Scott F. Cooper
A decision this week from the Ninth Circuit Court of Appeals has further fueled the debate over whether obesity is a protected impairment under federal and state law.
In Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), Burlington rejected Taylor’s application to become an electronic technician because his Body Mass Index (“BMI”) placed him in the “severely” or “morbidly” obese category. Complicating this case is that the company’s chief medical officer otherwise found Taylor qualified for the position. The company also was willing to reconsider the application if Taylor undertook additional pre-hire medical screening at his own expense. The Ninth Circuit earlier this year held that shifting pre-hire medical examination costs to an applicant is unlawful.
The Ninth Circuit certified the issue and sent it to the Supreme Court of Washington to determine its application under Washington state law. Pending that ruling, the Ninth Circuit will then resolve the issue under the federal Americans with Disabilities Act (“ADA”). How these decisions come out could have sweeping implications for employers who have acted against obese job applicants and employees.
A Really Complicated Problem
There are few issues under the ADA and related state anti-discrimination laws that remain more ambiguous and difficult for employers than the treatment of obese people. The courts are split, state and federal law often reach different results, and the Equal Employment Opportunity Commission (“EEOC”) guidance is far from clear—especially pre-hire.
Obesity: Testing the Definition of a “Disability” under State and Federal Law
The real issue in this case is whether obesity fits within the definition of a disability and, if yes, under what conditions. Not all physical traits are protected under the ADA.
The ADA prohibits discrimination against a person with a “disability.” Importantly, however, not all physical traits are protected under the ADA. A disability is a “physical or mental impairment.” The EEOC defines an impairment as any “physiological disorder or condition.” In the case of obesity, however, the EEOC concludes that it is a condition only when the weight is not normal unless caused by physiological disorders. As the Ninth Circuit pointed out, however, even the EEOC does not define what the “normal weight range” is.
As if this is not enough, the Courts have fought over whether a condition must be physiological. The EEOC regulations (notably 29 C.F.R. § 1630.2(h)) used to say “no.” Then, following the 2008 expansive amendments to the ADA, the regulations seemed to get more restrictive. Your high school grammar teacher will love this one because much of the debate has turned on the EEOC removing a comma from its regulations from between the words “disorder” and “or condition.”
A Brightline Rule or More Case-by-Case Trials
The issue going to the Washington State Supreme Court and still pending with the Ninth Circuit is the “yes or no” threshold determination whether obesity is covered under federal or state law at all and, if yes, whether there is a requirement that the obesity be caused by physiological underpinnings.
The Second, Sixth, and Eighth Circuits have held that obesity generally is not a protected trait unless it is caused by a physiological reason. The Second and Sixth Circuit decisions, however, predate the 2008 amendments to the ADA. The Supreme Court refused to review the Eighth Circuit’s decision in 2016. The Ninth Circuit, which generally is very pro-employee, will either join with these Courts or create a significant split of authority.
What Should Employers Do?
If obesity itself falls outside the legal definition of a disability, employers need not follow the interactive process during the hiring, ongoing working, or termination processes. If obesity is a covered impairment, or even requires a finding of physiological cause, further investigation will be necessary and the full requirements of the ADA and state laws may apply.
Employers wanting to avoid litigation in this area can simply elect to treat obesity as a covered condition or impairment and then, through the interactive process, determine if the individual can perform the essential functions of the job with or without a reasonable accommodation. They may also require proof of a physiological condition causing the obesity, but that runs its own risks too, especially pre-hire. Those same employers also need to confirm whether the place of employment has local legislation and whether they can shift any costs of pre-hire medical examinations to the applicant.
Unless the Ninth Circuit sides with the courts that have already weighed in (pun intended!), a deep split of legal authority is likely in store for the foreseeable future.
We will update you as the Courts of Washington and the Ninth Circuit enter their respective rulings.