*1 COMPANY, BNSF RAILWAY Corporation, a Delaware Petitioner, ERIC FEIT, Respondent. No. OP 11-0463. Argued and Submitted on Briefs March 2012. July Decided 2012.
JUSTICE *2 Hedger, Benjamin Bryan (argued), Neal Jeff For Petitioner: Friend, P.L.L.C.; Billings. Rechtfertig; Hedger O. Terry (argued); N. Trieweiler Trieweiler Law Respondent:
For Firm; Whitefish. Opinion BAKER of the Court.
JUSTICE delivered Montana, of States District Court for the District The United ¶1 Division, certified Molloy presiding, the Honorable Donald W. Helena to this Court: following question condition a symptom that is not the a Is ¶2 of impairment” mental as it is used in Montana Code “physical or 49-2-101(19)(a)? Annotated § and answer with a accepted question the certified now We
qualified “yes.” FACTUAL
PROCEDURAL AND BACKGROUND 27,2009, Feit filed an administrative February complaint On Eric Industry (Department) and Department with the Montana Labor (BNSF) Railway alleging Burlington Company Northern Santa Fe illegally against perceived discriminated him because 10,2010, disability-obesity. hearing In an order dated March a officer Feit, summary disposition entered in favor of Department for discriminatory in and a concluding engaged that “BNSF is liable for regarded refusal to hire Feit because it him as disabled” and awarded benefits, interest, damages wages and and prejudgment for lost appeal emotional distress. BNSF filed an with the Montana Human Commission, Rights which issued an order on December decision. then the U.S. affirming Department’s petitioned BNSF District it violated the Montana Human Court review whether (MHRA) Rights by refusing obesity. Act to hire Feit because of his Both parties summary judgment, filed motions for at which time the U.S. District Court certified its to this Court. 15(6)(b), App. In accordance with M. R. P. the U.S. District Court following
certified the facts: employment Eric offer of as a 1. BNSF offered Feit conditional upon conditioned employment conductor trainee. The was examination, drug screening, completion physical successful and eligibility, investigation, proof employment background Questionnaire. History Medical BNSF’s qualified he 6,2008, informed Feit was February BNSF 2. On “significant health because of the “safety position his sensitive” obesity.” extreme safety risks associated with and job unless he Feit he not be considered for 3. BNSF told would successfully completed body weight, of his either lost 10% expense. Regardless his examinations at own physical additional results, job. Feit a guarantee BNSF did not of the test test, successfully study Feit exception sleep of a 4. With requested. exams BNSF physical the additional completed $1,800, Feit could not afford the test. test cost at least sleep it not consider him for 5. Because BNSF informed Feit that would completed sleep unless he position the conductor trainee weight. of his study, Feit set out lose 10% regarding exists whether BNSF received genuine dispute 6. A weight loss. documentation of Feit’s February 27,2009, complaint Feit filed a with the Montana
7. On charged discriminating [with] BNSF Department of Labor disability. him against based on
STANDARD OF REVIEW
15(3),
may
question
Court
answer a
App.
“Under M. R.
P.
this
¶6
review, therefore,
Our
by
qualifying
of law certified to it
another
court.
