Taylor v. Burlington N. R.R. Holdings Inc.

• Decision Date: 17 September 2018
• Docket Number: No. 16-35205,16-35205
• Citation: 904 F.3d 846
• Parties: Casey TAYLOR; Angelina Taylor, husband and wife and the marital community composed thereof, Plaintiffs-Appellants, v. BURLINGTON NORTHERN RAILROAD HOLDINGS INC., a Delaware Corporation licensed to do business in the State of Washington; BNSF Railway Company, a Delaware Corporation licensed to do business in the State of Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

904 F.3d 846

Casey TAYLOR; Angelina Taylor, husband and wife and the marital community composed thereof, Plaintiffs-Appellants,

v.BURLINGTON NORTHERN RAILROAD HOLDINGS INC., a Delaware Corporation licensed to do business in the State of Washington; BNSF Railway Company, a Delaware Corporation licensed to do business in the State of Washington, Defendants-Appellees.

No. 16-35205

United States Court of Appeals, Ninth Circuit.

Filed September 17, 2018

Shelby R. Frost Lemmel (argued) and Kenneth W. Masters, Masters Law Group P.L.L.C., Bainbridge Island, Washington; Jay R. Stephens, The Stephens Law Firm PS, Puyallup, Washington; for Plaintiffs-Appellants.

Bryan P. Neal (argued), Thompson & Knight LLP, Dallas, Texas; Britenae Pierce and Teruyuki S. Olsen, Ryan Swanson & Cleveland PLLC, Seattle, Washington; for Defendants-Appellees.

Paul D. Ramshaw (argued), Attorney; Margo Pave, Assistant General Counsel; Jennifer S. Goldstein, Associate General Counsel; P. David Lopez, General Counsel; Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C.; for Amicus Curiae Equal Employment Opportunity Commission.

D.C. No. 2:11-cv-01289-JLR

Before: Raymond C. Fisher, Ronald M. Gould and Richard A. Paez, Circuit Judges.

ORDER CERTIFYING A QUESTION TO THE WASHINGTON SUPREME COURT

Casey Taylor alleges in part that his prospective employer, BNSF Railway Company (BNSF), discriminated against him in violation of the Washington Law Against Discrimination (WLAD) when it perceived him to be physically impaired and, as a result, withdrew his employment offer. This appeal raises an important question of Washington law: whether and when obesity

qualifies as an "impairment" under the WLAD, Wash. Rev. Code § 49.60.040. Because there is no controlling precedent on this question, and the answer to the question is determinative of this appeal, we respectfully certify it to the Washington Supreme Court.

I. Background

BNSF extended Taylor an offer of employment as an electronic technician, conditioned on his completing a medical history questionnaire and undergoing a physical exam. BNSF's medical examiner determined Taylor met the physical qualifications for the position but referred him to the company's chief medical officer because he 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 BNSF treats a BMI over 40 as a "trigger" for further screening in the employment process. BNSF advised Taylor, in pertinent part: "The BNSF Medical Officer is unable to determine medical qualification for Electronic Technician position due to significant health and safety risks associated with extreme obesity

(Body Mass Index near or above 40)." BNSF offered to reconsider Taylor's medical qualification if he undertook further – and costly – medical testing:

If you choose to supply this information, we can evaluate your condition again, but please note that simply providing these reports does not guarantee qualification.

If you choose not to obtain this information at this time, your case can be reconsidered if you lose at least 10% of your weight (26 pounds) and maintain that weight for at least 6 months.

When Taylor indicated he lacked the ability to pay for the testing, BNSF did not offer financial aid.

Taylor filed this action against BNSF in Washington state court, asserting a single claim of disability discrimination under the WLAD. He alleged BNSF denied him employment because it perceived him as disabled due to obesity

. After BNSF removed the action to federal court based on diversity of citizenship, the district court granted summary judgment to BNSF, and Taylor appealed.

To prevail under the WLAD, Taylor must establish both that (1) obesity

constitutes a disability under the WLAD and (2) BNSF's withdrawal of its employment offer on account of his failure to pay for additional medical testing constitutes actionable discrimination under the WLAD.

