Obesity

Washington Supreme Court Says Obesity Is a Disability

"It is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese."

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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 Institutepoints 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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    Kulbhushan Jadhav Verdict by International Court Of Justice(ICJ)

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  2. “The two judges who disagreed with their colleagues on this case noted concern that the state’s obesity definition was too broad”

    Broader than the losers too fat to get a job?

    1. They’re expanding the definition of “disabled”, in employment law, to include most of the population. At which point it becomes ridiculous, just as other forms of discrimination law (and their basis, intersectionalism) already are. Beyond the very short term this will not produce better outcomes for fat or disabled people; it will merely make decision-making by employers even less transparent than it is now.

      The right way to help disabled people get jobs is, first, to eliminate the minimum wage (which was, truthfully, touted as a means to force handicapped people out of the job market by the Progressives campaigning to enact it in the 19-teens).

      And second, the provisions in the tax code that push employers to provide health insurance (and thus reward an employer for refusing jobs to people with bad health) need to go away. This will have the side benefit of making health services better and cheaper, because health spending decisions will be made by the consumer rather than by a third party which is not affected by the quality of care.

      1. If everyone is a protected class, then doesn’t that destroy the protection of being in said class? You can’t say they discriminated against you if they replace you with another protected person.

  3. Your mama’s so fat I gave her AIDS.

    1. Your mama’s so fat that Neil DeGrasse Tyson demoted Jupiter.

      1. Your mama’s so fat, I can’t breath!

        1. Your mama’s so fat, the scientific “consensus” is that it is her swimming in the sea during beach visits—not global warming—that is responsible for observed sea level rise!

          1. Your mama’s so fat she has her own gravity well.

  4. 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 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.
    So under the ruling the company can still force him to pass the physical fitness test?

    1. If such a test is relevant to the job in question, I would assume so

      1. I assume there are physical requirements due to the field work involved in installing and maintaining the equipment.

      2. I’d assume BNSF is unionized so the next question is “Can they fire an existing employee doing that job for gaining weight?”

    2. So under the ruling the company can still force him to pass the physical fitness test?

      My personally desired outcome; they can and he appeals that and wins that decision too. Then he’ll literally be so fat that the SCOTSOW had to extend legal protection to him… twice!

    3. being injured and disabled myself, I was forced to undergo a “functional capacities evaluation, a two day intensieve “”what can this guy DO and for how long”, to determine whether I was pysically able to perform the tasks commonly associated with a specific job type for which workmen’s comp declared I had skills. In that case, it was to their benefit that I be found “able to perform” because then I was “employable” and they could cut my compensation payments. So the examiner fluffed it and “proved” I could physically performo to standards.

      Seems in this case fat boy shuold be required to undergo the same type of evaluation to see whether he can physically perform to the standard required for the job. If Big Boy would have to maneouvre about in the engine compartment of a railroad locomotive but is too thick to sqeeze through some of the passages inside thet locomotive, I’d say that BNSF have every right and in fact an obligation to not hire him until he makes himself smaller.

      Since the corrupt Supreme COurt in that state have decided the guy IS employable doing THAT job, he is NOT disabled.

      in that case, after THEY (the Supremes) mandate his hiring by this terrible decision, will they also find in his favour when BECAUSE of is “nonexistant” disability he is injured and unable to work……… what side will they take THEN, those Supremes?

      Washington is one of the most wretched states when it comes to being hard on the businesses that generate much of the tax revenue needed to make the economy viable.

  5. 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…”

    Good news for the state’s police departments.

    1. no, good news for the regular folks who will soon enough be able to easily outrun and outfight the PIGGY obese coppers the cities will be FORCED to hire. Ha ha hah, the meme about coppers and their donuts making them too fat to get out of their patrol cars will become reality.

  6. “it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese,”

    Hooters restaurants hardest hit.

    1. That would lead to a drawn-out lawsuit. Hooters could certainly make a good case that a waitperson’s beauty is a necessary qualification for working there. So I hope they’d win, but would bet the other way.

  7. 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.

    Improvise, adapt and overcome.

    1. Nope. This was his very reason for applying for the job. He prolly had that lawyer on retainer and was just venue shopping for the job denial to file.

      If I were in HR at BNSFRR I’d hire the guy alright. Assign him duties just like he weighed in at a svelte 165 lbs, then fire him for non-performance. Use his own silly corrupt game to best him.

  8. Harrison Bergeron, here we come.

    1. The double-barreled 10 gauge shotgun is the most unbelievable part of the story.

  9. “Because the diagnostic line between ‘overweight’ and ‘obese’ is a function of an individual’s weight in relationship to their height…”

    IT’S ABOUT TIME THE BMI IS CODIFIED INTO LAW.

