Monday, September 17, 2018

Taylor v. BNRH (9th Cir. - Sept. 17, 2018)

It makes total sense to certify this question to the Washington Supreme Court.  Federal and state courts are split on whether (and to what extent) obesity is a protected "disorder" under the ADA or  state law equivalents.  Moreover, Washington's state law equivalent is almost always interpreted more broadly than analogous federal or state statutes (reflecting, of course, the left-of-center nature of that particular jurisdiction).  Given these facts, rather than speculate, it makes sense to ask the Washington Supreme Court directly.

For whatever it's worth, on the merits, I think that the EEOC (and Montana Supreme Court) take the right approach.  Deviations in weight that are "normal" shouldn't qualify.  It's not a protected class to be six foot tall and, say, 170 vs. 200.  Not actionable if an employer, say, hires one over the other.

But once you're an outlier, that may well constitute a disability.  Something easily satisfied here.  The plaintiff "weighed 256 pounds at a height of 5-feet, 6-inches, yielding a Body Mass Index (BMI) of 41.3. A BMI over 40 is considered “severely” or “morbidly” obese."  And the railroad made everyone with a BMI over 40 pay for various tests (which the plaintiff here couldn't afford).  That activates the statutory protection, in my view.  Or should.

I recognize that other courts think that it matters whether the obesity has a physical or physiological cause.  Not me.  Drawing that line seems too tough. Whether you're 256 because you really like to eat (and/or not exercise) or because you "need" to eat (or "can't" exercise) doesn't matter to me.  The fact is you're 256, and that makes it tough for you (at 5'6") for do a variety of life events -- and subjects you to a certain reaction by a segment of the population.  That's what matters to me.  Not whether we can effectively "isolate" a particular "cause" of why you weigh what you do.

But we'll see what the Washington courts say.  I suspect they may take a view similar to mine, but who knows.