Under Washington state's disability anti-discrimination law, obesity is always considered a disability, according to a 7-2 decision by the Washington Supreme Court.
The Washington Supreme Court considered a case brought by an applicant who had lost an offer of employment after a medical exam determined he was obese. The man had applied to work as an electronic technician with a railroad employer.
The employer allegedly requires applicants with a body mass index over 40 to submit to an additional medical screening. A BMI over 40 is considered morbidly obese, while a BMI of 30 or more is considered obese, according to the National Institutes of Health.
According to the allegations in the lawsuit, the employer told the applicant that he was not medically qualified for the position because of health and safety risks. The employer allegedly said that it would only reconsider if he either lost 10 percent of his body weight and kept it off for six months or he paid for additional medical testing, which cost thousands of dollars.
The Washington Supreme Court ruling makes it illegal for Washington employers to refuse employment opportunities for someone who is qualified to perform the job, but who suffers from obesity.
Some federal courts have ruled that obesity must be caused by a separate disorder to qualify as a disability, but that is not the case in Washington state. Washington's chief justice stated, "[t]here is an overwhelming consensus in the medical community that obesity is a disease in and of itself."
However, the court ruled that being overweight, as opposed to obese, does not qualify as a disability. "Law protects obese from discrimination, state's high court rules" thedailyworld.com (Jul. 13, 2019).
Commentary and Checklist
Family employers may have preferences concerning the weight of their staff for appearance reasons. Appearance is never a good defense to charges of disability discrimination.
To avoid charges of disability discrimination, family employers must consider essential job functions and write clear job descriptions for each position.
Consider, for example, a housekeeper who is required to clean small spaces in your home. In this instance, the applicant's size and weight could affect whether he or she can perform the essential function of cleaning in tight spaces. If the applicant cannot fit in areas that must be cleaned; cleaning those areas is essential (meaning it must be done and no one else on your staff can do it); and there is no reasonably-priced tool that, as a reasonable accommodation, could enable the employee to perform the task, you may be justified in failing to hire an applicant because of size or weight.
Here are some tips for family employers to keep in mind when writing job descriptions:
- For each staff position, write a job description that clearly and specifically outlines the essential duties necessary to perform the position.
- The job description should include the level of skill required, the amount of physical or mental exertion necessary, the degree of responsibility required, any hazards that may be experienced as part of the job, and the place where the work will be performed.
- Criteria should be objective and job specific.
- Make sure all job descriptions are up-to-date. If the required duties of a position change over time, update that information in the written job description.
- Provide all staff with a written copy of their current job description.
- Train your management staff on the Americans with Disabilities Act (ADA) requirements concerning essential job functions and seek the advice of your attorney if you think a staff member can no longer perform his or her essential duties because of a disability.
- Although the ADA only applies to employers with 15 or more employees, many states have anti-discrimination laws that apply to an employer of any size.