  10. BMI is such a crock measurement. At the height of his physical fitness, Arnold Schwarzenegger, with less than 5% body fat, would have been classified as “morbidly obese.” It’s time for that stat to go away.

    1. BMI is easy to measure and a good predictor of actual obesity in the vast majority of Americans. Exceptions like body builders are trivial to recognize and medical professionals take that into account.

      FWIW, Schwarzenegger’s BMI was never in the “morbidly obese” range; he would have had to weigh over 310 pounds for that.

      1. It’s a slightly more objective rule of thumb. It’s not a great predictor of anything at an individual level and doctors may make exceptions but the BMI and law based upon it does not.

        Arnold wasn’t “morbidly obese”, but he was “obese”. Jón Páll Sigmarsson “was” and, despite being “morbidly obese”, and a world-champion athlete, he still died of heart disease. Of course, the heart disease was congenital and arguably exacerbated by both his exercise and PED use but, you know, just another dead morbidly obese guy as far as the BMI/law is concerned.

        1. There is no “law based on BMI”. The guy was treated as morbidly obese (both by the employer and by the law) because he almost certainly was, not because he crossed some numerical BMI threshold with no other information. Once you determine that someone is not an athlete (visual inspection, “what is your job”, “what is your exercise regime”), BMI is an excellent predictor of morbid obesity.

      2. I think he was 285lbs at a height of 6’ 2” at his peak. Probably weighed more when not in contest shape.

        But it’s not just bodybuilders. Most any athlete in a strength sport would at least rank as overweight. What is so hard about doing a body fat measurement instead of stupid BMI?

        1. Using your numbers, that converts to 36.7, just shy of morbidly obese. As you said, he probably weighed more when not in contest shape, but probably not the 310 to push him over the line.

          The biggest issue is that all of these measurements, from body fat percentage to BMI are notoriously bad at predicting individual health outcomes outside of the highest extremes. You then have the well known fact that dropping a weight category is absurdly difficult (on the order of quitting smoking or drinking, and for some people actively impossible without extremely health-damaging activities like starvation dieting).

          If it did not affect his ability to do the job, then why was it even being measured?

    2. Beefcake!

    3. Agree completely. At a recent health screen my cholesterol numbers were well with range, as was my fasting blood sugar. My BP was 117/70. Yet my BMI listed me as obese (5’8″/200#). Now am I overweight yes. But I am also able to run a half marathon and bike over 40 miles in a ride. So I say relying on BMI is BS.

  11. So is physical capability a requirement to be qualified for performing the job or not? The quotes do not indicate if that was part of any argument or not.

  12. 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.

    Being a marine, it was probably all muscle! /sarc

    1. Cranial muscle?

  13. So employers are not allowed to discriminate against someone who is, by literal definition of their descriptor, not able to perform the job? I’d be upset if it wasn’t such perfect irony.

    1. I don’t see that being stated anywhere, the decision seem to hinge entirely the person being obese *AND* “able to properly perform the job”

  14. “You can’t complain about that decision; that battle was lost in 1964 and you’re all a bunch of racists!”

    /sarc

    1. Like all jokes, there’s truth to this. The civil rights movement opened the door to government intruding into private companies’ hiring practices. Although I think it’s wrong to discriminate against someone based on race, something like this was inevitable. Which begs the question that although it did some good, was it worth it since the civil rights movement is anti private property rights if you look at it from the rights of the business owner who has less control over his own business. Doubly so in the modern ultra PC area.
      Besides, obesity is a choice, unlike race or gender. Some people are more predisposed to being skinny or fat biologically or culturally, but for the most part it’s about choosing to not eat right and choosing to not exercise enough. And I’m a fat guy, I’d know.
      Also, this sounds like a somewhat physical job. Not being in good shape could certainly effect his job performance, so the BNSF employers could be acting rationally in their business interest and not just being jackasses. The day is rapidly approaching when I go to a strip club, there will be a fat, nasty tranny who was hired only because they didn’t want a discrimination suit. PC compliance is rapidly becoming more important than what value a candidate brings to an employer.

      1. The day is rapidly approaching when I go to a strip club, there will be a fat, nasty tranny who was hired only because they didn’t want a discrimination suit.

        And shortly thereafter it will be illegal for customers to not accept and pay for a lap dance if she/he/it/they/ze offer one.

        1. Probably right. We’re already sacrificing employer’s right to select their own hiring criteria, even if the discrimination is based on whether the applicant can perform a job property and not just being bigoted or xenophobic (which I’d still support because the private property rights of everyone including assholes are more important than creating a nicer society). I’m sure 50 years ago nobody thought we’d get to the level of ridiculousness in this article. But taken even further, consumers will eventually get sued for not purchasing a good or service if there is even a suspicion of PC unfriendly criteria in the purchasing decision.

