In Washington state, obesity is now officially considered a disability—and protected under state anti-discrimination law. This means that “it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese,” as the Washington Supreme Court put it in a 7-2 ruling issued last week.
According to a 2018 survey, 27.7 percent of adults in Washington are considered obese and now covered by this broader definition of disability.
This massive increase in the number of people who are part of a protected class is likely to result in significant new government intrusions in hiring, firing, and other H.R. decisions, as well as large new potential claims on government benefits. What’s more, there’s a serious risk of unintended consequences: Such categorizations can end up harming the very people they are meant to help. Employers may hire people for jobs they will be unable to perform or discriminate against them in stealthier ways.
The Washington case came after former U.S. Marine Casey Taylor failed a medical exam because his body mass index (BMI) was, at 41.3, too high. A BMI of 40 or higher typically puts a person in the morbidly obese category.
Back in 2007, Taylor had applied to work as an electronics technician with BNSF Railway Company and got a conditional job offer saying that he would be given the position if he could pass a medical screening. After the screening, Taylor was told by the company that, due to his BMI, the “significant health and safety risks associated with extreme obesity,” and potential issues with Taylor’s knees and back, he might not be medically qualified for the job.
The company asked Taylor to either provide them with the results of a range of tests that prove his physical fitness or to lose 10 percent of his body weight. He brought a lawsuit against BNSF Railway instead. The suit alleges that the company discriminated against Taylor and “perceived Mr. Taylor as disabled due to morbid obesity,” knee and back problems, and his status as a veteran.
The case was dismissed in 2016, after winding up in the U.S. District Court for the Western District of Washington. The federal court found that “evidence presented [did] not support the conclusion” that BNSF had perceived Taylor as disabled, and therefore could not be guilty of discrimination on the basis of disability.
Taylor brought his suit under the Washington Law Against Discrimination, which prohibits employers from discrimination based on several factors, including disability.
Taylor appealed to the U.S. Court of Appeals for the 9th Circuit, which sent the case back to the Washington Supreme Court with instructions to answer “under what circumstances, if any, does obesity qualify as an ‘impairment’ under Washington law?”
In its July 11 decision, the state Supreme Court answered “obesity always qualifies as an impairment under the plain language of [the state’s anti-discrimination law] because it is recognized by the medical community as a ‘physiological disorder, or condition.'”
Justice Mary Fairhurst wrote for the majority that “if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates” Washington law.
The two judges who disagreed with their colleagues on this case noted concern that the state’s obesity definition was too broad and might create circumstances where people who are not obese are able to receive disability benefits or protections.
“Because the diagnostic line between ‘overweight’ and ‘obese’ is a function of an individual’s weight in relationship to their height, I do not agree that obesity always qualifies as an impairment under the plain language of the [Revised Code Of Washington],” Justice Mary Yu wrote in her dissent.
Michigan is the only state that explicitly lists obesity as protected from employment discrimination, but Massachusetts could soon join the list of states to explicitly list obesity as a protected class under the law.
Walter Olson, a legal analyst at the Cato Institute, points out that many obese people don’t consider themselves disabled at all. “Many people that are obese do not like calling themselves disabled and they don’t want it to be medicalized as a condition that requires therapy or care,” says Olson. “The body image movement brought forward the idea that it is not necessarily in some sense abnormal and it should be automatically medicalized.”
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