* Taylor v. Burlington N. R.R. Holdings, Inc.

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IN CLERKS pmCE
SUPRBE COURT,amE OF VWSHmraN
GtmFJOsnce I
This opinion was
lied for record
at^l<H<on l^il-^19
c^/toCV^ -Susan L. Carlson
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT IN
CASEY TAYLOR and ANGELINA
TAYLOR,husband and wife and the
marital community composed thereof,
Plaintiffs-Appellants,
V.
BURLINGTON NORTHERN RAILROAD
HOLDINGS,INC., a Delaware Corporation
licensed to do business in the State of
Washington, and BNSF RAILWAY
COMPANY,a Delaware Corporation
licensed to do business in the State of
Washington,
Defendants-Appellees.
No. 96335-5
EN BANC
Filed JUL 1 1
FAIRHURST, C.J.—^The Washington Law Against Discrimination(WLAD)
generally prohibits employers from discriminating against an employee because the
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Taylor v. Burlington N. R.R. Holdings, /?7c.,No. 96335-5
employee has a disability. RCW 49.60.180. An employee has a disability if they
have an "impairment" that "[i]s medically cognizable or diagnosable," "[ejxists as a
record or history," or "[i]s perceived to exist whether or not it exists in fact." RCW
49.60.040(7)(a). The United States Court of Appeals for the Ninth Circuit certified
the following question to this court: "Under what circumstances,ifany, does obesity
qualify as an 'impairment' under the[WLAD,RCW]49.60.040?" Order Certifying
Question to Wash. Supreme Ct., Taylor v. Burlington N R.R. Holdings, //7C., No 16-
35205, at 2(9th Cir. Sept. 17, 2018). We answer 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. Therefore, 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 ofthe WLAD.'
I. FACTS AND PROCEDURAL HISTORY
In 2007, Casey Taylor received a conditional offer of employment as an
electronic technician for BNSF Railway Company (BNSF). The offer was
contingent on a physical exam and a medical history questionnaire. The physical
^ If instead, an employee was seeking reasonable accommodations, the employee would
have to show that they actually have obesity and that the obesity met the other criteria of RCW
49.60.040(7)(d).
2
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
exam found that Taylor "[mjeets minimum physical demands of the essential
functions of Electronic Technician." 2 Excerpts of Record(ER)at 287. Taylor self-
reported his height as 5 feet 7 inches and his weight as 250 pounds, resulting in a
body mass index (BMI) of 39.2. However, a medical exam found that Taylor's
height was 5 feet 6 inches and his weight was 256 pounds, resulting in a BMI of
41.3. Id. at 290."A BMI over 40 is considered 'severely' or 'morbidly' obese, and
BNSF treats a BMI over 40 as a 'trigger' for further screening in the employment
process." Taylor v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 848 (9th Cir.
2018). Because Taylor's BMI was over 40, his results were referred to BNSF's chief
medical officer. Dr. Michael Jarrard. BNSF told Taylor it was unable to determine
whether he was medically qualified for the job "due to significant health and safety
risks associated with extreme obesity (Body Mass Index near or above 40) and
uncertain status of knees and back." 2 ER at 147. BNSF offered to reconsider if
Taylor paid for expensive medical testing, including a sleep study, blood work, and
an exercise tolerance test. Taylor believed these tests would cost, at least, a few
thousand dollars. At the time, he was unemployed and did not have medical
insurance or United States Veteran's Administration benefits. He could not afford
the testing. BNSF told Taylor that it was company policy to not hire anyone who
had a BMI of over 35 and that if he could not afford the testing his only option was
to lose 10 percent of his weight and keep it off for six months.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
In 2010, Taylor sued BNSF and Burlington Northern Railroad Holdings Inc.^
in King County Superior Court, alleging that BNSF violated the WLAD by refusing
to hire him because of a perceived disability—obesity. BNSF removed the case to
federal court and moved for summaryjudgment,relying on federal cases interpreting
federal law to argue that obesity is not a disability under the WLAD unless it is
caused by a separate, underlying physiological disorder. The United States District
Court for the Western District of Washington agreed and granted summary judgment
on this issue to BNSF, ruling that "under the WLAD, a plaintiff alleging disability
discrimination on the basis of obesity must show that his or her obesity is caused by
a physiological condition or disorder or that the defendant perceived the plaintiffs
obesity as having such a cause." 1 ER at 23. The court dismissed the case with
prejudice.
Taylor timely appealed to the Ninth Circuit. That court concluded that
whether obesity may constitute an impairment, and thus a disability, under the
WLAD is an unresolved issue of state law and certified the question to this court.
Taylor, 904 F.3d at 849. We accepted certification.
11. ANALYSIS
We hold that obesity is always an impairment under the plain language of
RCW 49.60.040(7)(c)(i) because the medical evidence shows that it is a
^ We refer to both the railway company and the holding company collectively as "BNSF.'
4
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
"physiological disorder, or condition" that affects many of the listed body systems.
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. Our
legislature has made it clear that the WLAD is broader than its federal counterpart,
the Americans with Disabilities Act of 1990(ADA),^ and we decline to use federal
interpretations of the ADA to constrain the protections offered by the WLAD.
