                                                                    This opinion was
                                                                     lied for record
      IN CLERKS pmCE
SUPRBE COURT,amE OF VWSHmraN
                                                                 at^l<H<on l^il-^19

                                                                c^/toCV^ -
                                                                   Susan L. Carlson
                                                                  Supreme Court Clerk
       GtmFJOsnce              I




IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CERTIFICATION FROM THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT IN                             No. 96335-5


CASEY TAYLOR and ANGELINA
TAYLOR,husband and wife and the
marital community composed thereof,              EN BANC


                       Plaintiffs-Appellants,

V.                                               Filed         JUL 1 1

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.



        FAIRHURST, C.J.—^The Washington Law Against Discrimination(WLAD)

generally prohibits employers from discriminating against an employee because the
Taylor v. Burlington N. R.R. Holdings, /?7c.,No. 96335-5

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," "[ejxists 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,ifany, 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, //7C., No 16-

35205, at 2(9th Cir. Sept. 17, 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 ofthe WLAD.'

                      I. FACTS AND PROCEDURAL HISTORY


       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



       ^ If instead, an employee was seeking reasonable accommodations, the employee would
have to show that they actually have obesity and that the obesity met the other criteria of RCW
49.60.040(7)(d).
                                              2
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

exam found that Taylor "[mjeets 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.
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

      In 2010, Taylor sued BNSF and Burlington Northern Railroad Holdings Inc.^

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 summaryjudgment,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 plaintiffs

obesity as having such a cause." 1 ER at 23. The court dismissed the case with

prejudice.

      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.

                                    11. ANALYSIS


      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


      ^ We refer to both the railway company and the holding company collectively as "BNSF.'
                                            4
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

"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),^ and we decline to use federal

interpretations of the ADA to constrain the protections offered by the WLAD.

A.    Standard of review


      The certified question asks us to determine whether obesity can qualify as an

impairment under ROW 49.60.040. Statutory interpretation "is a question of law

reviewed de novo." State v. James-Buhl, 190 Wn.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 Wn.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 ofLabor & Indus., 142 Wn.2d 801,

808, 16P.3d583 (2001).




        42 U.S.C. § 12102.
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

B.    Obesity is an impairment under the WLAD

       1.    The statute


      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." ROW

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) [ejxists 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).

      "Impairment" includes, but is not limited to:

             (i) Any physiological disorder, or condition, cosmetic
       disfigurement, or anatomical loss affecting one or more ofthe following
       body systems: Neurological, musculoskeletal, special sense organs,
       respiratory, including speech organs, cardiovascular, reproductive,
       digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine;
       or
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

            (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.


RCW 49.60.040(7)(c). The parties in this case debate whether obesity is a

"physiological disorder, or condition" under this definition.

      2.     The history of the statute and its interpretation

      This is not the first time that we have been asked to interpret this statute, and

the history ofthis statute provides insight into our legislature's intent in adopting it.

The original version of the WLAD did not define the term "disability." See Hale v.

Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 500, 198 P.3d 1021 (2009). Instead,the

WLAD created an agency, now known as the Washington State Human Rights

Commission (HRC), to administer the law. The HRC is charged with formulating

policies and adopting rules to effectuate the WLAD. RCW 49.60.110, .120(3). The

HRC has explained that "a person will be considered to be disabled by a sensory,

mental, or physical condition if he or she is discriminated against because of the

condition and the condition is abnormal." WAC 162-22-020(2)(c).

       In 2000,this court wrestled with how to apply HRC's definition in reasonable

accommodation cases. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641, 9 P.3d

787 (2000). When a plaintiff makes a disparate treatment claim, the plaintiff need

not show that they are actually suffering from an impairment. Instead, it is enough

to show that the employer discriminated against the plaintiff because it perceived the
                                            7
Taylor v. Burlington N. R.R. Holdings, /«c., No. 96335-5

plaintiff to be suffering from an impairment. RCW 49.60.040(7)(a)(iii). But in a

reasonable accommodation case, the employee must show that they are actually

suffering from an impairment and that the employer failed to reasonably

accommodate them. RCW 49.60.040(7)(d). In Pulcino, we concluded that the HRC

definition was unworkable in reasonable accommodation claims because it would


require an employee to show that "the employer failed to accommodate the

employee (i.e., discriminated against him or her) because of the employee's

abnormal condition. This implies that the employer accommodates other employees;

but, obviously, employees who are not disabled do not require such

accommodation." 141 Wn.2d at 641. Therefore, we adopted a different test, holding

that in a reasonable accommodation case, the employee can prove that they are

actually disabled if"(1)[they have]/had a sensory, mental, or physical abnormality

and(2)such abnormality has/had a substantially limiting effect upon the individual's

ability to perform his or her job." Id. We explained that "[a]n employee can show

that [they have] a sensory, mental or physical abnormality, by showing that [they

