW 49.60.040(7)(d).
Dissenting Opinion
*633¶36 I agree with the majority that obesity does not have to be caused by a separate physiological disorder or condition to qualify as an impairment pursuant to the RCW 49.60.040(7)(c)(i). Majority at 609-10. I also agree that obesity, as a physiological disorder or condition, is distinct from weight, which is a physical trait. See id. at 616-17. And the majority is correct that "[o]besity is not merely the status of being overweight," id. at 612, and that there is growing consensus in the medical community that obesity is itself a disease, id. at 613. But because the diagnostic line between "overweight" and "obese" is a function of an individual's weight in relationship to their height, I do not agree that "obesity always qualifies as an impairment under the plain language of the RCW 49.60.040(7)(c)(i)." Id. at 608.
¶37 I would reframe the certified question slightly to ask under what circumstances, if any, obesity is a disability for purposes of the Washington Law Against Discrimination (WLAD), ch. 49.60 RCW. According to the plain language of the statute, obesity is a disability if (i) the plaintiff's obesity is medically cognizable, medically diagnosable, exists as a record or history, or is perceived to exist whether or not it actually does, RCW 49.60.040(7)(a), and (ii) the plaintiff's obesity impairs one or more body systems listed in RCW 49.60.040(7)(c)(i). This approach avoids a per se rule that could extend WLAD protections to individuals who are not disabled and avoids the stigma of labeling all individuals over a certain height to weight ratio as impaired.
A. Defining obesity
¶38 The majority states that obesity involves "an abnormal accumulation of fat cells." Id. at 613. But, as the majority explains, obesity as a disease is more than " 'a quantitative excess of body fat.' " Id. at 613 (quoting Jeffrey I. Mechanick et al., American Association of Clinical Endocrinologists' Position Statement on Obesity and Obesity Medicine, 18 ENDOCRINE PRAC. 642, 644 (2012)). Instead, *634" 'obesity is an altered physiological and metabolic state, with environmental, genetic, and hormonal determinants, which results in increased morbidity and mortality.' " Id. (emphasis omitted) (quoting Mechanick et ah, supra, at 644). This begs the question: At what point does an excess of body fat make an individual "obese"?
¶41 To be sure, medical practitioners are cautioned to not rely solely on BMI and to look to other factors when diagnosing obesity. But those factors do not have the same type of hard and fast classifications that BMI does and often include looking at the effect on other systems. See THE MERCK MANUAL , supra, at 20-21.
B. Impairment should be evaluated individually
¶42 Whether obesity is defined as BMI over 30, an abnormal excess in fat cells, or some other measure, the WLAD requires a showing that one or more specified body systems is actually impaired. RCW 49.60.040(7)(c)(i). In many cases, this requirement will be met by the diagnosis or perception itself.
¶43 According to amici, BMI is "only the first step in diagnosing obesity" and "misclassification is somewhat common." Amici Curiae Br. of Obesity Action Coal. & Disability Rights Wash, in Supp. of Appellants at 5. In addition to body composition, "clinical effects of obesity on health, feeling, and functioning are considered" as part of a complete diagnosis. Id. at 6. Thus, a medical diagnosis of obesity may already include a showing that a particular body system is affected. If not, the plaintiff would be required to provide additional evidence to meet the requirements of the WLAD. See generally Henry C. Lukaski, *636Commentary: Body Mass Index persists as a Sensible Beginning to Comprehensive Risk Assessment, 43 INT'L J. EPIDEMIOLOGY 669, 670 (2014) (discussing the "metabolically healthy obese").
¶44 In this case, Casey Taylor was diagnosed as extremely obese by BNSF's physician based on his BMI. 2 Excerpts of Record (ER) at 147. His obesity was perceived to affect "other health conditions," including sleep apnea and diabetes. Id. at 164. Sleep apnea affects the respiratory system, and diabetes affects the endocrine system. Thus, Taylor's obesity was (a) medically diagnosed or perceived and (b) perceived to affect at least one or more body systems.
*619C. Implications beyond employment
¶45 We typically provide narrow answers to certified questions from federal courts. See, e.g., Hill v. Xerox Bus. Servs., LLC,
¶46 As an example, RCW 49.60.215 makes it an unfair practice "to commit an act which directly or indirectly results in any distinction, restriction, or discrimination ... in any place of public resort, accommodation, assemblage, or amusement" because of the presence of a disability. A place of public accommodation must reasonably accommodate "the known physical, sensory, or mental limitations of a person with a disability." WAC 162-26-080. But unlike reasonable accommodations in the employment context, no showing of actual impairment or substantially limiting effect is required. See majority at 612 n.4; see also RCW 49.60.040(7)(d). In guidance to operators of places of public accommodation, the Human Rights Commission explains that a "disability may be obvious, such as a person who uses a wheelchair" or that a person "may need to inform you of *637the disability." WASH. STATE HUMAN RIGHTS COMM'N, GUIDE TO DISABILITY AND WASHINGTON STATE NONDISCRIMINATION LAWS: FREQUENTLY ASKED QUESTIONS AND ANSWERS 13 (2012). An operator making a good faith attempt to comply with the law risks offending some patrons by assuming they are disabled because of their weight or risks opening themselves up to liability to patrons who claim their disability should have been "obvious" from their appearance. 11 am concerned about the uncertainty and the far-reaching impact of the court's decision.
D. Conclusion
¶47 Obesity is a disability for purposes of the WLAD when (a) the plaintiff's obesity is medically cognizable, medically diagnosable, exists as a record or history, or is perceived to exist whether or not it actually does and (b) the plaintiff's obesity impairs one or more body systems listed in RCW 49.60.040(7)(c)(i). The majority's answer to the certified questions, that obesity is always an impairment for purposes of the WLAD, ignores the need for an individualized inquiry. Therefore, I respectfully dissent.
Gordon McCloud, J.
The parties and amici have cited to dozens of scientific journals and scholarly articles to aid our understanding of obesity and its effects on the body. One thing is clear from the literature-there is disagreement in the medical community on how to measure obesity and what effects it has on the various systems of the body. Courts can evaluate impairment from obesity on an individual basis. But the legislature is the proper body to evaluate all of the available information and make a policy decision on whether obesity is a per se impairment and the medical factors that should be considered.
See Angus Chen, If BMI Is the Test of Health, Many Pro Athletes Would Flunk, NPR (Feb. 4, 2016, 12:36 PM), https://www.npr.org/sections/health-shots/2016/02/04/465569465/if-bmi-is-the-testrof-health-many-pro-athletes-would-flunk [https://perma.cc/5F5X-9W2U].
Reference
- Full Case Name
- Certification From the United States Court of Appeals for the Ninth Circuit in Casey TAYLOR and Angelina Taylor, Husband and Wife and the Marital Community Composed Thereof, Plaintiffs-Appellants, v. BURLINGTON NORTHERN RAILROAD HOLDINGS, INC., a Delaware Corporation Licensed to Do Business in the State of Washington, and BNSF Railway Company, a Delaware Corporation Licensed to Do Business in the State of Washington, Defendants-Appellees.
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- 12 cases
- Status
- Published