A. Standard of review
The certified question asks us to determine whether obesity can qualify as an
impairment under ROW 49.60.040. Statutory interpretation "is a question of law
reviewed de novo." State v. James-Buhl, 190 Wn.2d 470,474,415 P.3d 234(2018).
"Statutory interpretation begins with the statute's plain meaning." Id. "Plain
meaning is 'discerned from the ordinary meaning of the language at issue, the
context of the statute in which that provision is found, related provisions, and the
statutory scheme as a whole.'" Id. (quoting State v. Engel, 166 Wn.2d 572, 578, 210
P.3d 1007 (2009)). If the statute is ambiguous, the court resorts "to principles of
statutory construction, legislative history, and relevant case law to assist [the court]
in discerning legislative intent." Cockle v. Dep't ofLabor & Indus., 142 Wn.2d 801,
808, 16P.3d583 (2001).
42 U.S.C. § 12102.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
B. Obesity is an impairment under the WLAD
1. The statute
As this is a question of statutory interpretation, we look first to the text of our
statute. The WLAD makes it "an unfair practice for any employer . . . [t]o refuse to
hire any person because of. . . the presence of any sensory, mental, or physical
disability . . . unless based upon a bona fide occupational qualification." ROW
49.60.180(1). The statute provides that it is not discrimination to refuse to hire a
person whose disability "prevents the proper performance of the particular worker
involved." Id. "Disability" is defined as "a sensory, mental, or physical impairment
that: (i) [i]s medically cognizable or diagnosable; or (ii) [ejxists 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).
"Impairment" includes, but is not limited to:
(i) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more ofthe following
body systems: Neurological, musculoskeletal, special sense organs,
respiratory, including speech organs, cardiovascular, reproductive,
digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine;
or
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
(ii) Any mental, developmental, traumatic, or psychological
disorder, including but not limited to cognitive limitation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.
RCW 49.60.040(7)(c). The parties in this case debate whether obesity is a
"physiological disorder, or condition" under this definition.
2. The history of the statute and its interpretation
This is not the first time that we have been asked to interpret this statute, and
the history ofthis statute provides insight into our legislature's intent in adopting it.
The original version of the WLAD did not define the term "disability." See Hale v.
Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 500, 198 P.3d 1021 (2009). Instead,the
WLAD created an agency, now known as the Washington State Human Rights
Commission (HRC), to administer the law. The HRC is charged with formulating
policies and adopting rules to effectuate the WLAD. RCW 49.60.110, .120(3). The
HRC has explained that "a person will be considered to be disabled by a sensory,
mental, or physical condition if he or she is discriminated against because of the
condition and the condition is abnormal." WAC 162-22-020(2)(c).
In 2000,this court wrestled with how to apply HRC's definition in reasonable
accommodation cases. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641, 9 P.3d
787 (2000). 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
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Taylor v. Burlington N. R.R. Holdings, /«c., No. 96335-5
plaintiff to be suffering from an impairment. RCW 49.60.040(7)(a)(iii). But in a
reasonable accommodation case, the employee must show that they are actually
suffering from an impairment and that the employer failed to reasonably
accommodate them. RCW 49.60.040(7)(d). In Pulcino, we concluded that the HRC
definition was unworkable in reasonable accommodation claims because it would
require an employee to show that "the employer failed to accommodate the
employee (i.e., discriminated against him or her) because of the employee's
abnormal condition. This implies that the employer accommodates other employees;
but, obviously, employees who are not disabled do not require such
accommodation." 141 Wn.2d at 641. Therefore, we adopted a different test, holding
that in a reasonable accommodation case, the employee can prove that they are
actually disabled if"(1)[they have]/had a sensory, mental, or physical abnormality
and(2)such abnormality has/had a substantially limiting effect upon the individual's
ability to perform his or her job." Id. We explained that "[a]n employee can show
that [they have] a sensory, mental or physical abnormality, by showing that [they
have] a condition that is medically cognizable or diagnosable, or exists as a record
or history." Id. (citing former WAC 162-22-020(2) (1999)). We also expressly
recognized that the WLAD's definition of"disability" is broader than the definition
in the ADA.Id. at 641 n.3.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
Six years later, this court rejected the HRC's definition of "disability"
altogether and instead held that the ADA's definition applies to all disability
discrimination actions brought under the WLAD. McClarty v. Totem Elec., 157
Wn.2d 214, 228, 137 P.3d 844(2006). We explained that the HRC's definition was
confusing and that although courts often defer to administrative agencies'
interpretations of the statutes they are charged with administering, the HRC's
definition was "not a rational and sensible interpretation ofthe term 'disability.'" Id.
We rejected that definition "in favor of a definition better supported by the WLAD's
text, the legislature's intent, and our jurisprudence"—^the definition found in the
ADA.Id. We held that as under the ADA,"a plaintiff bringing suit under the WLAD
establishes that he has a disability if he(1)has a physical or mental impairment that
substantially limits one or more of his major life activities,(2)has a record of such
an impairment, or(3)is regarded as having such an impairment." Id. We noted that
if we adopted the federal definition, we could look to the "abundance of authority
interpreting the ADA"to "assist us in construing and applying similar provisions in
the WLAD."Id. at 229 n.lO.