have] a condition that is medically cognizable or diagnosable, or exists as a record

or history." Id. (citing former WAC 162-22-020(2) (1999)). We also expressly

recognized that the WLAD's definition of"disability" is broader than the definition

in the ADA.Id. at 641 n.3.
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

      Six years later, this court rejected the HRC's definition of "disability"

altogether and instead held that the ADA's definition applies to all disability

discrimination actions brought under the WLAD. McClarty v. Totem Elec., 157

Wn.2d 214, 228, 137 P.3d 844(2006). We explained that the HRC's definition was

confusing and that although courts often defer to administrative agencies'

interpretations of the statutes they are charged with administering, the HRC's

definition was "not a rational and sensible interpretation ofthe term 'disability.'" Id.

We rejected that definition "in favor of a definition better supported by the WLAD's

text, the legislature's intent, and our jurisprudence"—^the definition found in the

ADA.Id. We held that as under the ADA,"a plaintiff bringing suit under the WLAD

establishes that he has a disability if he(1)has a physical or mental impairment that

substantially limits one or more of his major life activities,(2)has a record of such

an impairment, or(3)is regarded as having such an impairment." Id. We noted that

if we adopted the federal definition, we could look to the "abundance of authority

interpreting the ADA"to "assist us in construing and applying similar provisions in

the WLAD."Id. at 229 n.lO.


      Justice Owens dissented, explaining that the legislature had known since 1990

that the WLAD's definition of "disability" was broader than the ADA's definition

and had never chosen to amend the WLAD to overrule the HRC's interpretation. See

id. at 244(Owens, J., dissenting)(citing Wash. Indep. Tel. Ass'n v. Wash. Utils. &
Taylor v. Burlington N. R.R. Holdings, /«c., No. 96335-5

Transp. Comm'n, 148 Wn.2d 887, 905, 64 P.3d 606 (2003) (holding that the

legislature is deemed to have acquiesced in a statutory interpretation when it makes

no change for a substantial period of time after the interpretation has been issued)).

She criticized the decision to overrule the HRC's policy choice to define "disability"

broadly and explained that the key focus in achieving the public policy ofthe WLAD

is '"whether the worker has any "sensory, mental or physical" condition which the

employer uses as a basis for rejecting him (or her) even though that individual may

be perfectly capable of properly performing the work.'" Id. at 246 (Owens, J.,

dissenting) (emphasis omitted) (quoting Br. of Appellant at 24-25, 44-45, Chi.,

Milwaukee, St. Paul & Pac. R.R. v. Wash. State Human Rights Comm 'n. No. 44105

(Wash.)).

      The legislature disagreed with the definition adopted by the majority in

McClarty. It expressly found "that the supreme court, in its opinion in McClarty v.

Totem Electric, failed to recognize that the Law Against Discrimination affords to

state residents protections that are wholly independent of those afforded by the

[ADA], and that the law against discrimination has provided such protections for

many years prior to passage ofthe federal act." LAWS of2007, ch. 317, § 1 (citation

omitted). The legislature chose to define "disability" broadly as "the presence of a

sensory, mental, or physical impairment," even if it does not limit life activities, and

explained that an "'impairment' includes, but is not limited to ...[a]ny physiological

                                          10
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

disorder, or condition .. . affecting one or more ofthe [listed] body systems." RCW

49.60.040(7)(a),(c)(i).

       The above history provides two crucial insights into legislative intent. First,

the legislature intended to adopt a broad and expansive definition of"disability" in

order to protect against discrimination. Second,the legislature has expressly rejected

the idea that the ADA should be used to constrain the protections offered under the

WLAD.


       3.       Obesity is an impairment under the plain language of the WLAD

       In order to prevail in a disparate treatment case like this one, a plaintiff need

show only that the employer perceived the employee as having an "impairment.'"^

RCW 49.60.040(7); of. McClarty, 157 Wn.2d at 248 (Owens, J., dissenting)

(explaining that requiring only this showing makes sense because "'an employee

claiming disparate treatment is not asking the employer to take any remedial steps

on his behalf. Rather, the employee asks only that the employer not terminate him

for discriminatory reasons'"(quoting McClarty v. Totem Elec., 119 Wn. App. 453,



         Unlike in a reasonable accommodation case, the plaintiff in a disparate treatment case
need not show that they are actually impaired or that the impairment has any actual or potential
substantially limiting effect. See RCW 49.60.040(7)(d). In a reasonable accommodation case, the
plaintiff would have to show that they actually had obesity and that their obesity had "a
substantially limiting effect upon the individual's ability to perform his or her job, the individual's
ability to apply or be considered for a job, or the individual's access to equal benefits, privileges,
or terms or conditions of employment" or that the plaintiff had "put the employer on notice of the
existence of an impairment, and medical documentation . . . establish[ed] a reasonable likelihood
that engaging in job functions without an accommodation would aggravate the impairment to the
extent that it would create a substantially limiting effect." Id.
                                                  11
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

470, 81 P.3d 901 (2003), rev'd, 157 Wn.2d 214)). We are expressly instructed to

construe the WLAD "liberally for the accomplishment of the purposes thereof."