facts
purely
interpretation
applied
agreed
is
an
of the law as
to
LLC,
Hog,
underlying the action.” State Farm Fire & Cas. Co. v. Bush
349,
4,
173,
2009 MT
353 Mont.
DISCUSSION requires question posed. This case the Court to answer the narrow job questions apply It not the of this Court to determine of fact or to is brief, presented requests to the facts to us. In his Feit we law Although may this Court question. reformulate certified 15(4), under M. R. P. Feit’s question App. reformulate a certified the ultimate proffered essentially reformulation asks us resolve BNSF, Further, decline to do. Feit dispute issue in his which we certified the U.S. asks the Court to consider facts outside those 16, August 2011 order District Court in its order. This Court’s “as formulated on the relevant accepting question the certified did so question” of the and we Judge Molloy’s facts set forth in certification unnecessary information outside that statement of find it to consider facts. employer The MHRA makes it unlawful for an to refuse disability
employment person “physical to a because of or mental ... the position require a[] when reasonable demands of do not ... 49-2-303(l)(a), or mental ... distinction.” Section A “physical disability” MCA. or mental is defined as: (i) physical substantially or mental limits one person’s major activities; or more of a (ii) impairment; a record of such an (iii) regarded impairment. a condition as such an added). 49-2-101(19)(a), (emphasis Section MCA The U.S. District specifically analyze Court’s asks us impairment,” disability. Molloy not the broader definition of Judge As observed, this Court has not had occasion to interpret meaning “impairment.” statute, term To construe this Montana we look to guidance from federal discrimination law under the Americans with (ADA). Dept. Disabilities Act McDonald v. Quality, 2009 MT of Envtl. 209, 39, 4, 243, 749; n. 351 Mont. 214 P.3d Campbell City ¶ v. Garden Inc., Plumbing Heating, 12-14, & 2004 MT 322 Mont. ¶¶ 546; Trustees, P.3d 130, 28, Pannoni v. Bd. 2004 MT 321 Mont. 311, 90 Legislature P.3d 438. The Montana has indicated its clear intent the MHRA interpreted consistently with federal discrimination statutes and case law. In particular, the definition of physical or mental disability substantially is identical to that in the ADA. U.S.C. 12102. And preamble to the 1991 amendments to the MHRA states that the previously adopted “definitions lack clarity and are inconsistent with definitions used in rights federal civil interpretations statutes and court the subject.” on 1991Mont. Laws ch. turn, therefore, 551. We to federal interpretation law and of it to analysis. inform our We have relied on federal case law as well as the Equal federal (EEOC)
Employment Opportunity Commission
regulations and
interpretive guidelines in construing Montana’s discrimination laws.
Schs.,
v. Sidney
Pub.
2001 MT
¶¶
Butterfield
1243; Reeves
Queen, Inc.,
32 P.3d
Dairy
23-25,
MT
¶¶
*4
196,
703;
Conoco,Inc.,
287 Mont.
953 P.2d
Hafner
(1994).
886 P.2d
950-51
An interpretation of federal
law
the federal agency that
it
great
administers
is afforded
deference.
Servs.,
Sleath v.
381, 37, 304
WestMont Home Health
MT
2000
Mont.
Chevron, U.S.A.,
16 P.3d
(citing
1042
Inc. v. Natural Resources
Council,
(1984)).
Inc.,
837, 844, 104
467U.S.
S. Ct.
2782
Defense
ADA
by passing
ADA
recently amended the
Congress
(ADAAA).
ADA
Act of
Act
Amendments
Amendments
(2008).
110-325,122
Congress
specific
Stat. 3553
amended
Pub. L. No.
here,
doing,
ADA
relevant
but in so
also affirmed
provisions of the
scope
protection
“a
to
purpose
of the ADAAA to reinstate
broad
ADA,”
intention that “the
under the
and clarified its
be available
coverage
disability... shall be construed in favor of broad
definition of
terms of the Act. 122 Stat.
permitted” by
... to the maximum extent
1630.1(c)(4) (2011).
ADAAA
3554-55;
at
see also 29 C.F.R. §
“Congress
[federal cases]
finds that
have narrowed
broad
provides:
ADA,
by the
thus
intended to be afforded
scope
protection
many
Congress
individuals whom
intended
eliminating protection
history suggests
Congress
did not
protect.”
legislative
While the
terms to
expect
regulatory
the EEOC’s current
definition of these
(29
1630.2(h) (2011)),
change
app.
C.F.R.
did
pt.
§
intent that “the
of whether an individual’s
express
specific
its
ADA
demand
is a
under
should not
analysis.”
