I recently had occasion to write about cities and states revisiting their laws related to obesity as a protected characteristic and the potential for liability for disability discrimination on the basis of perceived obesity. Case in point, on January 30, the Ninth Circuit overturned a district court’s grant of summary judgment against a job applicant on the basis that a jury could find that his prospective employer BNSF Railway Company’s perception that he was obese played a significant role in the company’s decision not to hire him, in violation of the Washington Law Against Discrimination (“WLAD”).
The Ninth Circuit’s memorandum opinion -- not designated for publication -- cited the Washington Supreme Court’s interpretation of the WLAD: “obesity always qualifies as an impairment.” See Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5 (Wash. July 11, 2019). The Washington Supreme Court opinion, in turn, contains a detailed argument, citing medical authority, that obesity is a physiological disorder or condition that qualifies as an impairment. It is worth reading as an overview of potential judicial interpretations of disability-related statutes.
Similar to the job applicant in my earlier blog post, the job applicant here apparently had a BMI of over 40, triggering further medical evaluation for the requirements of the electrical technician job.
In denying the applicant employment, BNSF Railway allegedly told him that it could reevaluate him for the position if he provided further information at his own expense, including a “sleep study, exercise tolerance test, medical report documenting his blood pressure and sugar levels, hip and waist measurements and a VA disability determination report.” Alternatively, he could lose 10 percent of his weight and maintain that weight for at least six months.
The applicant did not pay for further testing. The Ninth Circuit concluded that it would be a violation of the WLAD for an employer to refuse to hire a prospective employee because they failed to pay for medical testing only required due to their perceived disability or impairment.