RCW 49.60.020.


       As explained above, a "disability" under the WLAD is defined as "a sensory,

mental, or physical impairment that:(i)[i]s medically cognizable or diagnosable; or

(ii) [ejxists 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). Because there is no question here that BNSF

perceived Taylor as having "extreme obesity," 2 ER at 147, the issue presented by

this disparate treatment case is whether obesity can qualify as an impairment.^ It can.

Obesity is not merely the status of being overweight. Obesity is recognized by the

medical community as a primary disease. The medical evidence shows that obesity

is always an impairment because it is a "physiological disorder, or condition . . .

affecting one or more of the [listed] body systems." RCW 49.60.040(7)(c)(i).

              (a) Obesity is a physiological disorder, or condition

       First, the medical evidence shows that obesity is a "physiological disorder, or

condition" under RCW 49.60.040(7)(c)(i).




      ^ The dissent would reframe the question to ask when obesity is a disability under the
WLAD, but the parties in this case do not dispute that BNSF perceived Taylor to have obesity.
The only question before us is whether obesity can qualify as an impairment under RCW
49.60.040(7)(c)(i).
                                             12
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

       "Physiological" is not defined by the statute, but Webster's defines

"physiology" as "the organic processes and phenomena of an organism or any of its

parts or of a particular bodily process." WEBSTER'S THIRD New INTERNATIONAL

Dictionary 1707 (2002). Even if a condition must be physiological to be an

impairment, a contention that is disputed in this case, obesity would qualify because

it involves both the organic process and phenomena of an organism—^the excessive

accumulation of fat cells.


       Obesity is not only physiological; it is also recognized as a disorder. The

Merck Manual of Diagnosis and Therapy lists "obesity" under section 1,

"Nutritional Disorders." The Merck MANUAL OF DIAGNOSIS AND THERAPY 19

(Robert S. Porter et al. eds., 20th ed. 2018) (hereinafter Merck Manual).^

According to the most recent edition ofthe Merck Manual,obesity may be diagnosed

initially based on BMI, but doctors may also consider waist circumference and body

composition analysis. Id. at 20-21. The fact that obesity is often diagnosed merely

by measuring weight does not mean that it is not a physiological disorder affecting

body systems, just as the fact that diabetes is diagnosed merely by "measuring

plasma glucose" does not mean that it is not a physiological disorder affecting body

systems./<7. at 1253(boldface omitted). Just as type 2 diabetes is a disorder involving



       ^ The Merck Manual is a "reliable and trusted source for medical information." Krystal
Bullers, Merck Manuals, 104 J. Med. Libr. Ass'n 369, 371 (2016); see also State v. Cissne, 72
Wn. App. 677, 681, 865 P.2d 564(1994)(citing the Merck Manual).
                                             13
Taylor v. Burlington N. R.R. Holdings,         No. 96335-5

an abnormal response to insulin that results in above average blood sugar numbers,

obesity is a disorder involving an abnormal accumulation of fat cells that results in

above average weight. Not all people who are over a certain weight to height ratio

have obesity.

      Although obesity is ultimately the result of "a long-standing imbalance

between energy intake and energy expenditure," the medical community has

recognized that the "[cjauses of obesity are probably multifactorial and include

genetic predisposition." Id. at 19. A predisposition toward obesity can be caused by

"endocrine disrupters (eg [sic], bisphenol A [BPA]), gut microbiome, sleep/wake

cycles, and environmental factors." Id. There can sometimes be underlying

physiological disorders that contribute to obesity, such as tumors. Gushing

syndrome, hypothyroidism, or eating disorders, but obesity may also occur in people

without these other disorders. Genetic factors, prenatal maternal obesity or smoking,

and intrauterine growth restriction can all contribute to the development of obesity.

Id. at 20."Heritability of BMI is about 66 [percent]." Id. at 19.

      There is an overwhelming consensus in the medical community that obesity

is a disease in and of itself. See Amici Curiae Br. of Obesity Action Coal.(GAG)&

Disability Rights Wash.(DRW) in Supp. of Appellants at 7-13. The American

Association of Clinical Bndocrinologists(AACE)published a position statement on

obesity in 2012 "strongly assert[ing] that obesity is a primary disease." Jeffrey I.

                                          14
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

Mechanick et al., American Association of Clinical Endocrinologists' Position

Statement on Obesity and Obesity Medicine, 18 ENDOCRINE Prac. 642, 644(2012)

(hereinafter AACE Position Statement). The AACE rejected the argument that

obesity is merely "a quantitative excess ofbody fat," explaining instead that"obesity

is an altered physiological and metabolic state, with environmental, genetic, and

hormonal determinants, which results in increased morbidity and mortality." Id.

