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

• Decision Date: 11 July 2019
• Docket Number: No. 96335-5,96335-5
• Citation: 444 P.3d 606,193 Wash.2d 611
• Court: Washington Supreme Court
• Parties: 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, v. 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.

193 Wash.2d 611

444 P.3d 606

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,

v.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.

No. 96335-5

Supreme Court of Washington.

Argued February 28, 2019

Filed July 11, 2019

Shelby R. Frost Lemmel, Kenneth Wendell Masters, Masters Law Group PLLC, 241 Madison Avenue N, Bainbridge Island, WA 98110-1811, Jay Roderik Stephens, The Stephens Law Firm, 424 29th Street NE, Suite D, Riverside Village, Puyallup, WA 98372-6785, for Plaintiff.

Bryan P. Neal, Thompson & Knight LLP, 1722 Routh Street, Suite 1500, Dallas, TX 75201, Britenae M. C. Pierce, Ryan Swanson & Cleveland PLLC, 1201 3rd Avenue, Suite 3400, Seattle, WA 98101-3034, for Defendant.

Michael Craig Subit, Frank Freed Subit & Thomas LLP, 705 2nd Avenue, Suite 1200, Seattle, WA 98104-1798, Daniel B. Kohrman, AARP Foundation Litigation, 601 E. Street NW, Room S11-230, Washington, DC 20049, for Amicus Curiae (AARP and AARP Foundation).

Jeremy Fischel Wood, Daniel L. Thieme, Littler Mendelson, 600 University Street, Suite 3200, Seattle, WA 98101-3122, Robert Andrew Battles, Association of Washington Business, 1414 Cherry Street SE, Olympia, WA 98501-2341, for Amicus Curiae (Association of Washington Business).

Brendan Wesley Donckers, Breskin Johnson & Townsend, PLLC, 1000 Second Avenue, Suite 3670, Seattle, WA 98104, for Amicus Curiae (Disability Rights Washington, Obesity Action Coalition).

Jeremy Fischel Wood, Daniel L. Thieme, Littler Mendelson, 600 University Street, Suite 3200, Seattle, WA 98101-3122, Peter C. Tolsdorf, Leland P. Frost, Manufacturers' Center for Legal Action, 733 10th Street NW, Suite 700, Washington, DC 20001, for Amicus Curiae (National Association of Manufacturers).

Jeremy Fischel Wood, Daniel L. Thieme, Littler Mendelson, 600 University Street, Suite 3200, Seattle, WA 98101-3122, Karen R. Harned, Elizabeth Milito, Nat'l Fed. of Independent Business, 1201 F Street NW, Washington, DC 20004, for Amicus Curiae (National Federation of Independent Business).

Michael Craig Subit, Jillian M. Cutler, Jeffrey Lowell Needle, Frank Freed Subit & Thomas LLP, 705 2nd Avenue, Suite 1200, Seattle, WA 98104-1798, for Amicus Curiae (Washington Employment Lawyers Association).

Jeremy Fischel Wood, Daniel L. Thieme, Littler Mendelson, 600 University Street, Suite 3200, Seattle, WA 98101-3122, for Amicus Curiae (Washington Policy Center).

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae (Washington State Association for Justice Foundation).

FAIRHURST, C.J.

¶1 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., 904 F.3d 846, 853 (9th Cir. 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

I. FACTS AND PROCEDURAL HISTORY

¶2 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.

¶3 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 plaintiff’s obesity as having such a cause." 1 ER at 23. The court dismissed the case with prejudice.

¶4 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

¶5 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

¶6 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 Wash.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 Wash.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 Wash.2d 801, 808, 16 P.3d 583 (2001).

B. Obesity

is an impairment under the WLAD

1. The statute

¶7 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).

¶8 "Impairment" includes, but is not limited to:

(i) Any physiological disorder, or condition, cosmetic

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