For a long time, obesity was perceived as a personal and moral failing — the result of poor decisionmaking by an individual.1 But over the last two decades, the medical community has changed its views on obesity and has begun to recognize it as a disease.2 Recently, in Taylor v. Burlington Northern Railroad Holdings, Inc.,3 the Washington Supreme Court held that obesity is always an impairment under the Washington Law Against Discrimination4 (WLAD), significantly expanding disability protections in the state.5 A month before Taylor, the Seventh Circuit had interpreted similar language in the Americans with Disabilities Act6 (ADA) to hold that obesity is not an impairment.7 By embracing medical consensus and adopting a per se rule that classifies obesity as a disability, the Taylor court adopted the best approach to combat obesity discrimination, and one that federal courts ought to follow.
In 2007, BNSF Railway Company (BNSF) offered Casey Taylor a position as a technician, contingent upon a physical exam.8 The exam determined that Taylor met the “minimum physical demands of the essential functions” of the job,9 but with a body mass index (BMI) of 41.3, Taylor was deemed severely obese.10 BNSF informed Taylor that it could not determine whether he was physically qualified for the job due to health risks associated with obesity, but it offered to reconsider if Taylor paid for medical testing or if he lost ten percent of his weight and kept it off for six months.11 In 2010, Taylor and his wife sued BNSF12 in state court alleging that BNSF’s refusal to hire him was based on a perceived disability — obesity — in violation of the WLAD.13 BNSF removed to the District Court for the Western District of Washington.14
In the district court, BNSF moved for summary judgment, arguing that obesity should not be recognized as a disability “unless caused by a physiological disorder.”15 The WLAD defines “disability” 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.”16 Since BNSF had determined that Taylor was obese, the issue turned on whether obesity was an impairment under the statute.17 The definition of an impairment “includes, but is not limited to: [a]ny physiological disorder, or condition . . . affecting one or more of the [listed] body systems.”18 The statute does not define “physiological disorder.”19 Finding no Washington law on the issue, Judge Robart turned to federal precedent interpreting the ADA, which “Washington courts find . . . persuasive in interpreting the WLAD.”20 The court then sided with the majority of federal courts in holding that obesity is not an impairment — and thus not a disability — unless it is caused by an underlying physiological condition.21 Ultimately, the court dismissed the case with prejudice,22 and Taylor appealed.23
A panel of the Ninth Circuit found itself unable to determine the issue on appeal.24 The court discussed various authorities that may help answer the question,25 and it certified the following question to the Washington Supreme Court: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD] . . . ?”26
The Washington Supreme Court answered that obesity is always an impairment under the WLAD.27 Writing for the court, Chief Justice Fairhust28 found that obesity is a “physiological disorder, or condition” affecting several statutorily defined body systems, and thus is an impairment under state law.29 The court began by defining the relevant statutory language30 and summarizing the legislative and judicial history of the WLAD,31 concluding that the legislature was intentional in adopting a broad definition of disability, and that it explicitly rejected the notion that the WLAD should be constrained by the ADA.32 Finding a broad legislative mandate and relying extensively on medical evidence, the court then determined that obesity is a “physiological disorder, or condition” for WLAD purposes.33 First, the court held that obesity is physiological in nature, according to the Webster’s definition of “physiology,” and that it is a medically recognized “disorder.”34 Citing an amicus brief, a position statement of the American Association of Clinical Endocrinologists, and a resolution of the American Medical Association,35 the court also found “overwhelming consensus in the medical community that obesity is a disease in and of itself.”36 This consensus further supported the conclusion that obesity is a physiological disorder under the statute, given that a “disease is commonly understood to fit within” the dictionary definition of “disorder.”37 Further determining that obesity is a condition for purposes of the WLAD,38 and that it affects several of the statutorily defined body systems,39 the court concluded that obesity is an impairment.40
Finally, the court addressed counterarguments raised by BNSF and amici. First, the court rejected the argument that recognizing obesity as a disability would have a stigmatizing effect on people living with obesity.41 Second, it addressed the argument that weight is merely a physical trait and not an impairment, responding that: “Obesity is not a physical trait. It is a disease.”42
Justice Yu43 dissented.44 First, she listed the points on which she agreed with the majority: obesity does not have to be caused by a separate physiological disorder or condition to be an impairment; obesity is a physiological disorder or condition and not merely a physical trait; and obesity “is not merely the status of being overweight.”45 Then, pointing to disagreements within the medical community about how to measure obesity46 and to the statutory requirement that “one or more specified body systems [be] actually impaired,”47 she criticized the majority for establishing a per se rule that does not require individual inquiry.48 Finally, she found that the court’s broad holding may have unwanted implications beyond employment — specifically that people attempting to comply with the law might “offend[] some patrons by assuming they are disabled because of their weight or risk[] opening themselves up to liability to patrons who claim their disability should have been ‘obvious’ from their appearance.”49 Ultimately, Justice Yu argued that obesity is a disability only if it “impairs one or more [statutorily listed] body systems.”50
Obesity discrimination is a pervasive and underexplored issue that the courts can and should address. By embracing the medical consensus, courts can recognize that obesity is a complicated medical condition and not a personal failing, thus fighting prejudice. Though this approach is controversial because it may entrench a sense of “otherness,” it remains the best way for courts to combat prejudice and discrimination. Admittedly, the category of “obese” is imprecise, and some people who are obese may not be impaired, but the Taylor court’s approach remains preferable to an individualized inquiry that would place an undue burden on plaintiffs. Though the federal courts resist this approach, medical consensus does have a role to play in interpreting disability antidiscrimination statutes. By embracing medical consensus and adopting a per se rule extending antidiscrimination protections to people living with obesity, the Taylor court adopted the best approach to combat obesity discrimination, one that the federal courts ought to follow.