(emphasis added). The American Society of Metabolic and Bariatric Surgery agrees,

stating that obesity is "a multifactorial disease with a strong genetic component" and

that a number of "hormonal, metabolic, psychological, cultural and behavioral

factors . . . promote fat accumulation and weight gain." Disease of Obesity, Am.

Soc'Y FOR Metabolic & Bariatric Surgery, https://asmbs.org/patients/disease-

of-obesity [https://perma.cc/2KPT-3NTU].

      In 2013, the American Medical Association(AMA)also recognized obesity

as a disease. AMA Resolution 420, A-13 (May 16, 2013) (hereinafter AMA

Resolution). The AMA has specific criteria for labeling something a disease—"1)

an impairment ofthe normal functioning ofsome aspect ofthe body; 2)characteristic

signs or symptoms; and 3) harm or morbidity." Id. The AMA found that "there is

now an overabundance of clinical evidence to identify obesity as a multi-metabolic

and hormonal disease state including impaired functioning of appetite dysregulation,

abnormal energy balance[], endocrine dysfunction including elevated leptin levels

                                         15
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

and insulin resistance, infertility, dysregulated adipokine signaling, abnormal

endothelial function and blood pressure elevation, nonalcoholic fatty liver disease,

dyslipidemia, and systemic and adipose tissue inflammation." Id. The resolution

further explained that"[ojbesity has characteristic signs and symptoms including the

increase in body fat and symptoms pertaining to the accumulation of body fat, such

as joint pain, immobility, sleep apnea, and low self-esteem." Id. This resolution was

introduced by the AACE, the American College of Cardiology, the Endocrine

Society, the American Society for Reproductive Medicine, the Society for

Cardiovascular Angiography and Interventions, the American Urological

Association, and the American College of Surgeons. Id. The AMA noted that the

World Health Organization, the United States Food and Drug Administration, the

National Institutes of Health, the Internal Revenue Service, and one of the largest

health insurance companies, CIGNA, all recognize obesity as a disease. Id. The

AMA explained that although obesity can be caused by life choices, it is still a

disease, just as lung cancer is still a disease even though it can be caused by the

choice to smoke cigarettes. Id. Moreover, even if obese patients successfully lose

weight,"hormonal and metabolic abnormalities" can remain.Id.

      The recognition of obesity as a disease further supports our finding that

obesity is a physiological disorder under the statute. The WLAD does not define

"disorder" but Webster'^ defines "disorder" as "a derangement offunction" and "an

                                         16
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

abnormal physical or mental condition." Webster's, supra, at 652. A disease is

commonly understood to fit within this definition. See AMA Resolution, supra

(describing obesity as a disease involving "dysregulation" and "dysfunction" of

various body systems and "abnormal" functioning of the body). Therefore, obesity

is a physiological disorder under the WLAD.

       Obesity is also a qualifying condition. The legislature also did not provide a

definition of "condition," but the HRC did. According to WAC 162-22-020(2)(c),

"[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and

is a reason why the person having the condition did not get or keep the job in

question." Stated another way, "for enforcement purposes, a person will be

considered to be disabled by a sensory, mental, or physical condition if he or she is

discriminated against because of the condition and the condition is abnormal." Id.^

It is undisputed that Taylor did not get or keep the job in question because BNSF

perceived him as obese.

       The definition promulgated by the HRC is "entitled to be given great weight

as it is the construction of the statute by the administrative body whose duty it is to

administer its terms. Phillips v. City ofSeattle, 111 Wn.2d 903, 908, 766 P.2d 1099




       ^ We decided that this definition was unworkable in reasonable accommodation cases,
Pulcino, 141 Wn.2d at 641, and dismissed it entirely in McClarty, 157 Wn.2d at 228. However,
the legislature rejected the McClarty decision's new definition and neither the legislature nor the
HRC defined "condition" differently for disparate treatment cases despite knowing this history.
                                                17
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

(1989)."A court must give great weight to the statute's interpretation by the agency

which is charged with its administration, absent a compelling indication that such

interpretation conflicts with the legislative intent." Marquis v. City ofSpokane, 130

Wn.2d 97, 111, 922 P.2d 43 (1996);            also McClarty, 157 Wn.2d at 237-38

(Owens, J., dissenting). The legislature could have defined the word "condition"

differently when it revised the WLAD in 2007, but it chose not to.

      The Court of Appeals has also adopted a broad definition of the word

"condition" in this context. See Clipse v. Commercial Driver Servs., Inc., 189 Wn.

