Lead Opinion
delivered the Opinion of the Court.
¶1 The United States District Court for the District of Montana, Helena Division, the Honorable Donald W. Molloy presiding, certified the following question to this Court:
¶2 Is obesity that is not the symptom of a physiological condition a “physical or mental impairment” as it is used in Montana Code Annotated § 49-2-101(19)(a)?
¶3 We accepted the certified question and now answer with a qualified “yes.”
PROCEDURAL AND FACTUAL BACKGROUND
¶4 On February 27,2009, Eric Feit filed an administrative complaint with the Montana Department of Labor and Industry (Department) alleging that Burlington Northern Santa Fe Railway Company (BNSF) illegally discriminated against him because of perceived disability-obesity. In an order dated March 10,2010, a hearing officer for the Department entered summary disposition in favor of Feit, concluding that “BNSF engaged in and is liable for a discriminatory refusal to hire Feit because it regarded him as disabled” and awarded damages for lost wages and benefits, prejudgment interest, and emotional distress. BNSF filed an appeal with the Montana Human Rights Commission, which issued an order on December 6, 2010, affirming the Department’s decision. BNSF then petitioned the U.S. District Court to review whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity. Both parties filed motions for summary judgment, at which time the U.S. District Court certified its question to this Court.
¶5 In accordance with M. R. App. P. 15(6)(b), the U.S. District Court certified the following facts:
1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening,*361 background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.
2. On February 6,2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”
3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.
4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.
5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.
6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.
7. On February 27,2009, Feit filed a complaint with the Montana Department of Labor and charged BNSF [with] discriminating against him based on a physical or mental disability.
STANDARD OF REVIEW
¶6 “Under M. R. App. P. 15(3), this Court may answer a question of law certified to it by another qualifying court. Our review, therefore, is purely an interpretation of the law as applied to the agreed facts underlying the action.” State Farm Fire & Cas. Co. v. Bush Hog, LLC,
DISCUSSION
¶7 This case requires the Court to answer the narrow question posed. It is not the job of this Court to determine questions of fact or to apply the law to the facts presented to us. In his brief, Feit requests that we reformulate the certified question. Although this Court may reformulate a certified question under M. R. App. P. 15(4), Feit’s proffered reformulation essentially asks us to resolve the ultimate issue in his dispute with BNSF, which we decline to do. Further, Feit asks the Court to consider facts outside those certified by the U.S. District Court in its order. This Court’s August 16, 2011 order accepting the certified question did so “as formulated on the relevant facts set forth in Judge Molloy’s certification of the question” and we find it unnecessary to consider information outside that statement of
¶8 The MHRA makes it unlawful for an employer to refuse employment to a person because of “physical or mental disability ... when the reasonable demands of the position do not require a[] ... physical or mental disability ... distinction.” Section 49-2-303(l)(a), MCA. A “physical or mental disability” is defined as:
(i) a physical or mental impairment that substantially limits one or more of a person’s major life activities;
(ii) a record of such an impairment; or
(iii) a condition regarded as such an impairment.
Section 49-2-101(19)(a), MCA (emphasis added). The U.S. District Court’s question asks us specifically to analyze “physical or mental impairment,” not the broader definition of disability. As Judge Molloy observed, this Court has not had occasion to interpret the meaning of the term “impairment.” To construe this Montana statute, we look to guidance from federal discrimination law under the Americans with Disabilities Act (ADA). McDonald v. Dept. of Envtl. Quality,
¶9 We have relied on federal case law as well as the federal Equal Employment Opportunity Commission (EEOC) regulations and interpretive guidelines in construing Montana’s discrimination laws. Butterfield v. Sidney Pub. Schs.,
¶11 Neither the original ADA nor the ADAAA defines “physical or mental impairment.” The EEOC defines “impairment” as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1) (2011). The EEOC regulations in this context define “impairment” in the same manner as those in place prior to the ADAAA, with the addition of two body systems (circulatory and immune). Compare 29 C.F.R. § 1630.2(h)(1) (2011) with 34 C.F.R. § 104.3(j)(2)(i) (2011); Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630 app. § 1630.2(h) (2011).
