As we previously reported here, the U.S. Court of Appeals for the Ninth Circuit and the Washington Supreme Court have been wrestling with whether obesity qualifies as a disability under the Washington Law Against Discrimination (“WLAD”).

The dispute involves an applicant for a position with a railway company who sued in 2010, alleging that the company unlawfully refused to hire him in violation of the WLAD because of his obesity.  Six years later, a federal district court granted summary judgment in favor of the railway company, holding that because the applicant could not prove that his obesity was caused by a physiological condition or disorder or that the employer perceived his obesity as stemming from such a source, his obesity discrimination claim under state law could not proceed.  The applicant appealed, and the Ninth Circuit Court of Appeals  concluded that whether obesity unrelated to any physiological condition or disease is a disability was an unresolved issue under state law, and that rather than decide the issue, it certified the question to the Washington Supreme Court to decide.  After considering the plain language of the WLAD, along with publications from the medical community, the Washington Supreme Court held last year that “obesity always qualifies as an impairment” under the plain language of the WLAD, and therefore, it is unlawful for employers in Washington to discriminate against otherwise qualified applicants because the employer perceives them to be obese.   

In large part because of the Washington Supreme Court’s ruling, on January 30, 2020, a three-judge panel for the Ninth Circuit partially vacated and remanded the district courts grant of summary judgment in favor of the company on the plaintiff’s claim of disability discrimination on account of his perceived obesity.  The court reasoned that because a reasonable jury could find that (1) the plaintiff was perceived to have a disability (obesity); (2) the plaintiff was able to perform the essential functions of the job; and (3) the company’s perception of his disability was a substantial factor in its decision to deny him employment, summary judgment was not appropriate.

The court relied on its previous decision in EEOC v. BNSF Railway Co. in concluding that the plaintiff’s claim of discrimination asserts a valid legal theory.  In that case, the Ninth Circuit held that an employer engages in prohibited discrimination under the federal Americans with Disabilities Act (“ADA”) when it withdraws a conditional offer of employment based on an applicant’s failure to pay for medical testing that the employer has required solely due to the applicant’s perceived disability or impairment.  Because the WLAD is generally at least as broad as the ADA, the court concluded that its holdings in EEOC v. BNSF applied to the WLAD as well.

As discussed in our prior posts on obesity and disability law, there is disagreement in the courts as to whether obesity alone constitutes a disability (the position taken by the Washington Supreme Court), or whether obesity must result from a physical condition or disease in order to be a disability.  The Ninth Circuit’s decision serves to highlight that continuing disagreement.