App. 776, 358 P.3d 464(2015), review denied, 185 Wn.2d 1017(2016). The Clipse

court was faced with the question of whether the side effects of methadone qualified

as a disability under the WLAD. The court reviewed the statutory definition of

"disability," applied the legislative mandate to "construe the statute liberally to

effectuate its purpose of remedying disability discrimination," and concluded that

"under the plain language of the statute, any mental or physical condition may be a

disability." Id. at 793. The Clipse court explained that Clipse had presented evidence

of a physical condition because he showed "that taking methadone had impairing

physical side effects," and the court upheld the jury verdict in his favor. Id. BNSF

attempts to distinguish Clipse as relying on Clipse's drug addiction. But the court

did not hold that he was disabled because he was a drug addict. The court held that




                                         18
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

he was disabled because his use of methadone was a condition that "had impairing

physical side effects." Id.

      BNSF argues that "[w]eight is not 'an abnormality'" because weight is

intrinsic to human bodies and is not immutable. Br. of Appellees on Certified

Question at 26-27. However, Taylor correctly points out that the question before us

is not whether weight is a condition under the WLAD,but whether obesity is. BNSF

did not just perceive Taylor as over a certain weight. Instead, it was concerned that

his perceived "extreme obesity" posed significant health and safety risks. 2 ER at

147. As discussed above, obesity is a medical condition that not all humans have.

See also AACEPosition Statement,supra, at 644(explaining that obesity is a disease

and is also commonly referred to as a '"condition"')

      Amici National Association of Manufacturers(NAM) et al. make a similar

argument, stating that obesity is not an "abnormality" because a large percentage of

the population is overweight or obese according to BMI. See Br. of Amici Curiae

NAM et al. at 6 (explaining that in 2016, 29 percent of adult Washingtonians were

obese according to BMI). However, even if all of these individuals were actually

suffering from obesity, the WLAD tells us that a disability may be "temporary or

permanent, common or uncommon." RCW 49.60.040(7)(b). Therefore,"abnormal"

must refer to something other than statistical frequency and cannot be limited to

immutable states of being.


                                         19
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

      Although the word "abnormal" is not defined by the HRC, the medical

evidence shows that obesity is an abnormal condition. The AMA explains that

obesity is a "disease state including . . . abnormal energy balance[]" and ''abnormal

endothelial function" and results in "metabolic abnormalities'"' even after weight

loss. AMA Resolution, supra (emphasis added). Therefore, obesity is a condition

within the meaning of WAC 162-22-020(2)because it is an abnormality and BNSF's

perception that Taylor was obese was undisputedly the reason that Taylor did not

get or keep the job in question.

      Therefore, obesity is a "physiological disorder, or condition" under RCW

49.60.040(7)(c)(ii).

            (b) Obesity affects several ofthe statutorily listed body systems

      Second,the medical evidence shows that obesity is not merely associated with

other health problems but, instead, that obesity itself inherently affects one or more

of the body systems listed in RCW 49.60.040(7)(c)(i). These body systems are

"[njeurological, musculoskeletal, special sense organs,respiratory, including speech

organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and

lymphatic, skin, and endocrine." RCW 49.60.040(7)(c)(i). Amici OAC and DRW

describe in detail how obesity itself affects the cardiovascular or circulatory systems,

the musculosketal system, the lymphatic system, and the endocrine system:

       1.    Obesity affects the "cardiovascular" or "circulatory" system.
             Increased adipose tissue has a direct impact on heart structure
                                          20
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

             and function because it releases proteins that cause heart
             inflammation; increases total blood volume and enlarges
             portions of the heart; and deposits fat directly onto the heart,
             causing it increased strain.

      2.    Obesity also impacts the "musculoskeletal" system as the mass
            inherently associated with increased body fat places increased
            stress on the joints - in particular, the weight bom by the knees
            - which causes cartilage degradation and leads to osteoarthritis.

      3.     Obesity affects the "lymphatic" system. Studies show that
             increased adipose tissue impairs the flow of lymphatic fluid by
             compressing and damaging lymphatic vessels and thus leading
             to lymphedema.

      4.     Obesity also affects the "endocrine" system because adipose
             tissue secretes hormones that regulate metabolism, contributing
             to insulin resistance and ultimately diabetes.

Br. of OAC & DRW at 18-19(footnotes omitted)(citing published medical studies);

see also id. at 3-5 (explaining other physical effects of obesity and citing studies).

The AMA expressly found that obesity impairs normal functioning of the body.

AMA Resolution, supra. In addition, complications of obesity include many other

medical problems, such as diabetes, sleep apnea, osteoarthritis, infertility, cancer,

skin disorders, and intertriginous infections. Merck Manual,supra, at 20. Because

obesity is recognized by the medical community as a physiological disorder, or

condition, and it affects the normal functions of several of the listed body systems.