As to the second question, we recently held in EEOC v. BNSF Railway Co. , No. 16-35457, 2018 WL 4100185, 902 F.3d 916 (9th Cir. Aug. 29, 2018), that an employer engages in prohibited discrimination under the federal Americans with Disabilities Act (ADA) when it withdraws a conditional offer of employment based on a prospective employee's failure to pay for medical testing that the employer has required solely because of the prospective employee's perceived disability or impairment. See id. , 2018 WL 4100185, at *8–9, 902 F.3d at 925–27. As a general matter, the WLAD is at least as broad as the ADA:

Even though almost all of the WLAD's prohibitions predate Title VII's, the ADA's, and the [Age Discrimination in Employment Act]'s, Washington courts still look to federal case law interpreting those statutes to guide our interpretation of the WLAD. Federal cases are not binding on this court, which is "free to adopt those theories and rationale which best further the purposes and mandates of our state statute." Grimwood v. Univ. of Puget Sound, Inc. , 110 Wash. 2d 355, 361–62, 753 P.2d 517 (1988). Where this court has departed from federal antidiscrimination statute precedent, however, it has almost always ruled that the WLAD provides greater employee protections than its federal counterparts do.

Kumar v. Gate Gourmet Inc. , 180 Wash.2d 481, 325 P.3d 193, 197–98 (2014) (footnotes

omitted). Thus, for purposes of our analysis, we assume that, as under the ADA, an employer discriminates in violation of the WLAD when it withdraws a conditional offer of employment based on a prospective employee's failure to pay for medical testing that the employer has required solely because of the prospective employee's perceived disability or impairment. We need not certify that question to the Washington Supreme Court.

As to the first question, this court has not yet addressed whether or when obesity

qualifies as a disability or impairment under the ADA and, as we discuss below, other jurisdictions are divided on that question. Furthermore, even if we were to decide that the ADA treats obesity as a disability in only limited circumstances, Washington law may well provide broader coverage. As noted, where the Washington Supreme Court "has departed from federal antidiscrimination statute precedent, ... it has almost always ruled that the WLAD provides greater employee protections than its federal counterparts do." Id.

Because the ADA's coverage of obesity

is an open question in this circuit and, in any event, Washington law may be broader, we conclude it is appropriate to certify this important question of Washington law to the Washington Supreme Court.

In sum, we have concluded that the outcome of this appeal turns on whether obesity

constitutes an "impairment" and thus a "disability" under Washington law. In light of the importance of the issue and the absence of controlling legal authority, we now certify that question to the Washington Supreme Court.

II. Explanation of Certification Request

Assuming the Washington Supreme Court accepts certification, it may wish to consider the following authority.

A. Statutory Text

The WLAD makes it an "unfair practice" for an employer to refuse to hire an applicant because of "the presence of any sensory, mental, or physical disability " unless "the particular disability prevents the proper performance of the particular worker involved." Wash. Rev. Code § 49.60.180 (emphasis added). A "disability" is "the presence of a sensory, mental, or physical impairment that:" (1) "[i]s medically cognizable or diagnosable," (2) "[e]xists as a record or history" or (3) "[i]s perceived to exist whether or not it exists in fact." Id. § 49.60.040 (emphasis added). An "impairment," in turn,

includes, but is not limited to:

(i) Any physiological disorder, or condition , cosmetic disfigurement, or anatomical loss affecting one or more of [an enumerated list of] body systems ... ; 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.

Id. § 49.60.040(7)(c) (emphasis added).

Taylor does not argue that his obesity

arises from an underlying physiological disorder or condition. He contends, however, that obesity constitutes an "impairment" because it is a "condition," and the word "physiological" modifies only "disorder" within the text of the WLAD. He notes as well that the WLAD "includes" but does not "limit" its definition of impairment to the disorders and conditions enumerated in § 49.60.040(7)(c). BNSF argues the word "physiological" modifies both "disorder" and "condition," and, consequently, that Taylor's perceived obesity

does not qualify as an impairment.¹

B. The ADA

The Washington Supreme Court also may wish to consider the treatment of obesity

under the ADA. As noted, Washington courts treat federal interpretations of the ADA as instructive, but not binding, in interpreting the WLAD. See

Kumar , 325 P.3d at 197–98 ; Davis v. Microsoft Corp. , 149 Wash.2d 521, 70 P.3d 126, 132 (2003). Here, the parties disagree over whether federal cases deciding the obesity issue under the ADA are correctly decided; to what extent those cases remain good law after Congress amended the ADA in 2008; and, even if coverage of obesity under the ADA is limited, whether distinctions in the text and history of the WLAD show that it protects a broader range of impairments than its federal counterpart.

1. The Text of the ADA and its Governing Regulations

The ADA defines "disability" as a "physical or mental impairment

," 42 U.S.C. § 12102(1)(A), and a regulation issued by the Equal Employment Opportunity Commission (EEOC) defines "impairment" as

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as [an enumerated list]; or

(2) Any mental or psychological disorder, such as an intellectual disability

...