¶12 The EEOC’s Interpretive Guidance distinguishes between conditions that are impairments and conditions that are simply physical characteristics: “The definition of the term ‘impairment’ does
¶13 The EEOC’s Compliance Manual, interpretations of the law for EEOC employees charged with investigating discrimination claims, states: “[Njormal deviations in height, weight, or strength that are not the result of a physiological disorder are not impairments.....At extremes, however, such deviations may constitute impairments.” EEOC Compliance Manual § 902.2(c)(5), http://www.eeoc.gov/policy/docs/ 902cm.html#902.2c5 (accessed on June 28, 2012) (citations omitted). The Compliance Manual was last updated on November 21, 2009, subsequent to the passage and effective date of the ADAAA. Although the Compliance Manual has not been formally adopted and made part of the Code of Federal
¶14 While the EEOC notes that “being overweight, in and of itself’ is generally not an impairment, “severe obesity, which has been defined as body weight more than 100% over the norm ... is clearly an impairment.” EEOC Compliance Manual § 902.2(c)(5)(h). The EEOC’s interpretation supports a conclusion that weight outside “normal range” may constitute a physiological condition within the definition of impairment if it “affects one or more body systems.” This conclusion recently has been adopted by some federal courts. See EEOC v. Resources for Human Dev., Inc.,
¶15 BNSF argues that Montana has not expressly adopted the statutory changes contained in the ADAAA, and therefore, we should not consider the federal amendments or the EEOC’s interpretations thereof. Moreover, BNSF contends the ADAAA is not retroactive and therefore interpretation of it is not applicable here, citing Becerril v. Pima Co. Assessor’s Office,
Notes
It appears this statement has not been updated since adoption of the ADAAA. Under the amendments, an individual meets the requirement of “being regarded as having such an impairment” by establishing that he or she has been subjected to discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A) (emphasis added).
Dissenting Opinion
dissenting.
¶17 The United States District Court has asked us, in effect, to define “physical or mental impairment” as used in the MHRA. I agree with the Court that we must turn to federal law to guide us. Opinion, ¶ 8. Luck would have it that the EEOC-the federal commission responsible for enforcing the ADA-has created a regulatory definition that defines “physical or mental impairment.” 29 C.F.R. 1630.2(h)(1). This definition provides, in pertinent part, that “physical or mental impairment” includes “any physiological disorder, or condition” that affects a major system of the human body. 29 C.F.R. 1630.2(h)(1).
¶18 A plain reading of this definition demonstrates that a physiological condition or disorder must affect a bodily system before a person possesses a physical or mental impairment. Thus, a physiological condition must be present before an impairment exists. Obesity accordingly cannot fall within this definition when it does not occur secondarily to a physiological condition or disorder.
¶19 The interpretative guidance that accompanies the definition supports this reading. The “definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” 29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). The Court construes this statement to mean “that ‘impairment’ requires a ‘physiological disorder’ only if a person’s weight is ‘within normal range.’ ” Opinion, ¶ 12. This construction ignores the conjunctive nature of the interpretative guidance. The guidance plainly provides that a person’s weight qualifies as an impairment only if it falls outside the normal range AND occurs as the result of a physiological disorder. Both requirements must be satisfied before an impairment can be found. The Court’s interpretation would be accurate only if the interpretative guidance provided that physical characteristics should not be
¶20 Indeed, a reading of the definition’s entire interpretative guidance demonstrates that a physiological disorder or condition represents a threshold issue for determining whether an impairment exists. For example, the guidance provides that “other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.” 29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). Similarly, the guidance notes that “[t]he definition of an impairment also does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” 29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). The guidance, as a whole, makes clear that a physiological condition or disorder must be present before an impairment exists.
