Obesity now recognized as a disability under WLAD

The WLAD applies to most employers in Washington.  Among its protections, the WLAD guards against discrimination based upon the presence (or the perceived presence) of a disability.  RCW 49.60.180(1).  What impairments are considered a “disability”?  Broadly, a disability is “the presence of a sensory, mental or physical impairment that … is medically cognizable or diagnosable; or… exists as a record or history, or … is perceived to exist whether or not it exists in fact.”  RCW 49.60.040(7)(a).

Recently, the Washington State Supreme Court considered whether obesity falls within the definition of disability.   In Taylor v. Burlington Northern Railroad Holdings, Inc., 193 Wn.2d 611 (2019), the Supreme Court considered whether Burlington Northern’s policy of not hiring individuals with a body mass index above a stated threshold discriminated against individuals perceived as obese.  Burlington Northern argued that obesity alone was not a disability and was therefore not a protected condition.

In its opinion, the Court held that “obesity always qualifies as an impairment under the plain language of [the WLAD].”  Taylor, 193 Wn.2d 611, 615 (2019).  The Court explained that obesity is more than just being overweight; it is a primary disease.  Id. at 623.

Taylor highlights differences between state and federal laws regarding disability discrimination.  Washington’s definition of disability offers wider protection to employees than the federal definition under the Americans with Disabilities Act.  The Taylor decision follows a state trend of expanding employee protections.

Where does this decision leave employers?

• Employers may not refuse to hire an individual, discriminate in the hiring process, terminate an employee, or discriminate in the compensation or other terms and conditions of employment-based upon an individual being obese or being perceived as obese so long as the individual is otherwise qualified for the position.
• Obesity is different than being overweight. Obesity is a disease.
• An employee complaining of being treated differently because of obesity, need not demonstrate that he/she is obese, but it is enough to provide evidence that he/she was treated differently because they were perceived as being obese.
• An employee seeking accommodation in the workplace based upon obesity must demonstrate that they are obese.

Best practices:

• Job descriptions should be reviewed regularly to ensure that they relate to the essential job functions and do not disproportionately target protected groups.
• Employers and HR professionals should review policies related to pre-employment medical examinations related to weight and obesity.
• Employers and HR professionals should review hiring practices and update supervisors and managers regarding changes in the law.
• Handbooks should be reviewed at least annually for changes in the law.

 

Written by: Jennifer Hanson | Legal Counsel