904 F.3d 846
9th Cir.2018Background
- Taylor received a conditional offer from BNSF as an electronic technician contingent on medical clearance; his BMI of 41.3 (256 lb, 5'6") prompted additional screening.
- BNSF’s medical officer deemed Taylor’s extreme obesity a safety risk, required expensive further testing or a 10% weight loss and 6‑month maintenance; BNSF offered no financial assistance for testing.
- Taylor sued under the Washington Law Against Discrimination (WLAD), alleging BNSF perceived him as disabled because of obesity and withdrew the offer for that perceived impairment.
- The district court granted summary judgment for BNSF; Taylor appealed to the Ninth Circuit.
- The Ninth Circuit concluded the dispositive question is whether obesity can qualify as an “impairment” under the WLAD and, because Washington law on this point is unsettled and may be broader than federal law, certified the question to the Washington Supreme Court rather than deciding the merits.
- The Ninth Circuit assumed (consistent with its EEOC v. BNSF precedent) that withdrawing a conditional offer when an employer requires—and the applicant cannot afford—medical testing motivated solely by a perceived impairment can violate the WLAD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether obesity can be an “impairment” under WLAD § 49.60.040 | Taylor: WLAD’s definition includes "condition" (not limited to physiological disorders) and is expressly non‑exhaustive, so obesity can qualify even without physiological cause | BNSF: "Physiological" modifies both "disorder" and "condition," so only physiologically‑based conditions qualify; mere obesity without physiological cause is not an impairment | Court: Declined to decide; certified the controlling question to the Washington Supreme Court for authoritative interpretation |
| Whether denying employment for failing to pay for employer‑required medical testing constitutes actionable discrimination under the WLAD | Taylor: Such a withdrawal is discriminatory where testing was required due to perceived impairment | BNSF: Not disputed in substance here (argument focused on impairment definition) | Court: Assumed, based on Ninth Circuit precedent, that withdrawal under those facts can violate nondiscrimination law; did not certify this question |
Key Cases Cited
- Andrews v. Ohio, 104 F.3d 803 (6th Cir. 1997) (held obesity is an impairment under ADA only when there is an underlying physiological disorder)
- Cook v. Rhode Island Dep’t of Mental Health, 10 F.3d 17 (1st Cir. 1993) (upheld jury verdict recognizing severe obesity as physiological disorder with systemic effects)
- Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997) (held obesity is not a physical impairment under ADA except when tied to a physiological disorder)
- Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016) (construed EEOC guidance to require obesity outside the normal range and resulting from physiological disorder to be an impairment)
- Kumar v. Gate Gourmet Inc., 325 P.3d 193 (Wash. 2014) (Washington courts look to federal precedent but may interpret WLAD more broadly)
- Clipse v. Commercial Driver Servs., Inc., 358 P.3d 464 (Wash. Ct. App. 2015) (held side effects of prescription medication may constitute a disability under WLAD; applied WLAD’s plain, broad language)
- BNSF Ry. Co. v. Feit, 281 P.3d 225 (Mont. 2012) (interpreted state human rights law to allow non‑physiological obesity to be an impairment if weight is outside normal range and affects body systems)