                                            21
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

it will always meet the WLAD's statutory definition of "impairment." See RCW

49.60.040(7)(c).^

      (c)BNSF's and amici's counterarguments are not persuasive

       Amici NAM et ai. argue that we should not recognize obesity as an

impairment because it will have a stigmatizing effect on obese individuals. See Br.

of Amici Curiae NAM et al. at 13-15. However, in this case, BNSF told Taylor that

it would not hire him because it perceived him as having "extreme obesity," and he

could not afford supplemental medical testing. 2 BR at 147. It is difficult to see how

protection under the WLAD will produce more psychological harm than is caused

by companies freely and openly refusing to hire people because oftheir obesity. The

Merck Manual recognizes that "[ojbesity leads to social, economic, and psychologic

problems as a result of prejudice, discrimination, poor body image, and low self-

esteem. For example, people may be underemployed or unemployed." Merck

Manual, supra, at 20. We construe the definition of "impairment" in order to

effectuate the purposes of the WLAD—^remedying and preventing this kind of

discrimination. See Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 500, 325 P.3d

193(2014)("Washington courts construe the WLAD's protections broadly."); RCW




        ^ The dissent's suggestion that a person can have obesity without it affecting any of the
listed body systems is inconsistent with the medical science. Because obesity always affects
systems of the body, a person who had a high BMI but whose body systems were not affected
would not have obesity and therefore would not be covered by this opinion.
                                              22
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

49.60.020 (instructing courts to construe the WLAD "liberally for the

accomplishment ofthe purposes thereof);see also RCW 49.60.040(using the broad

and illustrative language of"includes, but is not limited to" to define what qualifies

as an impairment under the WLAD).

      BNSF also relies on the HRC's published "Frequently Asked Questions and

Answers" to argue that obesity is not a disability. See WASH.STATE HUMAN Rights

CoMM'N, Guide to Disability and Washington State Nondiscrimination

Laws: Frequently Asked Questions and Answers (2012). According to the

HRC:


       In Washington State, the Legislature has enacted a broad definition of
       disability that increases protections for persons with medical,
       psychological, and other impairments. The Washington definition is
       different than the definition found in the Americans with Disabilities
       Act . . .-it is broader, covers more medical conditions, and is not
       restricted to a condition that substantially limits a major life activity.

Id. at 2. However, this guide also explains that "[pjhysical traits such as being left

handed or being short are not disabilities. (Though there are medical and genetic

conditions that cause extreme short stature that are disabilities.)" Id. at 4. BNSF

argues that because weight is a physical trait, it is not a disability under the WLAD.

According to BNSF,"Nobody is described as 'suffering from' their . .. weight." Br.

of Appellees on Certified Question at 7. Again, BNSF confuses the question before




                                          23
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

us, conflating "weight" with "obesity."^ People are described as suffering from

obesity. See, e.g.. Martini v. Boeing Co., 88 Wn.App.442,446,945 P.2d 248(1997)

(mentioning that the plaintiff had been diagnosed as "suffering from chronic

depression, heart disease, and obesity" in a disability discrimination case (emphasis

added)), aff'd, 137 Wn. 2d 357, 971 P.2d 45 (1999). Obesity is not a physical trait.

It is a disease. See supra Section TLB.3(a); see also Equal Emp't Opportunity

Comm'n v. Res.for Human Dev., Inc., 827 F. Supp. 2d 688, 691 (E.D. La. 2011)

(noting that on the plaintiffs "death certificate, the official cause of death listed was

'morbid obesity'"); Merck Manual,supra, at 19("[0]besity and its complications

cause as many as 300,000 premature deaths each year.").

       The evidence presented to us shows that obesity is always an impairment

under the WLAD because it is a "physiological disorder, or condition . . . affecting

one or more of the [listed] body systems." See RCW 49.60.040(7)(c)(i). BNSF

argues that we should follow the rulings ofsome federal courts interpreting the ADA

and hold that obesity can be a disability only if it is caused by a separate, underlying

physiological disorder. We decline to do so. The WLAD is broader than the ADA

and offers its own independent protections to Washingtonians.



       ^ Merely being overweight is not an impairment under the WLAD, but obesity is.
Therefore, plaintiffs making disability discrimination claims must show that their obesity "[i]s
medically cognizable or diagnosable," "[ejxists as a record or history," or "[i]s perceived to exist
whether or not it exists in fact." RCW 49.60.040(7)(a). In reasonable accommodation cases,
plaintiffs must show that they actually have obesity. RCW 49.60.040(7)(d).
                                                24
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5

                                III. CONCLUSION


      We answer the certified question as follows—obesity always qualifies as an

impairment under the plain language of ROW 49.60.040(7)(c)(i) because it is a

"physiological disorder, or condition" that affects many of the listed body systems.

Plaintiffs making a disparate treatment claim under the WLAD need not show that

they actually had an impairment, e.g., that they actually were suffering from obesity.

