The Washington State Supreme Court recently ruled that it's illegal to refuse to hire someone because they are overweight but otherwise qualified for the position.
By a 7-2 vote, the court ruled that obesity is protected by the Washington Law Against Discrimination, the state's anti-discrimination law.
"Because obesity qualifies as an impairment under the plain language of our [state] statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese," Justice Mary Fairhurst wrote for the majority.
She noted that obesity "is recognized by the medical community as a 'physiological disorder, or condition.'"
Plaintiff Casey Taylor sued the BNSF Railway Company after it withdrew a conditional job offer, telling him he did not qualify for the job because his body-mass index was too high.
Taylor, a former Marine who, at the time, was 5-feet-6 and weighed 256 lbs., declined his prospective employer's offer to take a series of tests at his expense to determine the cause of his high body-mass index, or lose 10% of his weight and keep it off for six months.
This state court decision joins a small number of other state and federal district courts that have held that extreme obesity is an Americans With Disability Act impairment even without evidence of an underlying physiological disorder or cause.
So in the state of Washington, obesity may constitute an impairment if the employee's weight is outside "normal range" and affects one or more bodily systems.
In contrast, the majority of courts, including the 2nd Circuit that covers Connecticut, have held to a narrower interpretation of the ADA—that obesity, by itself, does not qualify as an impairment.
A protected disability must be more than a physical characteristic. The presence of a physiological disorder or condition distinguishes a disability from a mere physical characteristic. Obesity, to be a protected disability, must be outside the "normal" range, and a result of a physiological disorder.
As this case illustrates, states are free to apply a broader, more protective/employee friendly standard of discrimination law than the ADA would dictate.
At this time, neither the Connecticut Commission on Human Rights and Opportunities nor state courts have interpreted the ADA or the Connecticut Fair Employment Practices Act to cover obesity as a protected disability, without evidence that it is due to an underlying physiological condition.
Nonetheless, employers are advised to be cautious in employment decisions and policies, to take steps to minimize weight-related bias, and to be open to exploring workplace accommodations for overweight employees where needed.
Another example of a state extending workplace discrimination protections beyond what is currently the standard under federal law arose several weeks ago in California, which became the first state to outlaw hair discrimination in the workplace.