Notably, Congress
extensive
conditions that are and conditions ‘impairment’ characteristics: “The definition of the term does *5 364 color, color, eye characteristics such as hair left- physical
not include
handedness,
height, weight,
or
or muscle tone that are within ‘normal’
range
physiological
pt.
and are not the result of a
disorder.” 29 C.F.R.
1630.2(h) (2011).
Interpretive
suggests
Guidance thus
app.
1630
only
“impairment” requires
“physiological
person’s
disorder”
if a
conjunctive “and,”
weight
range.” By using
is “within ‘normal’
regulation
weight
impairment only
excludes
from the definition of
if it
range”
physiological
is both “within ‘normal’
and “not the result of a
points
that most federal courts to have
disorder.” BNSF
out
considered
the issue have held that
is not an
unless it is the
result of a
physiological disorder
condition. See EEOC v. Watkins
(6th
2006)
Lines, Inc.,
(holding
Motor
463 F.3d
Cir.
“to
constitute an ADA impairment,
person’s obesity,
even morbid
obesity,
physiological condition”);
must be the result of a
Andrews v.
(6th
1997)
Ohio,
(holding
charging
104 F.3d
Cir.
parties
weight
had not demonstrated
physiological
their
was the result of a
condition under the ADA and affirming a motion to dismiss their
(2d
1997)
claims);
Meriden,
281, 286-87
City
Francis v.
129 F.3d
Cir.
of
(holding
characteristics,
weight,
such as
that do not
result from a
“impairments”).
disorder are not considered
These courts
held
have
characteristics that are ‘not the
result
a physiological
of
disorder’ are not
‘impairments’
considered
purposes
determining
perceived disability.”
either actual or
Lines, Inc.,
Andrews,
Watkins Motor
at 442 (quoting
463 F.3d
104 F.3d
808-09).
at
line
urges
BNSF
us to follow this
of cases and answer the
negative. However,
certified
in the
the cases on which BNSF
relies all were decided
passage
Act,
before
of the ADAAA. In that
they
instructed the
interpreting
courts
were
the statute too
restrictively
expressed
and
specific
its
intent
that determination of
analysis.
not demand extensive
generally impairment, obesity, not an “severe which has been defined clearly body weight as more than over the norm ... is an 100% 902.2(c)(5)(h). Compliance EEOC Manual The EEOC’s interpretation supports weight a conclusion that outside “normal range” may constitute a condition within the definition body systems.” if it conclusion impairment “affects one or more This recently by has federal courts. See EEOC v. adopted been some (E.D. Dev., Inc., 688, Resources Human 827 F. 2d La. Supp. 2011) Manual, (concluding, Compliance in reliance on the EEOC that is, “if a charging party’s weight range-that is outside the normal if the charging severely is party explicit requirement obese-there is no that obesity physiological impairment”); be based on a Lowe v. American ** (N.D. LLC, Eurocopter, 23, 2010 U.S. Dist. LEXIS Miss. 16, 2010) claim, (denying plaintiffs noting Dec. motion to dismiss ADA the “substantial the ADA the ADAAA”and expansion stating requiring obesity cases a of a product condition effect”); all ADAAA Dept. “were before the took but see Lescoe v. Pa. (M.D. Corrects., 2011 U.S. Dist. LEXIS March **10-13 Pa. 2011) (upholding summary judgment in favor of the defendant on an plaintiff obesity ADA claim because had not demonstrated his was a ADAAA). impairment, addressing but not As Manual, noted in the EEOC mere of an Compliance presence “[t]he automatically does not mean that an has a individual disability. Whether severe rises to the level of a will limits, obesity substantially substantially turn on whether the has limited, substantially limiting, major activity.” is as regarded 902.2(c)(5)(ii) 16;1 n. see also Sibilla v. Compliance
EEOC
Manual §
(E.D.N.Y.