They need show only that their actual or potential employers perceived them to have

a statutory impairment. RCW 49.60.040(7)(a)(iii). Because obesity qualifies as an

impairment under the plain language of our statute, it is illegal for employers in

Washington to refuse to hire qualified potential employees because the employer

perceives them to be obese. See RCW 49.60.180.




                                         25
Taylor v. Burlington N. R.R. Holdings, Inc., No. 96335-5



                                              HjaIajAaJ: d.J'

WE CONCUR:




                                                           h,u-




                                        -26
Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)




                                       No. 96335-5


      YU,J. (dissenting) — I agree with the majority that obesity does not have to

be caused by a separate physiological disorder or condition to qualify as an

impairment pursuant to the RCW 49.60.040(7)(c)(i). Majority at 5. I also agree

that obesity, as a physiological disorder or condition, is distinct from weight, which

is a physical trait. See id. at 23-24. And the majority is correct that "[ojbesity is

not merely the status of being overweight," id. at 12, and that there is growing

consensus in the medical community that obesity is itself a disease, id. at 14. But

because the diagnostic line between "overweight" and "obese" is a function of an

individual's weight in relationship to their height, I do not agree that "obesity

always qualifies as an impairment under the plain language ofthe RCW

49.60.040(7)(c)(i)." Id. at 2.

      I would reframe the certified question slightly to ask under what

circumstances, if any, obesity is a disability for purposes ofthe Washington Law

Against Discrimination(WLAD),ch. 49.60 RCW. According to the plain
Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)

language of the statute, obesity is a disability if(i) the plaintiffs obesity is

medically cognizable, medically diagnosable, exists as a record or history, or is

perceived to exist whether or not it actually does, RCW 49.60.040(7)(a), and (ii)

the plaintiffs obesity impairs one or more body systems listed in RCW

49.60.040(7)(c)(i). This approach avoids a per se rule that could extend WLAD

protections to individuals who are not disabled and avoids the stigma of labeling

all individuals over a certain height to weight ratio as impaired.

A. Defining obesity

       The majority states that obesity involves "an abnormal accumulation of fat

cells." Id. at 14. But, as the majority explains, obesity as a disease is more than

"'a quantitative excess of body fat.'" Id. at 15 (quoting Jeffrey I. Mechanick et ah,

American Association ofClinical Endocrinologists'Position Statement on Obesity

and Obesity Medicine, 18 ENDOCRINE Prac. 642, 644 (2012)). Instead,'"obesity

is an altered physiological and metabolic state, with environmental, genetic, and

hormonal determinants, which results in increased morbidity and mortality.'" Id.

(emphasis omitted)(quoting Mechanick et ah,supra, at 644). This begs the

question: At what point does an excess of body fat make an individual "obese"?'



      'The parties and amiei have cited to dozens of scientific journals and scholarly articles to
aid our understanding of obesity and its effects on the body. One thing is clear from the
literature—there is disagreement in the medical community on how to measure obesity and what
effects it has on the various systems of the body. Courts can evaluate impairment from obesity
Taylor v. Burlington N R.R. Holdings, No. 96335-5
Yu, J. (dissenting)

       "The National Institutes of Health and the World Health Organization have

both adopted BMI[body mass index] as a criterion for defining obesity." George

A. Bray et ah, The Science ofObesity Management: An Endocrine Society

Scientific Statement, 39 ENDOCRINE Revs. 79, 81 (2018); see also The Merck

Manual of Diagnosis and Therapy 19(Robert S. Porter et ah eds., 20th ed.

2018)("Obesity is excess body weight, defined as a body mass index [greater than

or equal to 30]."). BMI is considered a useful population-level measure of obesity

but has been questioned by some experts as inadequate for diagnosis of

individuals. See, e.g., Nat'l Heart,Lung & Blood Inst., U.S. Dep't of Health

& Human Servs., Managing Overweight and Obesity in Adults: Systematic

Evidence Review FROM THE Obesity Expert Panel 5 (2013)("BMI correlates

fairly well with total body fat on a population basis; however, it has limitations in

predicting excess body fat associated with health risk on an individual basis.");

Louise J. Aronne et ah. Obesity as a Disease State: A New Paradigm for Diagnosis

and Treatment, 9 CLINICAL CORNERSTONE 9, 13 (2009)("[I]ndividuals with similar

BMIs can have vastly different body compositions."); Mechanick et ah, supra, at

645("BMI.. . neglects the extent to which any increase in adiposity adversely

alters physiology, metabolism, and health.").



on an individual basis. But the legislature is the proper body to evaluate all ofthe available
information and make a policy decision on whether obesity is a per se impairment and the
medical factors that should be considered.
 Taylor v. Burlington N. R.R. Holdings, No. 96335-5
 Yu, J. (dissenting)
                  I

        BMI does not distinguish weight associated with muscle from weight

 associated with fat. Bray et al., supra, at 82. For example, a professional football

player may have a high BMI because of his weight in relation to his height, but that

 weight is associated with muscle rather than fat.^ BMI has also been criticized for

its inability to distinguish body fat distribution, which is relevant to determining

metabolic risk. Id.