¶21 Numerous courts have agreed that obesity must be caused by a physiological disorder or condition before it may be considered an impairment. The Sixth Circuit specifically rejected the notion that weight outside the normal limit may constitute a physical impairment absent a physiological condition. EEOC v. Watkins Motor Lines, Inc.,
¶22 The Second Circuit similarly agreed that obesity, by itself, does not qualify as an impairment because “physical characteristics that are ‘not the result of a physiological disorder’ are not considered ‘impairments’ for the purposes of determining either actual or perceived disability.” Francis v. City of Meriden,
¶23 The Court dismisses this reasoning based on the fact that the ADAAA has superceded these decisions. Opinion, ¶ 12. The ADAAA requires broad construction of disability. Yet, the ADAAA has no effect with regard to the definition of “physical or mental impairment.” The EEOC expressly noted that it made no change to its definition of “physical or mental impairment” because “the legislative history of the Amendments Act notes that Congress ‘expects that the current regulatory definition of [physical or mental impairment] ... will not change.’ ” 29 C.F.R. Pt. 1630, App. § 1630.2(h). Accordingly, the ADAAA’s directive for a broad construction of disability provides no justification to ignore the definition’s plain language or to ignore previous cases interpreting the definition.
¶24 The ADAAA’s effect on the definition is further borne out through the EEOC’s response to the ADAAA. For example, the EEOC made no substantive modification to its “physical and mental impairment” definition following the enactment of the ADAAA. 29 C.F.R. § 1630.2(h)(1) (2008); compare 29 C.F.R. § 1630.2(h)(1) (2011). In particular, the EEOC definition still retains the physiological disorder or condition requirement. 29 C.F.R. § 1630.2(h)(1).
¶25 By contrast, the EEOC substantively modified its definition for the two other elements of a disability in light of the ADAAA. 29 C.F.R. § 1630.2Q) (2008), compare 29 C.F.R. § 1630.2Q) (2011); 29 C.F.R. § 1630.2(i)(2008), compare 29 C.F.R. § 1630.2(i) (2011). The EEOC modified “substantially limits” by instructing that term must be “construed broadly in favor of expansive coverage ...” and that the standard “is not meant to be demanding....” 29 C.F.R. § 1630.2(j)(l)(i). The EEOC further made clear that “substantially limits” does not require that an impairment “prevent, or significantly or severely restrict, the individual from performing a major life activity.” 29 C.F.R. § 1630.2(j)(l)(ii). This modification represents a complete reversal of the “substantially limits” definition pre-ADAAA.
¶26 The EEOC also substantively modified its definition of “major life activity.” The list previously included only physical activity. 29 C.F.R. § 1630.2(i) (2008). The EEOC now has modified the list of major life activity to include non-physical activities such as “speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working ....” 29 C.F.R. § 1630.2(i)(l)(i). The EEOC further directed that “major life activity” “shall not be interpreted strictly to create a demanding standard for disability.” 29 C.F.R. 1630.2(i)(2).
¶28 Congress’s action, in addition to the previously mentioned legislative history, further supports the notion that the ADAAA has no effect on the physiological condition requirement for impairment. Congress specifically directed the EEOC in the ADAAA to change its definition of “substantially limits.” ADAAA, P.L. 110-325, § 2(a)(8). Congress included nothing in the ADAAA, however, regarding any need to revise the EEOC’s regulatory definition of “physical or mental impairment.” Congress did not direct the EEOC to eliminate the physiological condition or disorder requirement of that definition.
¶29 Indeed, Congress conveyed its intent in the ADAAA that “whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” ADAAA, P.L. 110-325, § 2(b)(5). This stated purpose presumes that the individual actually possesses an impairment, and leads to the suggestion that broad construction applies only with regard to whether that actual impairment constitutes a disability. Congress specifically noted in the ADAAA its disagreement with the United States Supreme Court’s determination that the terms “substantially limits” and “major life activity’ should be construed strictly. ADAAA, P.L. 110-325, § 2(b)(4). Congress made no statement whatsoever with regard to how to interpret “physical or mental impairment.”
¶30 I disagree with the Court’s determination that obesity may be considered an impairment when it occurs without an accompanying physiological condition or disorder. The EEOC regulatory definition requires that a physiological disorder or condition must be present for an impairment to exist. The EEOC did nothing to modify this definition in response to ADAAA. Congress included no directive to the EEOC in the ADAAA to modify its definition of a physical or mental impairment. These factors persuade me to answer the certified question no. I dissent.