LEXIS
*26
March
Corp.,
Follett
2012 U.S. Dist.
2012) (even
ADAAA,
employer regards
fact that an
an
“[t]he
under the
overweight
necessarily
as
does not
mean that the
employee
obese
employer regards
employee
suffering
physical impairment.”).
as
ADAAA, the EEOC’s
included the
Interpretive
Prior to the
Guidance
that,
circumstances, obesity
in
“except
statement
rare
is not considered
(2008).
disabling impairment.”
pt.
app.
1630.2(j)
29 C.F.R.
Notably,
language
this
has been omitted from the 2011 version.
argues
expressly adopted
BNSF
that Montana has not
ADAAA,
therefore,
statutory changes contained in the
should
we
interpretations
not consider
federal amendments or the EEOC’s
Moreover,
thereof.
BNSF contends the ADAAA is not retroactive and
here,
interpretation
citing
therefore
of it is not applicable
Becerril v.
(9th
1162, 1164
2009),
Office,
Pima Co. Assessor’s
587 F.3d
Cir.
for the
proposition
did not
intend the ADAAA
apply
retroactively.
arguments
These
overlook the
point
we are
statutes,
interpreting Montana
not the
and that we are
construing “impairment”
They
for the first time.
further overlook the
“disability”
substantively
fact that the definition of
was not
amended
respect
meaning
to the
“impairment.”
prior
Our
case law
directs us to use federal interpretations
guidance,
confining
without
authority
our review to
on
place
the date the MHRA
first
was
Hafner,
enacted.
U.S.C. § ADA, and the EEOC’s together, Taken ¶16 guidance in interpretation provide persuasive are clear and interpreting foregoing, the MHRA. Based on the we answer the a Obesity symptom certified as follows: that is not the may “physical or condition constitute a physiological disorder meaning of Montana Code Annotated impairment” mental within 49-2-101(19)(a) weight range” is outside if the individual’s “normal § body systems” in 29 C.F.R. and affects “one or more as defined 1630.2(h)(1) (2011). NELSON, JUSTICES WHEAT and COTTER concur. MORRIS, dissenting.
JUSTICE us, effect, in The United States District Court has asked to define in I “physical impairment” agree or mental as used the MHRA. that guide Opinion, Court we must turn to federal law to us. 8.¶ Luck would have it that the EEOC-the federal responsible commission enforcing a regulatory ADA-has created definition that defines 1630.2(h)(1). “physical or mental 29 C.F.R. This definition provides, pertinent part, that or mental impairment” disorder, “any physiological includes or condition” that 1630.2(h)(1). major system body. affects a of the human 29 C.F.R. A plain reading of this definition demonstrates a physiological bodily system condition or disorder must affect a before a person possesses physical Thus, impairment. physiological condition must present impairment before an exists. Obesity accordingly cannot fall within this definition when it does not secondarily occur to a condition or disorder. interpretative guidance The accompanies the definition supports reading. this The “definition of the term ‘impairment’ does physical eye color, color, include characteristics such as hair left- handedness, height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” 29 Pt. C.F.R. 1630.2(h) added). 1630, App. (emphasis The Court construes this statement ‘impairment’ requires to mean “that a ‘physiological ” only disorder’ if person’s weight is ‘within normal range.’ Opinion, 12. This ignores conjunctive construction nature of the interpretative guidance. guidance plainly provides person’s that a weight qualifies impairment only as an if it falls outside the normal range AND occurs the result of a disorder. Both requirements must be satisfied before an can be found. interpretation only The Court’s would be accurate if the interpretative guidance provided characteristics should not be
368 if the characteristics “are within the ‘normal’ impairments
considered The EEOC did range physiological or are not the result of a disorder.” guidance disjunctive. in the not write Indeed, reading interpretative guidance a of the definition’s entire represents a physiological demonstrates that a disorder or condition determining impairment threshold issue for whether an exists. For conditions, guidance provides that “other such as example, physiological that are not the result a disorder are also pregnancy, of 1630.2(h) impairments.” App. (emphasis not 29 C.F.R. Pt. added). Similarly, an guidance “[t]he notes that definition of impairment personality also does not include common traits such as judgment temper or a these are not a poor quick symptoms where of 1630.2(h) psychological mental or disorder.” 29 C.F.R. Pt. App. § added). whole, The a (emphasis guidance, as makes clear that a physiological present condition or disorder must be before an impairment exists. agreed Numerous courts have must be caused a
physiological
may
disorder or condition before it
be considered an
impairment. The Sixth Circuit specifically rejected the notion that
weight
may
outside the normal limit
constitute
physical impairment
Lines,
physiological
Inc.,
absent a
condition.