Justice Owens dissented, explaining that the legislature had known since 1990
that the WLAD's definition of "disability" was broader than the ADA's definition
and had never chosen to amend the WLAD to overrule the HRC's interpretation. See
id. at 244(Owens, J., dissenting)(citing Wash. Indep. Tel. Ass'n v. Wash. Utils. &
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Taylor v. Burlington N. R.R. Holdings, /«c., No. 96335-5
Transp. Comm'n, 148 Wn.2d 887, 905, 64 P.3d 606 (2003) (holding that the
legislature is deemed to have acquiesced in a statutory interpretation when it makes
no change for a substantial period of time after the interpretation has been issued)).
She criticized the decision to overrule the HRC's policy choice to define "disability"
broadly and explained that the key focus in achieving the public policy ofthe WLAD
is '"whether the worker has any "sensory, mental or physical" condition which the
employer uses as a basis for rejecting him (or her) even though that individual may
be perfectly capable of properly performing the work.'" Id. at 246 (Owens, J.,
dissenting) (emphasis omitted) (quoting Br. of Appellant at 24-25, 44-45, Chi.,
Milwaukee, St. Paul & Pac. R.R. v. Wash. State Human Rights Comm 'n. No. 44105
(Wash.)).
The legislature disagreed with the definition adopted by the majority in
McClarty. It expressly found "that the supreme court, in its opinion in McClarty v.
Totem Electric, failed to recognize that the Law Against Discrimination affords to
state residents protections that are wholly independent of those afforded by the
[ADA], and that the law against discrimination has provided such protections for
many years prior to passage ofthe federal act." LAWS of2007, ch. 317, § 1 (citation
omitted). The legislature chose to define "disability" broadly as "the presence of a
sensory, mental, or physical impairment," even if it does not limit life activities, and
explained that an "'impairment' includes, but is not limited to ...[a]ny physiological
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
disorder, or condition .. . affecting one or more ofthe [listed] body systems." RCW
49.60.040(7)(a),(c)(i).
The above history provides two crucial insights into legislative intent. First,
the legislature intended to adopt a broad and expansive definition of"disability" in
order to protect against discrimination. Second,the legislature has expressly rejected
the idea that the ADA should be used to constrain the protections offered under the
WLAD.
3. Obesity is an impairment under the plain language of the WLAD
In order to prevail in a disparate treatment case like this one, a plaintiff need
show only that the employer perceived the employee as having an "impairment.'"^
RCW 49.60.040(7); of. McClarty, 157 Wn.2d at 248 (Owens, J., dissenting)
(explaining that requiring only this showing makes sense because "'an employee
claiming disparate treatment is not asking the employer to take any remedial steps
on his behalf. Rather, the employee asks only that the employer not terminate him
for discriminatory reasons'"(quoting McClarty v. Totem Elec., 119 Wn. App. 453,
Unlike in a reasonable accommodation case, the plaintiff in a disparate treatment case
need not show that they are actually impaired or that the impairment has any actual or potential
substantially limiting effect. See RCW 49.60.040(7)(d). In a reasonable accommodation case, the
plaintiff would have to show that they actually had obesity and that their obesity had "a
substantially limiting effect upon the individual's ability to perform his or her job, the individual's
ability to apply or be considered for a job, or the individual's access to equal benefits, privileges,
or terms or conditions of employment" or that the plaintiff had "put the employer on notice of the
existence of an impairment, and medical documentation . . . establish[ed] a reasonable likelihood
that engaging in job functions without an accommodation would aggravate the impairment to the
extent that it would create a substantially limiting effect." Id.
11
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
470, 81 P.3d 901 (2003), rev'd, 157 Wn.2d 214)). We are expressly instructed to
construe the WLAD "liberally for the accomplishment of the purposes thereof."
RCW 49.60.020.
As explained above, a "disability" under the WLAD is defined as "a sensory,
mental, or physical impairment that:(i)[i]s medically cognizable or diagnosable; or
(ii) [ejxists 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). Because there is no question here that BNSF
perceived Taylor as having "extreme obesity," 2 ER at 147, the issue presented by
this disparate treatment case is whether obesity can qualify as an impairment.^ It can.
Obesity is not merely the status of being overweight. Obesity is recognized by the
medical community as a primary disease. The medical evidence shows that obesity
is always an impairment because it is a "physiological disorder, or condition . . .
affecting one or more of the [listed] body systems." RCW 49.60.040(7)(c)(i).
(a) Obesity is a physiological disorder, or condition
First, the medical evidence shows that obesity is a "physiological disorder, or
condition" under RCW 49.60.040(7)(c)(i).
^ The dissent would reframe the question to ask when obesity is a disability under the
WLAD, but the parties in this case do not dispute that BNSF perceived Taylor to have obesity.
The only question before us is whether obesity can qualify as an impairment under RCW
49.60.040(7)(c)(i).
12
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
"Physiological" is not defined by the statute, but Webster's defines
"physiology" as "the organic processes and phenomena of an organism or any of its
parts or of a particular bodily process." WEBSTER'S THIRD New INTERNATIONAL
Dictionary 1707 (2002). Even if a condition must be physiological to be an
impairment, a contention that is disputed in this case, obesity would qualify because
it involves both the organic process and phenomena of an organism—^the excessive
accumulation of fat cells.