¶32 The seven statements of undisputed fact from the U.S. District Court upon which we are to base our answer to the certified question indicate that the alleged discriminatory conduct occurred in 2008. “On February 6, 2008, BNSF informed Feit he was not qualified for his ‘safety sensitive’ position because of the ‘significant health and safety risks associated with extreme obesity.’ ” Finding of Fact 2. BNSF thereafter suggested that Feit could pursue certain additional options, such as losing weight, but, even so, BNSF did not guarantee a position to Feit if he successfully completed these options.
¶33 The ADAAA did not become effective until January 1, 2009. Pub. L. No. 110-325, 122 Stat. 3553, § 8 (2008). “ We determine the substantive rights between the parties according to the law in effect at the date of injury.’ ” Griffith v. Butte Sch. Dist. No. 1,
¶34 Further, the Court overlooks the fact that the Montana Legislature has not adopted corresponding changes to the MHRA in the two legislative sessions since enactment of the ADAAA. The Court presumes that because Congress enacted the ADAAA, Montana law necessarily follows, without pausing to consider that our Legislature has not so directed. When Congress revises federal disability discrimination laws, Montana is faced with the question of whether to revise state laws in the same manner. After congressional passage of the ADA, the Montana Legislature saw fit in 1991 to make corresponding changes in the MHRA, including adding the requirement of “reasonable accommodations” and updating the definition of “physical or mental handicap.” See Mont. H.B. 389, 52d Legis., Reg. Sess.; Laws of Montana, 1991, ch. 241,551. The preamble to H.B. 389 explained that the then-current definitions of physical and mental handicap in state law “lack[ed] clarity and are inconsistent with definitions used in federal civil rights statutes and court interpretations on the subject.” Again, in 1993, the Montana Legislature elected to follow the lead of Congress by exchanging the concept of “handicap” within the MHRA for the concept of “disability.” See Mont. H.B. 496,53rd Legis., Reg. Sess.; Laws of Montana, 1993, ch. 407,1374. The preamble to H.B. 496 explained that “making the state human rights laws consistent with the Americans with Disabilities Act will eliminate some confusion between state and federal laws.” Laws of Montana, 1993, ch. 407, at 1375. Rep. Diana Wyatt, sponsor of the bill, commented in her opening statement that “[t]he purpose of HB 496 is to update terminology used in the Montana Human Rights Law so it is consistent with the terminology used in the Americans with Disabilities Act (ADA).” Mont. S. Comm, on Jud., Minutes of the Hearing on H. Bill 496, 53rd Legis., Reg. Sess. 2 (March 12, 1993). ¶35 However, the Montana Legislature has not yet enacted corresponding revisions to the MHRA based upon the ADAAA. “[T]he Legislature is presumed to act with deliberation and with full knowledge of all existing laws on a subject.” Mont. Sports Shooting Assn. v. State,
¶37 In Andrews v. Ohio,
¶38 Numerous federal district court decisions have reached the same conclusion. In a notable recent case, the plaintiff was diagnosed as morbidly obese and brought claims under the ADA against his employer for demoting him and reducing his pay because of the employer’s perception that the plaintiff could no longer perform his job duties, and for failing to provide reasonable accommodation. Hill,
¶39 BNSF is entitled to be judged under the law that governed alleged discriminatory conduct in 2008. Looking to the appropriate federal jurisprudence for guidance in applying state law to this particular claim, the very strong rule across the federal circuits is that obesity that is not the result of a physiological condition is not a “physical impairment.” I would thus answer the certified question “no.”
2008 EEOC regulations similarly defined “physical or mental impairment” as: (1 )Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities 29 C.F.R. § 1630.2(h) (2008) (emphasis added). EEOC’s Compliance Manual distinguishes “impairments” from “characteristics,” stating:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments. The definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.
29 C.F.R. § 1630.2(h) Appx. (2008) (emphasis added).