EEOC Watkins Motor
(6th
2006).
F.3d
Obesity
secondary
442-43
Cir.
must be
to a
physiological
may
disorder or condition
it
before
be considered an
Lines,
impairment.
Inc.,
Watkins Motor
¶24 response example, the EEOC’s to the ADAAA. For the EEOC made no modification to and mental “physical impairment” substantive its following definition the enactment of the ADAAA. 29 C.F.R. § 1630.2(h)(1) 1630.2(h)(1) (2011). (2008); 29 C.F.R. In compare § particular, the EEOC definition still retains the disorder 1630.2(h)(1). requirement. or condition 29 C.F.R. § By contrast, substantively the EEOC modified its definition for ¶25 light the two other elements of a the of ADAAA. 29 C.F.R. 1630.2Q) (2008), (2011); compare 1630.2Q) 29 C.F.R. 29 C.F.R.
§ § § 1630.2(i) (2011). 1630.2(i)(2008), compare 29 C.F.R. The EEOC § “substantially by instructing modified limits” term must be broadly expansive coverage “construed in favor of ...” and that standard “is not meant to demanding....” 1630.2(j)(l)(i). be 29 C.F.R. § “substantially The EEOC further made clear that limits” does not require that an “prevent, significantly severely restrict, the performing major activity.” individual from life 29 C.F.R. 1630.2(j)(l)(ii). represents complete This modification § reversal “substantially pre-ADAAA. limits” definition The EEOC substantively “major also modified its definition of life activity.” previously only physical activity. The list included 29 C.F.R. 1630.2(i) (2008). The EEOC has major now modified the list of life § activity non-physical to include “speaking, breathing, activities such as learning, reading, concentrating, thinking, communicating, interacting 1630.2(i)(l)(i). others, working and ....” 29 C.F.R. The EEOC “major activity” interpreted further directed that life “shall not strictly demanding disability.” to create a standard for 29 C.F.R. 1630.2(i)(2). response reflect the full extent of EEOC’s These modifications “major activity” ADAAA. The EEOC now instructs broadly. The made
“substantially limits” shall be construed EEOC no regarding broadly the need to construe similar modifications clearly “physical definition of a or mental The EEOC ADAAA imposed changes determined that no to its definition of adjustments “physical impairment” imposed or mental no to how phrase interpreted. this should be action, Congress’s previously in addition to the mentioned
legislative history, supports further that the ADAAA no notion has requirement effect on the condition impairment. ADAAA Congress specifically change directed the EEOC in the its 2(a)(8). 110-325, “substantially definition of limits.” P.L. ADAAA, however, nothing regarding any included in the need to regulatory revise the EEOC’s definition of impairment.” Congress did not direct the EEOC to eliminate *10 physiological requirement condition or disorder of that definition. Indeed, Congress conveyed its intent in the ADAAA that “whether ¶29 an individual’s impairment is under the ADA should not 2(b)(5). analysis.” ADAAA, 110-325, demand extensive P.L. This § purpose presumes stated actually possesses individual an impairment, suggestion and leads to the that broad construction only applies regard with to impairment whether actual disability. Congress constitutes a specifically noted in the ADAAA its disagreement Supreme United States Court’s determination “substantially that the terms “major activity’ limits” and should be 2(b)(4). 110-325, strictly. construed P.L. Congress made no § statement regard whatsoever with to to interpret “physical how mental I disagree with the Court’s obesity may
¶30 determination be considered an impairment when it occurs without an accompanying physiological condition or disorder. The regulatory EEOC definition requires that a disorder or condition present must be an nothing to exist. The EEOC did modify this in response definition to ADAAA. included no directive to the modify EEOC in the ADAAA to its definition of a or mental impairment. These persuade factors me to answer the certified question no. I dissent. joins
CHIEF JUSTICE McGRATH in dissenting Opinion Justice Morris. RICE, dissenting.