Obesity is not only physiological; it is also recognized as a disorder. The
Merck Manual of Diagnosis and Therapy lists "obesity" under section 1,
"Nutritional Disorders." The Merck MANUAL OF DIAGNOSIS AND THERAPY 19
(Robert S. Porter et al. eds., 20th ed. 2018) (hereinafter Merck Manual).^
According to the most recent edition ofthe Merck Manual,obesity may be diagnosed
initially based on BMI, but doctors may also consider waist circumference and body
composition analysis. Id. at 20-21. The fact that obesity is often diagnosed merely
by measuring weight does not mean that it is not a physiological disorder affecting
body systems, just as the fact that diabetes is diagnosed merely by "measuring
plasma glucose" does not mean that it is not a physiological disorder affecting body
systems./<7. at 1253(boldface omitted). Just as type 2 diabetes is a disorder involving
^ The Merck Manual is a "reliable and trusted source for medical information." Krystal
Bullers, Merck Manuals, 104 J. Med. Libr. Ass'n 369, 371 (2016); see also State v. Cissne, 72
Wn. App. 677, 681, 865 P.2d 564(1994)(citing the Merck Manual).
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
an abnormal response to insulin that results in above average blood sugar numbers,
obesity is a disorder involving an abnormal accumulation of fat cells that results in
above average weight. Not all people who are over a certain weight to height ratio
have obesity.
Although obesity is ultimately the result of "a long-standing imbalance
between energy intake and energy expenditure," the medical community has
recognized that the "[cjauses of obesity are probably multifactorial and include
genetic predisposition." Id. at 19. A predisposition toward obesity can be caused by
"endocrine disrupters (eg [sic], bisphenol A [BPA]), gut microbiome, sleep/wake
cycles, and environmental factors." Id. There can sometimes be underlying
physiological disorders that contribute to obesity, such as tumors. Gushing
syndrome, hypothyroidism, or eating disorders, but obesity may also occur in people
without these other disorders. Genetic factors, prenatal maternal obesity or smoking,
and intrauterine growth restriction can all contribute to the development of obesity.
Id. at 20."Heritability of BMI is about 66 [percent]." Id. at 19.
There is an overwhelming consensus in the medical community that obesity
is a disease in and of itself. See Amici Curiae Br. of Obesity Action Coal.(GAG)&
Disability Rights Wash.(DRW) in Supp. of Appellants at 7-13. The American
Association of Clinical Bndocrinologists(AACE)published a position statement on
obesity in 2012 "strongly assert[ing] that obesity is a primary disease." Jeffrey I.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
Mechanick et al., American Association of Clinical Endocrinologists' Position
Statement on Obesity and Obesity Medicine, 18 ENDOCRINE Prac. 642, 644(2012)
(hereinafter AACE Position Statement). The AACE rejected the argument that
obesity is merely "a quantitative excess ofbody fat," explaining instead that"obesity
is an altered physiological and metabolic state, with environmental, genetic, and
hormonal determinants, which results in increased morbidity and mortality." Id.
(emphasis added). The American Society of Metabolic and Bariatric Surgery agrees,
stating that obesity is "a multifactorial disease with a strong genetic component" and
that a number of "hormonal, metabolic, psychological, cultural and behavioral
factors . . . promote fat accumulation and weight gain." Disease of Obesity, Am.
Soc'Y FOR Metabolic & Bariatric Surgery, https://asmbs.org/patients/disease-
of-obesity [https://perma.cc/2KPT-3NTU].
In 2013, the American Medical Association(AMA)also recognized obesity
as a disease. AMA Resolution 420, A-13 (May 16, 2013) (hereinafter AMA
Resolution). The AMA has specific criteria for labeling something a disease—"1)
an impairment ofthe normal functioning ofsome aspect ofthe body; 2)characteristic
signs or symptoms; and 3) harm or morbidity." Id. The AMA found that "there is
now an overabundance of clinical evidence to identify obesity as a multi-metabolic
and hormonal disease state including impaired functioning of appetite dysregulation,
abnormal energy balance[], endocrine dysfunction including elevated leptin levels
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
and insulin resistance, infertility, dysregulated adipokine signaling, abnormal
endothelial function and blood pressure elevation, nonalcoholic fatty liver disease,
dyslipidemia, and systemic and adipose tissue inflammation." Id. The resolution
further explained that"[ojbesity has characteristic signs and symptoms including the
increase in body fat and symptoms pertaining to the accumulation of body fat, such
as joint pain, immobility, sleep apnea, and low self-esteem." Id. This resolution was
introduced by the AACE, the American College of Cardiology, the Endocrine
Society, the American Society for Reproductive Medicine, the Society for
Cardiovascular Angiography and Interventions, the American Urological
Association, and the American College of Surgeons. Id. The AMA noted that the
World Health Organization, the United States Food and Drug Administration, the
National Institutes of Health, the Internal Revenue Service, and one of the largest
health insurance companies, CIGNA, all recognize obesity as a disease. Id. The
AMA explained that although obesity can be caused by life choices, it is still a
disease, just as lung cancer is still a disease even though it can be caused by the
choice to smoke cigarettes. Id. Moreover, even if obese patients successfully lose
weight,"hormonal and metabolic abnormalities" can remain.Id.
