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Certification From United States Court of Appeals For Ninth Circuit in Taylor v. Burlington Northern Railroad Holdings, Inc.

Supreme Court of Washington, En Banc

July 11, 2019

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,
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.

          FAIRHURST, C.J.

         The Washington Law Against Discrimination (WLAD) generally prohibits employers from discriminating against an employee because the 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," "[e]xists 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, if any, 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, Inc., 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 of the WLAD.[1]


         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 exam found that Taylor "[m]eets 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.

         In 2010, Taylor sued BNSF and Burlington Northern Railroad Holdings Inc.[2]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 summary judgment, 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.

         II. 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 "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), [3] 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 RCW 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 of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001).

         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." RCW 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) [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).

         "Impairment" includes, but is not limited to:

(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
(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 of this 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 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.

         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 of the 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. & 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 of the 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 of the federal act." Laws of 2007, 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 disorder, or condition .. . affecting one or more of the [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 ...

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