JUSTICE “no”-obesity that is not a question I answer the certified would not a symptom of a condition is 49-2-101(19)(a), in MCA. I believe impairment” as the term is used analysis premised upon post-event is it is the Court’s flawed because to the ADA that have not been congressional amendments into the Montana Human incorporated by Legislature the Montana Act, guide court that should Rights precedent rather than the federal our decision. statements of fact from the U.S. District undisputed seven upon
Court
which we are to base our answer to the certified
discriminatory
indicate that the
alleged
conduct occurred
2008. “On
February
qualified
BNSF informed Feit he was not
for his
‘safety
position
‘significant
safety
sensitive’
because of the
health and
”
obesity.’ Finding
risks associated with extreme
of Fact 2. BNSF
suggested
pursue
options,
thereafter
that Feit could
certain additional
but,
so,
such as losing weight,
guarantee
position
even
BNSF did not
to Feit if he successfully completed
options.
these
1,
January
The ADAAA did not become effective until
2009.
Pub.
“
(2008).
110-325,
3553,
L. No.
122 Stat.
determine
We
rights
parties according
substantive
between the
to the
in effect
law
at
”
injury.’
1,
246,
the date of
v. Butte Sch. Dist. No.
2010 MT
Griffith
(quoting
358 Mont.
373
City
Falls,
v.
MT
61
Hunter
Great
impinges upon legislative prerogative by-
P.3d 764.1 believe the Court
conforming
Legislature
spoken.
state law to the ADAAAbefore the
has
I
Consequently,
jurisprudence
would look to federal
under the
ADA guidance
applying
for
the MHRA to a 2008 claim. I first note
pertinent
language
virtually
that the
of the ADA and the MHRA are
49-2-101(19)(a), MCA,
Compare
defining
identical.
or
“physical
“(i)
mental disability”
physical
impairment
as:
a
or mental
(ii)
substantially
person’s major
activities;
limits one or more of a
(iii)
impairment;
a record of such an
or
a
regarded
condition
as such a
“(A)
impairment;”
12102(2),
with 42
defining “disability”
U.S.C.
as:
a
physical
or mental
that substantially limits one or more
(B)
major
individual;
of the
life activities of such
a record of such an
(C)
impairment;
being regarded
having
or
as
such
Further,
interpreting
“physical
when
the term
or mental impairment,”
federal courts
unfailingly required
have
be caused
physiological condition to
qualify
disability.
(6th
Ohio,
1997),
In Andrews v.
troopers
alleged under
ADA
perceived
being
that the state
them as
disabled
they
because
mandatory weight
exceeded Ohio’s
limits for law
Andrews,
enforcement officers.
Citing
disability based
on his
Francis,
Appeals
The 2nd Circuit Court of
job
conclusion. In a notable recent
was
against
ADA
his
morbidly
brought
obese and
claims under
demoting
reducing
pay
him and
his
because of the
employer for
job
employer’s perception
plaintiff
longer perform
that the
could no
his
Hill,
duties,
failing
provide
and for
reasonable accommodation.
suggesting
U.S. Dist. LEXIS 59786 at *9-10. There was “no evidence
underlying physiological
that Mr. Hill suffered from an
condition or
Hill,
denying