The recognition of obesity as a disease further supports our finding that
obesity is a physiological disorder under the statute. The WLAD does not define
"disorder" but Webster'^ defines "disorder" as "a derangement offunction" and "an
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
abnormal physical or mental condition." Webster's, supra, at 652. A disease is
commonly understood to fit within this definition. See AMA Resolution, supra
(describing obesity as a disease involving "dysregulation" and "dysfunction" of
various body systems and "abnormal" functioning of the body). Therefore, obesity
is a physiological disorder under the WLAD.
Obesity is also a qualifying condition. The legislature also did not provide a
definition of "condition," but the HRC did. According to WAC 162-22-020(2)(c),
"[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and
is a reason why the person having the condition did not get or keep the job in
question." Stated another way, "for enforcement purposes, a person will be
considered to be disabled by a sensory, mental, or physical condition if he or she is
discriminated against because of the condition and the condition is abnormal." Id.^
It is undisputed that Taylor did not get or keep the job in question because BNSF
perceived him as obese.
The definition promulgated by the HRC is "entitled to be given great weight
as it is the construction of the statute by the administrative body whose duty it is to
administer its terms. Phillips v. City ofSeattle, 111 Wn.2d 903, 908, 766 P.2d 1099
^ We decided that this definition was unworkable in reasonable accommodation cases,
Pulcino, 141 Wn.2d at 641, and dismissed it entirely in McClarty, 157 Wn.2d at 228. However,
the legislature rejected the McClarty decision's new definition and neither the legislature nor the
HRC defined "condition" differently for disparate treatment cases despite knowing this history.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
(1989)."A court must give great weight to the statute's interpretation by the agency
which is charged with its administration, absent a compelling indication that such
interpretation conflicts with the legislative intent." Marquis v. City ofSpokane, 130
Wn.2d 97, 111, 922 P.2d 43 (1996); also McClarty, 157 Wn.2d at 237-38
(Owens, J., dissenting). The legislature could have defined the word "condition"
differently when it revised the WLAD in 2007, but it chose not to.
The Court of Appeals has also adopted a broad definition of the word
"condition" in this context. See Clipse v. Commercial Driver Servs., Inc., 189 Wn.
App. 776, 358 P.3d 464(2015), review denied, 185 Wn.2d 1017(2016). The Clipse
court was faced with the question of whether the side effects of methadone qualified
as a disability under the WLAD. The court reviewed the statutory definition of
"disability," applied the legislative mandate to "construe the statute liberally to
effectuate its purpose of remedying disability discrimination," and concluded that
"under the plain language of the statute, any mental or physical condition may be a
disability." Id. at 793. The Clipse court explained that Clipse had presented evidence
of a physical condition because he showed "that taking methadone had impairing
physical side effects," and the court upheld the jury verdict in his favor. Id. BNSF
attempts to distinguish Clipse as relying on Clipse's drug addiction. But the court
did not hold that he was disabled because he was a drug addict. The court held that
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
he was disabled because his use of methadone was a condition that "had impairing
physical side effects." Id.
BNSF argues that "[w]eight is not 'an abnormality'" because weight is
intrinsic to human bodies and is not immutable. Br. of Appellees on Certified
Question at 26-27. However, Taylor correctly points out that the question before us
is not whether weight is a condition under the WLAD,but whether obesity is. BNSF
did not just perceive Taylor as over a certain weight. Instead, it was concerned that
his perceived "extreme obesity" posed significant health and safety risks. 2 ER at
147. As discussed above, obesity is a medical condition that not all humans have.
See also AACEPosition Statement,supra, at 644(explaining that obesity is a disease
and is also commonly referred to as a '"condition"')
Amici National Association of Manufacturers(NAM) et al. make a similar
argument, stating that obesity is not an "abnormality" because a large percentage of
the population is overweight or obese according to BMI. See Br. of Amici Curiae
NAM et al. at 6 (explaining that in 2016, 29 percent of adult Washingtonians were
obese according to BMI). However, even if all of these individuals were actually
suffering from obesity, the WLAD tells us that a disability may be "temporary or
permanent, common or uncommon." RCW 49.60.040(7)(b). Therefore,"abnormal"
must refer to something other than statistical frequency and cannot be limited to
immutable states of being.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
Although the word "abnormal" is not defined by the HRC, the medical
evidence shows that obesity is an abnormal condition. The AMA explains that
obesity is a "disease state including . . . abnormal energy balance[]" and ''abnormal
endothelial function" and results in "metabolic abnormalities'"' even after weight
loss. AMA Resolution, supra (emphasis added). Therefore, obesity is a condition
within the meaning of WAC 162-22-020(2)because it is an abnormality and BNSF's
perception that Taylor was obese was undisputedly the reason that Taylor did not
get or keep the job in question.
Therefore, obesity is a "physiological disorder, or condition" under RCW
49.60.040(7)(c)(ii).
