In Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611 (Wash. 2019), the Court addressed whether obesity always qualifies as an impairment under the Washington Law Against Discrimination (WLAD).
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SNAPSHOT: This is a case summary of Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611 (Wash. 2019). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information)
I. SNAPSHOT
case citation
Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611 (Wash. 2019)
DESCRIPTION
“The Washington Law Against Discrimination (WLAD) generally prohibits employers from discriminating against an employee because the employee has a disability.” Id. at 614 (citing 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.'” Id. (citing RCW 49.60.040(7)(a)) (alteration in original).
“The United States Court of Appeals for the Ninth Circuit certified the following question to this court: Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD, RCW] 49.60.040?” Taylor, 193 Wn.2d at 614-15 (citing Order Certifying Question to Wash. Supreme Ct., Taylor v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 853 (9th Cir. 2018)) (alteration in original) (internal quotation marks omitted) (hyperlink added).
“We answer that obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a ‘physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Taylor, 193 Wn.2d at 615 (hyperlink added).
“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.” Id. (footnote omitted).
CATEGORIES
(1) Disability Discrimination (Disparate Treatment)
(2) Definition of Disability
(3) Perceived Disability
LEGAL TREEs
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CASE SUMMARY SECTION: The following section contains background facts and enumerates material evidence that the Court considered in this case.
II. CASE SUMMARY
FACTS (10 Total):
[1] “In 2007, Casey Taylor received a conditional offer of employment as an electronic technician for BNSF Railway Company (BNSF).” Id. at 615.
[2] “The offer was contingent on a physical exam and a medical history questionnaire.” Id.
[3] “[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. (internal citation omitted).
[4] “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.” Id. (internal citation omitted).
[5] “BNSF told Taylor that it was company policy to not hire anyone who had a BMI of over 35 and that if he could not afford the testing his only option was to lose 10 percent of his weight and keep it off for six months.” Id. at 616.
[6] “In 2010, Taylor sued BNSF and Burlington Northern Railroad Holdings Inc. in King County Superior Court, alleging that BNSF violated the WLAD by refusing to hire him because of a perceived disability— obesity.” Id.
[7] “BNSF removed the case to federal court and moved for summary judgment, relying on federal cases interpreting federal law to argue that obesity is not a disability under the WLAD unless it is caused by a separate, underlying physiological disorder.” Id.
[8] “The United States District Court for the Western District of Washington agreed and granted summary judgment on this issue to BNSF, ruling that ‘under the WLAD, a plaintiff alleging disability discrimination on the basis of obesity must show that his or her obesity is caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause.'” Id. (internal citation omitted).
[9] “The court dismissed the case with prejudice.” Id.
[10] “Taylor timely appealed to the Ninth Circuit[ ][;] [t]hat 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. … We accepted certification.” Id. (internal citation omitted).
Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 615-16 (Wash. 2019).
GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.
III. GENERAL RULES
The General Rules Section for this case includes the following topics:
1. Standard of Review;
2. Washington Law Against Discrimination; and
3. Legislative Intent.
1. STANDARD OF REVIEW
(A) STATUTORY INTERPRETATION
“Statutory interpretation is a question of law reviewed de novo.” Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 617 (Wash. 2019) (citing State v. James-Buhl, 190 Wn.2d 470, 474, 415 P.3d 234 (2018)) (internal quotation marks omitted). “Statutory interpretation begins with the statute’s plain meaning.” Id. (citing James-Buhl, 190 Wn.2d at 474) (internal quotation marks omitted) (hyperlink added).
(B) PLAIN MEANING
“Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Id. (citing James-Buhl, 190 Wn.2d at 474) (internal citation and quotation marks omitted) (hyperlink added).
(C) AMBIGUITY
“If the statute is ambiguous, the court resorts to principles of statutory construction, legislative history, and relevant case law to assist [the court] in discerning legislative intent.” Id. (citing Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001)) (alteration in original) (internal quotation marks omitted) (hyperlink added).
2. WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
(A) UNFAIR PRACTICES OF EMPLOYERS
REFUSAL TO HIRE: “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.’ ” Id. at 618 (citing RCW 49.60.180(1)) (alteration in original) (hyperlinks added).
DISABILITY EXCEPTION: “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.’ ” Id. (citing RCW 49.60.180(1)) (hyperlinks added)
(B) DEFINITION OF DISABILITY
SENSORY, MENTAL OR PHYSICAL IMPAIRMENT: Under WLAD, “‘Disability‘ 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.
