Obesity As A Disability In The Ninth Circuit – Mondaq News Alerts

Posted: February 15, 2020 at 2:49 am

12 February 2020

Squire Patton Boggs LLP

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As we previously reported here, the U.S. Court of Appeals for the NinthCircuit and the Washington Supreme Court have been wrestling withwhether obesity qualifies as a disability under the Washington LawAgainst Discrimination ("WLAD").

The dispute involves an applicant for a position with a railwaycompany who sued in 2010, alleging that the company unlawfullyrefused to hire him in violation of the WLAD because of hisobesity. Six years later, a federal district court granted summaryjudgment in favor of the railway company, holding that because theapplicant could not prove that his obesity was caused by aphysiological condition or disorder or that the employer perceivedhis obesity as stemming from such a source, his obesitydiscrimination claim under state law could not proceed. Theapplicant appealed, and the Ninth Circuit Court of Appealsconcluded that whether obesity unrelated to any physiologicalcondition or disease is a disability was an unresolved issue understate law, and that rather than decide the issue, it certified thequestion to the Washington Supreme Court to decide. Afterconsidering the plain language of the WLAD, along with publicationsfrom the medical community, the Washington Supreme Court held lastyear that "obesity always qualifies as an impairment"under the plain language of the WLAD, and therefore, it is unlawfulfor employers in Washington to discriminate against otherwisequalified applicants because the employer perceives them to beobese.

In large part because of the Washington Supreme Court'sruling, on January 30, 2020, a three-judge panel for the NinthCircuit partially vacated and remanded the district courts grant ofsummary judgment in favor of the company on the plaintiff'sclaim of disability discrimination on account of his perceivedobesity. The court reasoned that because a reasonable jury couldfind that (1) the plaintiff was perceived to have a disability(obesity); (2) the plaintiff was able to perform the essentialfunctions of the job; and (3) the company's perception of hisdisability was a substantial factor in its decision to deny himemployment, summary judgment was not appropriate.

The court relied on its previous decision in EEOC v. BNSF Railway Co. in concludingthat the plaintiff's claim of discrimination asserts a validlegal theory. In that case, the Ninth Circuit held that an employerengages in prohibited discrimination under the federal Americanswith Disabilities Act ("ADA") when it withdraws aconditional offer of employment based on an applicant's failureto pay for medical testing that the employer has required solelydue to the applicant's perceived disability or impairment.Because the WLAD is generally at least as broad as the ADA, thecourt concluded that its holdings in EEOC v. BNSF appliedto 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 aloneconstitutes a disability (the position taken by the WashingtonSupreme Court), or whether obesity must result from a physicalcondition or disease in order to be a disability. The NinthCircuit's decision serves to highlight that continuingdisagreement. We will continue to keep you updated as newdevelopments in this and other obesity-related discrimination casesarise.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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