Obesity is Considered a Disability Under the Washington Law Against Discrimination

Following the ruling in Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 618, 444 P.3d 606, 608 (2019), a plaintiff can bring a claim against an employer or potential employer under the  (“Washington Law Against Discrimination (WLAD”) based on obesity, which is considered a physical impairment.

One of the acts prohibited by the law against discrimination is discrimination by an employer against an employee because of the “presence of any sensory, mental or physical disability.”  RCW 49.60.180(3). In a separate subsection, an employer is also prohibited from discharging an employee because of inter alia “the presence of any sensory, mental, or physical disability.” Id. at (2). See, e.g., Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145 (en banc 2004); Fell v. Spokane Transit Authority, 128 Wn.2d 618, 634 - 36 (en banc 1996). Elements of a prima facie case of disability discrimination are that the employee was: (1) disabled, (2) subject to an adverse employment action, (3) doing satisfactory work, and (4) discharged under circumstances that raise a reasonable inference of unlawful discrimination. Scholz v. Washington State Patrol, Wash.App.2d 584, 416 P.3d 1261 (2018). “Disability” is defined as “a sensory, mental, or physical impairment that: (i) [i]s medically cognizable or diagnosable; or (ii) [e]xists as a record or history; or (iii) [i]s perceived to exist whether or not it exists in fact.” RCW 49.60.040(7)(a). A disability can be “temporary or permanent, common or uncommon, mitigated or unmitigated” and can exist regardless of whether it limits the ability to work generally or at a particular job or limits any other activity in this chapter. RCW 49.60.040(7)(b); Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 618, 444 P.3d 606, 608 (2019).

In Taylor, the Court considered under what circumstances, if any, does obesity qualify as an impairment under WLAD and determined that “obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a “physiological disorder, or condition” that affects multiple body systems listed in the statute.” 193 Wn.2d at 615. It reasoned 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 this section of the WLAD. Id. 

When a plaintiff makes a disparate treatment claim, the plaintiff need not show that they are actually suffering from an impairment. Instead, it is enough to show that the employer discriminated against the plaintiff because it perceived the plaintiff to be suffering from an impairment. RCW 49.60.040(7)(a)(iii); Taylor at 612.   Therefore, all a plaintiff needs to prove in a disparate treatment claim involving disability discrimination, is that the employer perceived the employee as having an “impairment.” Id.    The Court further explained that unlike its federal counterpart, the Americans with Disabilities Act, (“ADA”) “obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute” and declined to use federal interpretations of the ADA to constrain the protections offered by the WLAD.  The Court concluded that because obesity qualifies as an impairment under the plain language of the statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese.”  Id. at 632.