(b) Obesity affects several ofthe statutorily listed body systems
Second,the medical evidence shows that obesity is not merely associated with
other health problems but, instead, that obesity itself inherently affects one or more
of the body systems listed in RCW 49.60.040(7)(c)(i). These body systems are
"[njeurological, musculoskeletal, special sense organs,respiratory, including speech
organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and
lymphatic, skin, and endocrine." RCW 49.60.040(7)(c)(i). Amici OAC and DRW
describe in detail how obesity itself affects the cardiovascular or circulatory systems,
the musculosketal system, the lymphatic system, and the endocrine system:
1. Obesity affects the "cardiovascular" or "circulatory" system.
Increased adipose tissue has a direct impact on heart structure
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
and function because it releases proteins that cause heart
inflammation; increases total blood volume and enlarges
portions of the heart; and deposits fat directly onto the heart,
causing it increased strain.
2. Obesity also impacts the "musculoskeletal" system as the mass
inherently associated with increased body fat places increased
stress on the joints - in particular, the weight bom by the knees
- which causes cartilage degradation and leads to osteoarthritis.
3. Obesity affects the "lymphatic" system. Studies show that
increased adipose tissue impairs the flow of lymphatic fluid by
compressing and damaging lymphatic vessels and thus leading
to lymphedema.
4. Obesity also affects the "endocrine" system because adipose
tissue secretes hormones that regulate metabolism, contributing
to insulin resistance and ultimately diabetes.
Br. of OAC & DRW at 18-19(footnotes omitted)(citing published medical studies);
see also id. at 3-5 (explaining other physical effects of obesity and citing studies).
The AMA expressly found that obesity impairs normal functioning of the body.
AMA Resolution, supra. In addition, complications of obesity include many other
medical problems, such as diabetes, sleep apnea, osteoarthritis, infertility, cancer,
skin disorders, and intertriginous infections. Merck Manual,supra, at 20. Because
obesity is recognized by the medical community as a physiological disorder, or
condition, and it affects the normal functions of several of the listed body systems.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
it will always meet the WLAD's statutory definition of "impairment." See RCW
49.60.040(7)(c).^
(c)BNSF's and amici's counterarguments are not persuasive
Amici NAM et ai. argue that we should not recognize obesity as an
impairment because it will have a stigmatizing effect on obese individuals. See Br.
of Amici Curiae NAM et al. at 13-15. However, in this case, BNSF told Taylor that
it would not hire him because it perceived him as having "extreme obesity," and he
could not afford supplemental medical testing. 2 BR at 147. It is difficult to see how
protection under the WLAD will produce more psychological harm than is caused
by companies freely and openly refusing to hire people because oftheir obesity. The
Merck Manual recognizes that "[ojbesity leads to social, economic, and psychologic
problems as a result of prejudice, discrimination, poor body image, and low self-
esteem. For example, people may be underemployed or unemployed." Merck
Manual, supra, at 20. We construe the definition of "impairment" in order to
effectuate the purposes of the WLAD—^remedying and preventing this kind of
discrimination. See Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 500, 325 P.3d
193(2014)("Washington courts construe the WLAD's protections broadly."); RCW
^ The dissent's suggestion that a person can have obesity without it affecting any of the
listed body systems is inconsistent with the medical science. Because obesity always affects
systems of the body, a person who had a high BMI but whose body systems were not affected
would not have obesity and therefore would not be covered by this opinion.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
49.60.020 (instructing courts to construe the WLAD "liberally for the
accomplishment ofthe purposes thereof);see also RCW 49.60.040(using the broad
and illustrative language of"includes, but is not limited to" to define what qualifies
as an impairment under the WLAD).
BNSF also relies on the HRC's published "Frequently Asked Questions and
Answers" to argue that obesity is not a disability. See WASH.STATE HUMAN Rights
CoMM'N, Guide to Disability and Washington State Nondiscrimination
Laws: Frequently Asked Questions and Answers (2012). According to the
HRC:
In Washington State, the Legislature has enacted a broad definition of
disability that increases protections for persons with medical,
psychological, and other impairments. The Washington definition is
different than the definition found in the Americans with Disabilities
Act . . .-it is broader, covers more medical conditions, and is not
restricted to a condition that substantially limits a major life activity.
Id. at 2. However, this guide also explains that "[pjhysical traits such as being left
handed or being short are not disabilities. (Though there are medical and genetic
conditions that cause extreme short stature that are disabilities.)" Id. at 4. BNSF
argues that because weight is a physical trait, it is not a disability under the WLAD.
According to BNSF,"Nobody is described as 'suffering from' their . .. weight." Br.
of Appellees on Certified Question at 7. Again, BNSF confuses the question before
23
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
us, conflating "weight" with "obesity."^ People are described as suffering from
obesity. See, e.g.. Martini v. Boeing Co., 88 Wn.App.442,446,945 P.2d 248(1997)
(mentioning that the plaintiff had been diagnosed as "suffering from chronic
depression, heart disease, and obesity" in a disability discrimination case (emphasis
added)), aff'd, 137 Wn. 2d 357, 971 P.2d 45 (1999). Obesity is not a physical trait.
It is a disease. See supra Section TLB.3(a); see also Equal Emp't Opportunity
Comm'n v. Res.for Human Dev., Inc., 827 F. Supp. 2d 688, 691 (E.D. La. 2011)
(noting that on the plaintiffs "death certificate, the official cause of death listed was
'morbid obesity'"); Merck Manual,supra, at 19("[0]besity and its complications
cause as many as 300,000 premature deaths each year.").
