United States: Obesity Is 'Always' A Disability in Washington, Washington Supreme Court Rules

Last Updated: July 17 2019
Article by Benjamin J. Stone

Washington (July 15, 2019) – The Washington Supreme Court recently ruled that obesity is "always" a disability under the Washington Law Against Discrimination (WLAD) in a decision that seems problematic in its analysis and troubling in its consequences.

The Decision

Plaintiff Casey Taylor applied for a job as an electronic technician for BNSF Railway Company. BNSF chose not to hire him after he disclosed that he was 5'7'' and weighed 250 pounds. BNSF reasoned that, with a body-mass index, or BMI, over 40, he was morbidly obese and, due to the significant health and safety risks his weight posed, he may not be medically qualified for the job.

Taylor sued, alleging that he was the victim of disability discrimination because his obesity was regarded by BNSF as a disability. Although initially litigated in federal courts, the issue of whether obesity is a disability was ultimately decided by the Washington Supreme Court when the Ninth Circuit certified the following question to the court: "Under what circumstances, if any, does obesity qualify as an 'impairment' under" the WLAD?

The Washington Supreme Court answered the question by decreeing that obesity is "always" a disability.

The court began its analysis by citing the WLAD. Under the statute, a disability is a medically cognizable or diagnosable physical impairment. The court noted that the statute does not define "physiological" but, under the dictionary definition, "physiology" is defined as "organic processes and phenomena of an organism." The court found that obesity met this definition because it "involves both the organic process and phenomena of an organism – the excessive accumulation of fat cells." The court also found that obesity is a disorder because it is "an abnormal accumulation of fat cells that results in above average weight."

The court rejected the argument that obesity is not a medical condition but is, rather, simply the result of eating (or drinking) too much. While recognizing that obesity is an "imbalance between energy intake and energy expenditure," the court stated that the medical community has concluded that the causes of obesity "are probably multifactorial and include genetic predisposition" and that "there is an overwhelming consensus in the medical community that obesity is a disease in and of itself."

The court also concluded that obesity was a qualifying condition under regulations promulgated by the State of Washington Human Rights Commission in defining disability. Under that agency's definition, a disability is a qualifying condition if it is a condition that causes the person to lose his or her job. The Washington Supreme Court held that obesity was a qualifying condition because Taylor did not get the job because he was obese. Furthermore, it was a qualifying condition because obesity can affect the body, by making it difficult, for example, to breathe or walk. 


The question posed by the Ninth Circuit Court of Appeals was relatively narrow. Rather than answer the question, the Washington Supreme Court issued a sweeping policy pronouncement that was more properly left to the legislature. 

Two judges dissented from the court's opinion and they correctly identified the flaws in the court's analysis. Among other things, the court's reliance on BMI was problematic. As the dissent recognized, BMI measures not only fat, but muscle, and "a professional football player may have a high BMI because of his weight in relation to his height, but that weight is associated with muscle rather than fat." 

The court relied on what it called "medical evidence" when, in fact, it cited websites and reference books that, as any law student can tell you, is inadmissible in court for any number of reasons. Furthermore the court picked favorable data when, as the dissent pointed out, the causes and definitions of obesity is subject to much debate. Not only that, the court relied on a regulation from the State of Washington Human Rights Commission that the Washington Supreme Court rejected years earlier because it was circular. 

Unless the legislature assumes control of this issue, as it should by conducting proper hearings and taking testimony, the court's decision will have significant consequences for employers in Washington. 

As BNSF and others who briefed the court pointed out, if obesity is a disability, then a significant percentage of the population is disabled (amici stated that 29 percent of Washingtonians have BMI over 35). This ruling means that approximately 30 percent of the state's workers are now disabled, and any of them can now sue after being turned down for a job, rejected for a promotion, disciplined, or terminated. Because they can now argue that they are disabled as a matter of law, rather than having to prove they are disabled (as was the law before this decision), they can foist on the employer the burden of proving that the plaintiff's obesity was not a substantial factor in the adverse employment action. While many employers will undoubtedly be able to defend the claims, they will be able to do so only after they have expended significant defense costs and suffered the burdens and stresses of litigation. And the trial courts, already overburdened by cases and understaffed, will have to adjudicate these new claims. 

Looking forward, it will be imperative for employers who do consider whether job applicants are obese in deciding whether to hire them, or who make employment-related decisions based on whether employees are obese, to look at those policies in light of this decision and determine whether they are prepared to defend those decisions in court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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