Id. (citing RCW 49.60.040(7)(a)) (paragraph formatting, hyperlink, and emphasis added).
SCOPE: “A disability can be ‘temporary or permanent, common or uncommon, mitigated or unmitigated’ and can exist regardless of whether it limits the ability to work generally or at a particular job, or limits any other activity in this chapter.” Id. (citing RCW 49.60.040(7)(b)) (hyperlink added).
(C) DEFINITION OF IMPAIRMENT
Under WLAD, the term “‘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.
Id. (citing RCW 49.60.040(7)(c)) (emphasis added).
(D) DISPARATE TREATMENT (OBESITY)
“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.'” Id. at 622 (citing RCW 49.60.040(7)) (internal citations and footnote omitted) (hyperlinks added). “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.” Id. at 637 (referencing RCW 49.60.040(7)(d)) (hyperlink added).
(a) Failure to Hire
“Because obesity qualifies as an impairment under the plain language of our statute [(WLAD)], it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.” Id. at 632 (referencing RCW 49.60.180) (hyperlinks added).
(b) Reasonable Accommodations
“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).” Id. at 637 n.1 (hyperlinks added).
(E) FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS (OBESITY)
“In a reasonable accommodation case, the plaintiff would have to show[:]
[(a)] that they actually had obesity and
[(i)] 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
[(ii)] 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.”
Id. at 637 n.4 (internal citation omitted) (emphasis added)
3. THE LEGISLATIVE INTENT (VIA STATUTORY HISTORY)
WLADs history “provides two crucial insights into legislative intent[ ][:]
[(A)] … [T]he legislature intended to adopt a broad and expansive definition of “disability” in order to protect against discrimination[ ][; and]
[(B)] … [T]he legislature has expressly rejected the idea that the ADA [(Americans with Disabilities Act)] should be used to constrain the protections offered under the WLAD.
Id. at 621-22 (paragraph formatting, hyperlinks, and emphasis added).
(A) WLADs HISTORY: THE LEGISLATURE INTENDED TO ADOPT A BROAD AND EXPANSIVE DEFINITION OF ‘DISABILITY’ TO PROTECT AGAINST DISCRIMINATION
THE BEGINNING (WA STATE HUMAN RIGHTS COMMISSION): “The original version of the WLAD did not define the term ‘disability.’ ” Id. at 619 (internal citation omitted) (hyperlink added).
YEAR 2000 (PULCINO COURT): CONFUSION APPLYING HRCs DEFIITION IN REASONABLE ACCOMMODATION CASES: In 2000, the Court in Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641, 9 P.3d 787 (2000), “concluded that the HRC definition was unworkable in reasonable accommodation claims[.]” Taylor, 193 Wn.2d at 619 (hyperlink added). This is “because[:]
[I]t would require an employee to show that the employer failed to accommodate the employee (i.e., discriminated against him or her) because of the employee’s abnormal condition.
This implies that the employer accommodates other employees; but, obviously, employees who are not disabled do not require such accommodation.
Id. (internal citation and quotation marks omitted) (paragraph formatting added). Consequently, the court adopted a different reasonable-accommodation test. Id.
The Pulcino court “also expressly recognized that the WLAD‘s definition of ‘disability’ is broader than the definition in the ADA.” Taylor, 193 Wn.2d at 620 (citing Pulcino., 141 Wn.2d at 641 n.3, 9 P.3d 787) (hyperlink added).
YEAR 2006 (MCCLARTY COURT): ADOPTS ADAs DISABILITY DEFINITION: “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.” Taylor, 193 Wn.2d at 620 (citing McClarty v. Totem Elec., 157 Wn.2d 214, 228, 137 P.3d 844 (2006)) (hyperlinks added).
(B) WLADs HISOTRY: THE LEGISLATURE HAS EXPRESSLY REJECTED THE IDEA THAT THE ADA SHOULD BE USED TO CONSTRAIN WLAD PROTECTIONS
WA STATE LEGISLATURE DISAGREES WITH MCCLARTY COURT: “The legislature disagreed with the definition adopted by the majority in McClarty. It expressly found … [:]
[T]he 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.”
Taylor, 193 Wn.2d at 621 (Wash. 2019) (citing LAWS of 2007, ch. 317, § 1) (alteration in original) (emphasis and hyperlinks added).
LEGISLATURE INTENDED BROAD DEFINITION: “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.’ ” Id. (citing RCW 49.60.040(7)(a), (c)(i)) (alteration in original) (internal quotation marks omitted) (emphasis and hyperlink added).
ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.
IV. ISSUES
ISSUE #1: Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the WLAD, RCW 49.60.040?
STATUTORY INTERPRETATION: “Statutory interpretation is a question of law reviewed de novo.” Taylor, 193 Wn.2d at 617 (internal citation and quotation marks omitted). “Statutory interpretation begins with the statute’s plain meaning.” Id. (internal citation and quotation marks omitted).
PLAIN MEANING: “Plain meaning is discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Id. (internal citation and quotation marks omitted).
AMBIGUOUS STATUTES: LEGISLATIVE INTENT: “If the statute is ambiguous, the court resorts to principles of statutory construction, legislative history, and relevant case law to assist [the court] in discerning legislative intent.” Id. (internal citation omitted).
(A) OBESITY IS ALWAYS AN IMPAIRMENT UNDER THE PLAIN LANGUAGE OF RCW 49.60.040(7)(C)(I)
MEDICAL EVIDENCE SHOWS IT’S A PHYSIOLOGICAL DISORDER/CONDITION: “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.” Taylor, 193 Wn.2d at 617.
PERCEIVED IMPAIRMENT: “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.'” Taylor, 193 Wn.2d at 622 (citing RCW 49.60.040(7)) (internal citations and footnote omitted) (hyperlinks added). “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.”Id.at 637 (referencing RCW 49.60.040(7)(d)) (hyperlink added).
DOESN’T HAVE TO BE CAUSED BY SEPARATE PHYSIOLOGICAL DISORDER/CONDITION: “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.” Id.
WA LEGISLATURE MADE CLEAR THAT WLAD IS BROADER THAN ADA: “Our legislature has made it clear that the WLAD is broader than its federal counterpart, the Americans with Disabilities Act of 1990 (ADA), and we decline to use federal interpretations of the ADA to constrain the protections offered by the WLAD.” Taylor, 193 Wn.2d at 617 (footnote omitted).
(1) The Statute
THE RULE: See § III(2) (General Rules: THE STATUTE (WASHINGTON LAW AGAINST DISCRIMINATION)), supra. In this case, “[t]he parties … debate whether obesity is a ‘physiological disorder, or condition’ under this definition.” Taylor, 193 Wn.2d at 618.
(2) The Legislative Intent
THE RULE: see § III(3) (General Rules: THE LEGISLATIVE INTENT (VIA STATUTORY HISTORY)), supra.
CONCLUSION: “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 expressly rejected the idea that the ADA should be used to constrain the protections offered under the WLAD.
Taylor, 193 Wn.2d at 621-22 (paragraph formatting added).
(3) The Plain Language
THE ISSUE, REFINED: “Because there is no question here that BNSF perceived Taylor as having ‘extreme obesity,’ … the issue presented by this disparate treatment case is whether obesity can qualify as an impairment. It can.” Id. at 622-23 (internal citations and footnote omitted) (emphasis added).
THE RULE: See § III(2) (General Rules: THE STATUTE (WASHINGTON LAW AGAINST DISCRIMINATION)), supra.
CONCLUSION: MEDICAL EVIDENCE SHOWS OBESITY IS ALWAYS AN IMPAIRMENT: “Obesity is not merely the status of being overweight. Obesity is recognized by the medical community as a primary disease.” Taylor, 193 Wn.2d at 623. “The medical evidence shows that obesity is always an impairment because it is a ‘physiological disorder, or condition … affecting one or more of the [listed] body systems.'” Id. (citing RCW 49.60.040(7)(c)(i)) (alteration in original).
THE DISSENT (YU, J.): “[B]ecause 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 633.
REFRAMING THE CERTIFIED QUESTION: In this case, the dissent asserted, “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.” Taylor, 193 Wn.2d at 637. “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.” Taylor, 193 Wn.2d at 633 (emphasis added).
(A) “OBESITY IS A DISABILITY IF (1) 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 (2) THE PLAINTIFF’S OBESITY IMPAIRS ONE OR MORE BODY SYSTEMS LISTED IN RCW 49.60.040(7)(c)(i).” Id. at 633 (emphasis added).
“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.” Taylor, 193 Wn.2d at 633.
(B) MAJORITY RESPONSE
THE ONLY QUESTION IS WHETHER OBESITY CAN QUALITY AS AN IMPAIRMENT: “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).” Taylor, 193 Wn.2d at 637 n.5.
OBESITY ALWAYS AFFECTS SYSTEMS OF THE BODY: “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.” Id. at 637 n.8.
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