The evidence presented to us shows that obesity is always an impairment
under the WLAD because it is a "physiological disorder, or condition . . . affecting
one or more of the [listed] body systems." See RCW 49.60.040(7)(c)(i). BNSF
argues that we should follow the rulings ofsome federal courts interpreting the ADA
and hold that obesity can be a disability only if it is caused by a separate, underlying
physiological disorder. We decline to do so. The WLAD is broader than the ADA
and offers its own independent protections to Washingtonians.
^ Merely being overweight is not an impairment under the WLAD, but obesity is.
Therefore, plaintiffs making disability discrimination claims must show that their obesity "[i]s
medically cognizable or diagnosable," "[ejxists as a record or history," or "[i]s perceived to exist
whether or not it exists in fact." RCW 49.60.040(7)(a). In reasonable accommodation cases,
plaintiffs must show that they actually have obesity. RCW 49.60.040(7)(d).
24
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
III. CONCLUSION
We answer the certified question as follows—obesity always qualifies as an
impairment under the plain language of ROW 49.60.040(7)(c)(i) because it is a
"physiological disorder, or condition" that affects many of the listed body systems.
Plaintiffs making a disparate treatment claim under the WLAD need not show that
they actually had an impairment, e.g., that they actually were suffering from obesity.
They need show only that their actual or potential employers perceived them to have
a statutory impairment. RCW 49.60.040(7)(a)(iii). Because obesity qualifies as an
impairment under the plain language of our statute, it is illegal for employers in
Washington to refuse to hire qualified potential employees because the employer
perceives them to be obese. See RCW 49.60.180.
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Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5
HjaIajAaJ: d.J'
WE CONCUR:
h,u-
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
No. 96335-5
YU,J. (dissenting) — I agree with the majority that obesity does not have to
be caused by a separate physiological disorder or condition to qualify as an
impairment pursuant to the RCW 49.60.040(7)(c)(i). Majority at 5. I also agree
that obesity, as a physiological disorder or condition, is distinct from weight, which
is a physical trait. See id. at 23-24. And the majority is correct that "[ojbesity is
not merely the status of being overweight," id. at 12, and that there is growing
consensus in the medical community that obesity is itself a disease, id. at 14. But
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 ofthe RCW
49.60.040(7)(c)(i)." Id. at 2.
I would reframe the certified question slightly to ask under what
circumstances, if any, obesity is a disability for purposes ofthe Washington Law
Against Discrimination(WLAD),ch. 49.60 RCW. According to the plain
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
language of the statute, obesity is a disability if(i) the plaintiffs obesity is
medically cognizable, medically diagnosable, exists as a record or history, or is
perceived to exist whether or not it actually does, RCW 49.60.040(7)(a), and (ii)
the plaintiffs obesity impairs one or more body systems listed in RCW
49.60.040(7)(c)(i). This approach avoids a per se rule that could extend WLAD
protections to individuals who are not disabled and avoids the stigma of labeling
all individuals over a certain height to weight ratio as impaired.
A. Defining obesity
The majority states that obesity involves "an abnormal accumulation of fat
cells." Id. at 14. But, as the majority explains, obesity as a disease is more than
"'a quantitative excess of body fat.'" Id. at 15 (quoting Jeffrey I. Mechanick et ah,
American Association ofClinical Endocrinologists'Position Statement on Obesity
and Obesity Medicine, 18 ENDOCRINE Prac. 642, 644 (2012)). Instead,'"obesity
is an altered physiological and metabolic state, with environmental, genetic, and
hormonal determinants, which results in increased morbidity and mortality.'" Id.
(emphasis omitted)(quoting Mechanick et ah,supra, at 644). This begs the
question: At what point does an excess of body fat make an individual "obese"?'
'The parties and amiei have cited to dozens of scientific journals and scholarly articles to
aid our understanding of obesity and its effects on the body. One thing is clear from the
literature—there is disagreement in the medical community on how to measure obesity and what
effects it has on the various systems of the body. Courts can evaluate impairment from obesity
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Taylor v. Burlington N R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
"The National Institutes of Health and the World Health Organization have
both adopted BMI[body mass index] as a criterion for defining obesity." George
A. Bray et ah, The Science ofObesity Management: An Endocrine Society
Scientific Statement, 39 ENDOCRINE Revs. 79, 81 (2018); see also The Merck
Manual of Diagnosis and Therapy 19(Robert S. Porter et ah eds., 20th ed.
2018)("Obesity is excess body weight, defined as a body mass index [greater than
or equal to 30]."). BMI is considered a useful population-level measure of obesity
but has been questioned by some experts as inadequate for diagnosis of
individuals. See, e.g., Nat'l Heart,Lung & Blood Inst., U.S. Dep't of Health
& Human Servs., Managing Overweight and Obesity in Adults: Systematic
Evidence Review FROM THE Obesity Expert Panel 5 (2013)("BMI correlates
fairly well with total body fat on a population basis; however, it has limitations in
predicting excess body fat associated with health risk on an individual basis.");
Louise J. Aronne et ah. Obesity as a Disease State: A New Paradigm for Diagnosis
and Treatment, 9 CLINICAL CORNERSTONE 9, 13 (2009)("[I]ndividuals with similar
BMIs can have vastly different body compositions."); Mechanick et ah, supra, at
645("BMI.. . neglects the extent to which any increase in adiposity adversely
alters physiology, metabolism, and health.").
on an individual basis. But the legislature is the proper body to evaluate all ofthe available
information and make a policy decision on whether obesity is a per se impairment and the
medical factors that should be considered.