Weight bias51 remains a pervasive stigma, with a 2008 study reporting that over forty percent of people with a BMI of forty or above have faced perceived discrimination due to their size.52 In the words of one woman living with obesity: “Society expects you to feel inferior if you are overweight.”53 Disability antidiscrimination laws can and should serve to combat obesity discrimination. As the majority in Taylor pointed out, the legislature “intended to adopt a broad and expansive definition of ‘disability’” in the WLAD in order to protect people with medical impairments from discrimination.54 Though the ADA does not use the same broad language, it was likewise motivated by a recognition that “discrimination against individuals with disabilities persists in such critical areas as employment”55 and that, unlike other protected classes, “individuals who have experienced discrimination on the basis of disability have often had no legal recourse.”56 These rationales apply with equal force to obesity discrimination. First, the medical community has recognized obesity as an impairment that is largely out of an individual’s control.57 Second, obesity discrimination is especially significant in the employment context, where those living with obesity are less likely to be hired, earn less than their peers, and are more likely to be reprimanded.58 Third, like the discrimination that the ADA sought to eliminate, obesity discrimination currently lacks sufficient avenues for redress in American courts.59 Therefore, the values underlying the ADA and the WLAD weigh in favor of extending statutory protection to victims of obesity discrimination.
The best approach to reducing obesity discrimination is to follow the medical community’s lead by recognizing obesity as a medical condition. Though any antidiscrimination protections would be beneficial, medicalizing obesity could also reduce prejudice against obese people. The World Health Organization classified obesity as a disease in 2000,60 and the American Medical Association followed suit in 2013.61 Recognizing obesity as a disease has also involved recognizing its multifactorial causes, “including genetic, environmental, physiological, and psychological factors.”62 Acknowledging these factors could diminish obesity bias by establishing that obesity is a disease largely outside of an individual’s control.63 Indeed, “[o]ne of the best-established relations in the [field] . . . is that attributions of controllability — seeing fat people as responsible for their weight — is an excellent predictor of prejudice.”64 Therefore, by embracing the “overwhelming consensus in the medical community that obesity is a disease in and of itself,”65 the Washington Supreme Court took a significant step in combatting obesity discrimination.
Though the medicalization66 of obesity may reduce explicit prejudice, it remains controversial as it may preserve or entrench implicit biases. Professor Abigail Saguy argues that the term obesity “implies a medical frame”67 that “reinforces . . . unwanted difference”68 because even if it does not place blame, it “label[s] a person as biologically flawed.”69 In contrast, Professor Jeffery Sobal argues that the medicalization of obesity is a solution to prejudice and that whatever stigma or moral judgment remains around obesity today is “a vestige of the overwhelming interpretation of obesity in the past as a moral and not medical problem.”70 Sobal and Saguy’s arguments can be reconciled — medicalization may reduce explicit obesity discrimination grounded in moral blame while entrenching an implicit sense of “otherness.”71 Though the implicit biases caused by the medicalization of obesity are incredibly prevalent in the medical community,72 leading to some harmful effects for those living with obesity,73 the courts are not properly equipped to handle them. The law is much too blunt a tool for this task. Embracing the medicalization of obesity best allowed the court to tackle what it is equipped for: preventing explicit prejudice and discrimination.
Not everyone who may be classified as obese will be impaired, but the court’s per se rule remains appropriate because the alternative — an individualized test — would place an undue burden on plaintiffs. In her Taylor dissent, Justice Yu was primarily concerned with the need for an individualized test that would limit stigma.74 Instead, she would require that anyone suing for discrimination due to obesity prove that their obesity impairs one or more of the statutorily defined body systems.75 Part of the reasoning behind Justice Yu’s concern is that BMI is an imperfect measure of obesity and its health outcomes.76 There are indeed many people whose BMI would label them as obese but who are able to maintain a full and active lifestyle.77 However, these people may still face discrimination because of a perceived disability. By requiring plaintiffs to prove their body systems are actually impaired, Justice Yu would render the statutory phrase “perceived to exist whether or not it exists in fact”78 moot and would place a significant burden on plaintiffs. The nuances between Justice Yu’s dissent and the majority opinion are eclipsed by the federal courts’ rejection of the medical consensus.
Medical consensus ought to play a role in how federal courts interpret the ADA. A month prior to the Taylor decision, the Seventh Circuit held in Richardson v. Chicago Transit Authority79 that obesity is not an impairment under the ADA unless caused by an underlying “physiological disorder or condition.”80 The court in Richardson “join[ed] the Second, Sixth, and Eighth Circuits,”81 reflecting consensus among federal circuits confronting the issue.82 Amicus briefs argued that obesity, as a disease, “is in and of itself a physiological disorder and therefore a physical impairment,” but the court found that argument unpersuasive because “[t]he ADA is an antidiscrimination — not a public health — statute.”83 However, medical consensus is relevant to the implementation of the ADA because it proves that obesity discrimination is based on a medical disability and not merely a physical trait. Thus, federal courts should consider medical evidence when interpreting the ADA because it informs whether a condition, like obesity, is an impairment.
Obesity discrimination remains a pervasive problem in society and in the workplace today. Extending antidiscrimination protections to people living with obesity would alleviate at least some of this discrimination and would signal that weight bias is not acceptable. The Taylor court extended these protections by embracing the medical recognition of obesity as a disease. The medicalization of obesity remains controversial as it may entrench a sense of “otherness,” but embracing it allows courts to combat prejudice by dispensing with the notion that people are responsible for their obesity. Taylor will allow residents of Washington living with obesity to bring claims when faced with discriminatory practices, and it is the best way to provide people living with obesity the antidiscrimination protections they need.