        To be sure, medical practitioners are cautioned to not rely solely on BMI and

to look to other factors when diagnosing obesity. But those factors do not have the

same type of hard and fast classifications that BMI does and often include looking

at the effect on other systems. See The Merck Manual,supra, at 20-21.

B. Impairment should be evaluated individually

        Whether obesity is defined as BMI over 30, an abnormal excess in fat cells,

or some other measure, the WLAD requires a showing that one or more specified

body systems is actually impaired. RCW 49.60.040(7)(c)(i). In many cases, this

requirement will be met by the diagnosis or perception itself.

       According to amici, BMI is "only the first step in diagnosing obesity" and

"misclassification is somewhat common." Amici Curiae Br. of Obesity Action
              j

Coal. & Disability Rights Wash, in Supp. of Appellants at 5. In addition to body


       ^ See Angus Chen,IfBMIIs the Test ofHealth, Many Pro Athletes Would Flunk, NPR
(Feb. 4, 2016, 12:36 PM), https://\vww.npr.org/sections/health-shots/2016/02/04/465569465/if-
bmi-is-the-testrof-health-many-pro-athletes-would-flunk [bttps://perma.cc/5F5X-9W2U].
Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)

composition,"clinical effects of obesity on health, feeling, and functioning are
                 I

considered" as part of a complete diagnosis. Id. at 6. Thus, a medical diagnosis of
                 I




obesity may already include a showing that a particular body system is affected. If

not, the plaintiff would be required to provide additional evidence to meet the

requirements!of the WLAD. See generally Henry C. Lukaski, Commentary: Body

Mass Index P^ersists as a Sensible Beginning to Comprehensive Risk Assessment,
43 Int'l J. Epidemiology 669,670(2014)(discussing the "metabolically healthy

obese").

      In this case, Casey Taylor was diagnosed as extremely obese by BNSF's

physician based on his BMI. 2 Excerpts of Record(ER)at 147. His obesity was

perceived to affect "other health conditions," including sleep apnea and diabetes.

Id. at 164. Sleep apnea affects the respiratory system, and diabetes affects the

endocrine system. Thus, Taylor's obesity was (a) medically diagnosed or

perceived an'd (b) perceived to affect at least one or more body systems.
C. Implicatipns beyond employment
             j
       We typically provide narrow answers to certified questions from federal

courts. See, \e.g.. Hill v. Xerox Bus. Servs., LLC, 191 Wn.2d 751, 760, 426 P.3d
             i
703 (2018). jThe court's broad holding that obesity always qualifies as an
impairment under the plain language of the WLAD has potentially far-reaching

consequences beyond those considered in this case.
Taylor v. Burlii^gton N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)

       As an example, RCW 49.60.215 makes it an unfair practice "to commit an

act which dir ectiy   or indirectly results in any distinction, restriction, or

discriminaticjn ... in any place of public resort, accommodation, assemblage, or
amusement" because of the presence of a disability. A place of public

accommodation must reasonably accommodate "the known physical, sensory, or

mental limitations of a person with a disability." WAC 162-26-080. But unlike
                  I
                  I



reasonable accommodations in the employment context, no showing of actual
                  1

impairment or substantially limiting effect is required. See majority at 11 n.4; see

also RCW 49.60.040(7)(d). In guidance to operators of places of public

accommodation,the Human Rights Commission explains that a "disability may be

obvious, such as a person who uses a wheelchair" or that a person "may need to

inform you of the disability." WASH. State Human Rights Comm'n, Guide to

Disability and Washington StateNondiscrimination Laws:Frequently

Asked Questions and Answers 13 (2012). An operator making a good faith

attempt to comply with the law risks offending some patrons by assuming they are

disabled because oftheir weight or risks opening themselves up to liability to

patrons who claim their disability should have been "obvious" from their
              i
appearance. ■ I am concerned about the uncertainty and the far-reaching impact of

the court's decision.
Taylor v. Burlington N. R.R. Holdings, No. 96335-5
Yu, J. (dissenting)

D. Conclusion


       Obesity is a disability for purposes of the WLAD when (a)the plaintiffs

obesity is medically cognizable, medically diagnosable, exists as a record or

history, or is perceived to exist whether or not it actually does and (b)the

plaintiffs obesity impairs one or more body systems listed in ROW

49.60.040(7)(c)(i). The majority's answer to the certified questions, that obesity is

always an impairment for purposes of the WLAD,ignores the need for an

individualized inquiry. Therefore, I respectfully dissent.
Taylor V. Burlington N. R.R. Holdings,'^o. 96335-5
Yu, J. (dissenting)