          1. Being a mechanic I was asked some years back to work on a Renault econoy car. Had some issues with parts being wrong, in spite of my providing all the magic numbers from the build plate. Wasted a few hours I could not bill. Month later it happened again, different car of same model. More time wasted, and lots of fuel back and forth to get correct parts. Coupla months later, a rerun, again, different car/customer/
            I decided “no more Renults. Customers will henceforth be advised to take them to the dealer, I will not touch them again.”.

            I suppose if I did that again someone would sue me for being xenophobic, francophobic, racist, homophobic, and of practiscong illegal discrimination. Instead of announcing I refuse to work on those FroggoMobiiles, I would be forced to, once I know the poor sap went and bought his Renault, simply not have an open slot in my shop schedule to book it in until late next month, or quote a price so high they’ll gag and run off to the dealer of those infernal things…… but NEVER refuse to work on it because of what it IS. Even if the owner THINKS he’s really got a Volvo spelt strangely.

  15. 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

    Au contraire. Such hiring will enable further lawsuits for those very people.

  16. Will we hear the complaint that unless they’re bigoted against fat people, libertarians should confine themselves to making the philosophical case for legalizing race discrimination?

    Seriously, if suspect classifications can be multiplied at will, and libertarians are only allowed to respond by making a “totally principled” stand to legalize race discrimination, then in practice that neutralizes libertarians.

    Which in practice helps leave the field clear for statists creating more and more laws against “invidious discrimination” in the private sector.

    1. then in practice that neutralizes libertarians

      Are you suggesting that libertarians are some sort of special class when it comes to cries of racism? 🙂

  17. I imagine Morrissey sitting in an HR office telling an applicant “you’re the one for me fatty”

  18. >>>because the employer perceives them to be obese

    strange choice of words how dafuq else does perception work?

  19. […] July 17, 2019 Kimberly Rogers-Brown Supreme Court, WHITE HOUSE Leave a comment Link to original article […]

  20. So who will have the liability when this guy croaks on the job because he is too damn fat? The Judges?

  21. Obesity is a disability?
    There would be no disability of these people would have the willpower to put down the damn fork.
    What will be the next form of disability for the State of Washington?
    Farting in crowded elevators?

    1. A self-inflicted disability is still a disability, I don’t think any state actually makes a distinction like that

    2. There are diseases where obesity is a consequence or a side effect. There are diseases where the medication required for cure also has weight gain as a side effect. And the current federal regulations have zero to low incentive for prevention .vs treatment forever.
      But yeah, a lot of it is self determined. But so is the expense of a sex change operation, and we cough up the bucks for that.

    3. I have a cousin who cannot get under 250 lb. That’s morbidly obese. She works out in a gym for 10 hours a week and eats barely 1000 calories a day. This is actually quite common.

      1. She’s most likely eating far too little food and doing the wrong exercises. Get a trainer.

        1. And maybe eating just a few extra snacks when nobody is looking.

      2. If she’s working out 10 hours a week and eating 1k calories per day while weighing 250 lbs, then something is seriously wrong. Not medically, as that’s pretty much impossible, but with what’s she telling you. Medical complications can cause difficulty with weight control, but it’s nowhere near that drastic. Most likely your sister is lying about how often she works out, how intensely she works out or grossly underestimating her caloric intake.

        1. The “Lite” ice cream doesn’t count? (Most “Lite” foods have removed some fat and added a lot of sugar.)

      3. Metabolically speaking, that’s impossible. Ergo, the data is wrong.

  22. Somewhere in a donut shop, Trigglypuff rejoices.

    So hey – do skinny people next – free the anorexics!

  23. This only applies in the case that a person’s weight does not affect their job performance. To give an extreme example, a no-armed man cannot use disability protection to get a job that requires him to climb ladders.

    This pretty much states that if there is no good reason that weight is a requirement, it cannot be a requirement. Given that BMI is a very bad measure of fitness, and a worse measure of health (statistically being underweight is far more likely to be deadly than severely overweight), this actually means that you can’t exclude them because “fat people are gross” or other childish issues.

    I am of split minds on this. In the specific circumstance, the job was obviously being extremely intrusive (lose 10% of his weight to keep a job that he was otherwise qualified for and able to do). Assuming that he is 6 foot tall, that BMI means he weighs 300 lb. That’s big, but not to the point that it impairs movement. On the other hand, losing 30 lb in a crash diet is known to be disastrous to health in both short and long term. The job is obviously in the wrong to be making that kind of demand of its people. My boss has NO CLAIM on my body.

    What concerns me is generalizing this judgement to the world at large. If they had made the argument from freedom, that a company cannot demand physical qualifications outside of the requirements from the job, I would agree. However, I am worried about the side-effects of this ruling. It could be far-reaching.