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
I
BMI does not distinguish weight associated with muscle from weight
associated with fat. Bray et al., supra, at 82. For example, a professional football
player may have a high BMI because of his weight in relation to his height, but that
weight is associated with muscle rather than fat.^ BMI has also been criticized for
its inability to distinguish body fat distribution, which is relevant to determining
metabolic risk. Id.
To be sure, medical practitioners are cautioned to not rely solely on BMI and
to look to other factors when diagnosing obesity. But those factors do not have the
same type of hard and fast classifications that BMI does and often include looking
at the effect on other systems. See The Merck Manual,supra, at 20-21.
B. Impairment should be evaluated individually
Whether obesity is defined as BMI over 30, an abnormal excess in fat cells,
or some other measure, the WLAD requires a showing that one or more specified
body systems is actually impaired. RCW 49.60.040(7)(c)(i). In many cases, this
requirement will be met by the diagnosis or perception itself.
According to amici, BMI is "only the first step in diagnosing obesity" and
"misclassification is somewhat common." Amici Curiae Br. of Obesity Action
j
Coal. & Disability Rights Wash, in Supp. of Appellants at 5. In addition to body
^ See Angus Chen,IfBMIIs the Test ofHealth, Many Pro Athletes Would Flunk, NPR
(Feb. 4, 2016, 12:36 PM), https://\vww.npr.org/sections/health-shots/2016/02/04/465569465/if-
bmi-is-the-testrof-health-many-pro-athletes-would-flunk [bttps://perma.cc/5F5X-9W2U].
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
composition,"clinical effects of obesity on health, feeling, and functioning are
I
considered" as part of a complete diagnosis. Id. at 6. Thus, a medical diagnosis of
I
obesity may already include a showing that a particular body system is affected. If
not, the plaintiff would be required to provide additional evidence to meet the
requirements!of the WLAD. See generally Henry C. Lukaski, Commentary: Body
Mass Index P^ersists as a Sensible Beginning to Comprehensive Risk Assessment,
43 Int'l J. Epidemiology 669,670(2014)(discussing the "metabolically healthy
obese").
In this case, Casey Taylor was diagnosed as extremely obese by BNSF's
physician based on his BMI. 2 Excerpts of Record(ER)at 147. His obesity was
perceived to affect "other health conditions," including sleep apnea and diabetes.
Id. at 164. Sleep apnea affects the respiratory system, and diabetes affects the
endocrine system. Thus, Taylor's obesity was (a) medically diagnosed or
perceived an'd (b) perceived to affect at least one or more body systems.
C. Implicatipns beyond employment
j
We typically provide narrow answers to certified questions from federal
courts. See, \e.g.. Hill v. Xerox Bus. Servs., LLC, 191 Wn.2d 751, 760, 426 P.3d
i
703 (2018). jThe court's broad holding that obesity always qualifies as an
impairment under the plain language of the WLAD has potentially far-reaching
consequences beyond those considered in this case.
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Taylor v. Burlii^gton N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
As an example, RCW 49.60.215 makes it an unfair practice "to commit an
act which directiy or indirectly results in any distinction, restriction, or
discriminaticjn ... in any place of public resort, accommodation, assemblage, or
amusement" because of the presence of a disability. A place of public
accommodation must reasonably accommodate "the known physical, sensory, or
mental limitations of a person with a disability." WAC 162-26-080. But unlike
I
I
reasonable accommodations in the employment context, no showing of actual
1
impairment or substantially limiting effect is required. See majority at 11 n.4; see
also RCW 49.60.040(7)(d). In guidance to operators of places of public
accommodation,the Human Rights Commission explains that a "disability may be
obvious, such as a person who uses a wheelchair" or that a person "may need to
inform you of the disability." WASH. State Human Rights Comm'n, Guide to
Disability and Washington StateNondiscrimination Laws:Frequently
Asked Questions and Answers 13 (2012). An operator making a good faith
attempt to comply with the law risks offending some patrons by assuming they are
disabled because oftheir weight or risks opening themselves up to liability to
patrons who claim their disability should have been "obvious" from their
i
appearance. n I am concerned about the uncertainty and the far-reaching impact of
the court's decision.
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Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)
D. Conclusion
Obesity is a disability for purposes of the WLAD when (a)the plaintiffs
obesity is medically cognizable, medically diagnosable, exists as a record or
history, or is perceived to exist whether or not it actually does and (b)the
plaintiffs obesity impairs one or more body systems listed in ROW
49.60.040(7)(c)(i). The majority's answer to the certified questions, that obesity is
always an impairment for purposes of the WLAD,ignores the need for an
individualized inquiry. Therefore, I respectfully dissent.
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Taylor V. Burlington N. R.R. Holdings,'^o. 96335-5
Yu, J. (dissenting)
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