Under Washington Law Against Discrimination, is perceived obesity considered a protected class for purposes of disparate-treatment claims (based on failure to hire)? Here’s my point of view.
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WASHINGTON LAW AGAINST DISCRIMINATION
Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy*); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status, honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status*.
It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.
* (NOTE: This is an external link that will take the reader to our Williams Law Group Blog.)
DEFINITION OF DISABILITY
WLAD “generally prohibits employers from discriminating against an employee because the employee has a disability.” Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 614 (Wash. 2019) (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).
OBESITY ALWAYS QUALIFIES AS AN IMPAIRMENT
In 2018, “[t]he United States Court of Appeals for the Ninth Circuit certified the following question to … [the Washington State Supreme 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).
Accordingly, the Washington State Supreme Court held as follows: “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.” Id. at 615 (hyperlink and emphasis added). Moreover, for purposes of failure-to-hire disparate treatment cases, the plaintiff doesn’t need to prove that they’re actually impaired (i.e., obese).
DISPARATE TREATMENT (FAILURE TO HIRE): PERCEIVED DISABILITY IS A PROTECTED CLASS
“In order to prevail in a [failure-to-hire] disparate treatment case … [based on obesity,] a plaintiff need show only that the employer perceived the employee as having an ‘impairment.'” See id. at 622 (citing RCW 49.60.040(7)) (internal citations and footnote omitted) (emphasis 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)).
Thus, “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 … the WLAD.” Id. (footnote omitted) (emphasis added).
CONCLUSION
Under Washington Law Against Discrimination, perceived obesity is considered a protected class for purposes of failure-to-hire disparate treatment claims.
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