    1. He also had back and knee problems, which may be actual disabilities. The knee problems were almost certainly either caused or aggravated by his weight – at a BMI of 40, you’re exceeding the design load on your joints. The back problem may have been aggravated by his weight.

      Although I don’t know the details of the Electronics Technician job with a railroad, as fairly conservative businesses dating back to the first powerful steam engines, railroads tend to take for granted that their employees can lift fairly heavy weights and climb around in equipment that is taller than them. It’s quite possible that the biggest problem here is that BNSF failed to document that the job requirements did not allow knee or back problems.

      OTOH, I think it’s unlikely that he was too fat to fit into the work spaces, unless these have shrunk since my grandfather retired in the early 1970’s. My grandfather hired on with the Burlington and Northern (now part of BNSF) as a young man, first as part of the gang that carried new rails from the flatcar to where they would be installed (because 50 men with rail tongs were cheaper and faster than getting one crane into position), and rose to signals maintenance and finally to the chief of Signals over the BN lines in several states. (At the time, the signals were controlled by thousands of relays, with no electronics – but it was obvious that this would change gradually, if only to avoid the need to clean all those relay contacts.) The last time when I visited him before he retired, he was chuckling about the accountants putting a spy on one of his technicians. The guy always turned in receipts for two meals for every time he ate on the road. So Accounting sent out someone to spy on him – and he did indeed order two meals and eat them, which was allowed by the expense account rules. So being _big_ must not have been a problem if the person was physically fit.

  24. Obesity isn’t a disability because you don’t choose to be obese. I say this as someone who is currently medically obese (6’0″ 238lb). Some of us may have actual disabilities or genetic predisposition to obesity, but the obesity itself is a result of choices. You can always do something about it. Eat less. Exercise 3-4 times a day. Eat more intelligently. Count your calories. All the things I’m doing right now work and it’s absurd to suggest that we should pay even more as a society to accommodate people who let themselves rot.

  25. Good luck trying to prove you were not offered a job due to being overweight. No employer with an ounce of sense would ever actually say that, much less put it in writing. Just like they would not say a candidate is too white or too dark, too gay or two straight, the wrong age or sex, etc.

    There is a reason forms letters are always vague, thanking you for interviewing, letting you know that, tough decision as it was, they ultimately chose the candidate they think is most suited (i.e., not you), but that they wish you luck. To say otherwise is to invite a whole host of problems for them.

  26. Soon the NBA will be forced to hire a short, white, nearsighted skinny, mid-forties guy like me to play pro ball!

  27. There are lots of jobs where fitness is essential. A 400lb roofer? Not such a good idea. Cops should be able to chase down a criminal. Nurses need to be able to lift sick people. But I would just love for this law to be applied to runway models.

    1. Disability hiring does not apply when a genuine job qualification is affected. If you cannot lift a certain amount, you cannot get a construction job. They even allow attractiveness as a qualification for anything in “entertainment”, including servers at certain restaurants.

      The problem was that this man, who at 300lb was denied a job as an electrician despite being able to do the job.

      1. Or that the BNSF chose the wrong way to demonstrate that he could not do the job (according to a court with a strong leftist bias).

  28. So the fundamental whining logic seems to be that anyone who wants a certain job has to be hired, and if employers suggest a physical or mental issue might be a problem, then that becomes a protected trait–with double legal incentive to hire the disqualified.

    I want Washington to declare that blind people can (and must) be hired as commercial pilots. Can’t fuck up air travel any more than Boeing has.

  29. […] Washington Supreme Court rules ‘obesity’ is a disability. […]

  30. Stripper poles hardest hit.

  31. […] writing in Reason, Ben McDonald said, “This massive increase in the number of people who are part of a […]

  32. And then when the guy gets hurt on the job, he’ll sue the company that hired him. California is one big nuthouse filled with liberal and Marxist deadbeats.

  33. Sorry, wrong state. Washington is just as bad.

  34. This is such BS. People should be able to discriminate against people for physical capabilities in any way they want.

    An example. I’m not fat, but I’m not a huge dude. I’m a couple inches below average height, and don’t work out… If I were to apply to a job that required tons of physical strength, a company would be RETARDED to hire me. Why? Because there is an almost 100% chance they will get somebody who is bigger and stronger who will apply.

    I might be able to just barely squeak over the line and perform duties at the minimal level required, so lugging 50 pound boxes around… But I would probably get half as much shit done as a guy who is 6’2″ and stacked. They should be able to not hire me, even though I’m technically well within the normal range of physical capabilities, simply for not being THE BEST CANDIDATE FOR THE JOB.

    This world just keeps getting more and more mad. When we finally have the snap back to reality, snowflakes feelz are gonna get hurt REAL bad.

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