                 FOR PUBLICATION

 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

CASEY TAYLOR; ANGELINA                No. 16-35205
TAYLOR, husband and wife and
the marital community                    D.C. No.
composed thereof,                   2:11-cv-01289-JLR
           Plaintiffs-Appellants,

               v.                       ORDER
                                     CERTIFYING A
BURLINGTON NORTHERN                 QUESTION TO THE
RAILROAD HOLDINGS INC., a            WASHINGTON
Delaware Corporation licensed       SUPREME COURT
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.

                Filed September 17, 2018

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

                          Order
2                       TAYLOR V. BNRH

                          SUMMARY *


                 Employment Discrimination

    The panel certified to the Washington Supreme Court the
following question:

        Under what circumstances, if any, does
        obesity qualify as an “impairment” under the
        Washington Law against Discrimination,
        Wash. Rev. Code § 49.60.040?



                           COUNSEL

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

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                     TAYLOR V. BNRH                         3

Commission, Washington, D.C.; for Amicus Curiae Equal
Employment Opportunity Commission.


                          ORDER

    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
4                     TAYLOR V. BNRH

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, ___
F.3d ____ (9th Cir. Aug. 29, 2018), that an employer
engages in prohibited discrimination under the federal
                    TAYLOR V. BNRH                       5

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; ___ F.3d at _____. 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., 325 P.3d 193, 197–98 (Wash.
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.
6                     TAYLOR V. BNRH

    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
                     TAYLOR V. BNRH                          7

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,”
8                     TAYLOR V. BNRH

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.,
70 P.3d 126, 132 (Wash. 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


    1
      Because Taylor does not contend his perceived obesity has a
physiological cause, we need not address that question.
                     TAYLOR V. BNRH                          9

       (2) Any mental or psychological disorder,
       such as an intellectual disability (formerly
       termed “mental retardation”), organic brain
       syndrome, emotional or mental illness, and
       specific learning disabilities.

29 C.F.R. § 1630.2(h).

    This definition is similar to the WLAD definition but is
narrower in two potentially significant respects. First, unlike
the WLAD, the ADA regulation does not include a comma
after “disorder” and before “or condition.” Thus, from a
purely textual standpoint, the ADA regulation may apply
only to “physiological” conditions, whereas WLAD appears
to apply to conditions irrespective of physiological cause.
The ADA, however, included that comma before 2009, and
that pre-2009 definition served as the model for the WLAD
definition. The EEOC eliminated the comma in 2009, after
Congress liberalized the ADA.

    Second, whereas the ADA regulation’s definition of
impairment appears to be exhaustive, the WLAD makes
clear that its definition of impairment is not exhaustive. It
states explicitly that Washington’s definition of impairment
“includes, but is not limited to,” the disorders and conditions
enumerated in § 49.60.040(7)(c).

   2. EEOC Interpretations of § 1630.2(h)

    The Washington Supreme Court may wish to consider
the EEOC’s interpretation of this regulation through
interpretative guidance it has issued. See Turtle Island
Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d
725, 733 (9th Cir. 2017) (explaining that, under Auer v.
Robbins, 519 U.S. 452, 461–62 (1997), we “defer to an
agency’s interpretation of its own ambiguous regulations,
10                   TAYLOR V. BNRH

which controls unless ‘plainly erroneous or inconsistent with
the regulation,’ or where there are grounds to believe that the
interpretation ‘does not reflect the agency’s fair and
considered judgment of the matter in question’” (quoting
Christopher v. SmithKline Beecham Corp., 567 U.S. 142,
155 (2012))). The court may also wish to consider the
amicus brief the EEOC has filed in this appeal, which argues
that the district court misinterpreted its guidance relative to
obesity. See Balvage v. Ryderwood Improvement & Serv.
Ass’n, 642 F.3d 765, 776 (9th Cir. 2011) (“[A]n agency’s
litigation position in an amicus brief is entitled to deference
if there is no reason to suspect that the interpretation does
not reflect the agency’s fair and considered judgment on the
matter.” (quoting Barrientos v. 1801–1825 Morton LLC,
583 F.3d 1197, 1214 (9th Cir. 2009))).

    The EEOC has concluded that obesity constitutes an
impairment under the ADA under some but not all
circumstances. According to the EEOC’s interpretive
guidance:

       It is important to distinguish between
       conditions that are impairments and physical,
       psychological, environmental, cultural, and
       economic characteristics that are not
       impairments. The definition of the term
       “impairment” does not include physical
       characteristics such as eye color, hair color,
       left-handedness, or height, weight, or muscle
       tone that are within “normal” range and are
       not the result of a physiological disorder.
       The definition, likewise, does not include
       characteristic predisposition to illness or
       disease.      Other conditions, such as
       pregnancy, that are not the result of a
                      TAYLOR V. BNRH                         11

       physiological     disorder     are   also    not
       impairments.

       [. . .]

       The definition of an impairment also does not
       include common personality traits such as
       poor judgment or a quick temper where these
       are not symptoms of a mental or
       psychological disorder.

29 C.F.R. pt. 1630, app., § 1630.2(h) (emphasis added).

     In construing this guidance as amicus curiae in support
of Taylor’s position, the EEOC takes the position that weight
(1) is not an impairment when it is within the “normal” range
and lacks a physiological cause but (2) may be an
impairment when it is either outside the “normal” range or
occurs as the result of a physiological disorder. EEOC Br.
at 5–6. The EEOC has not defined “normal” range.

    The EEOC’s position is consistent with a compliance
manual it withdrew in 2012. In that manual, the EEOC took
the position that “normal deviations in height, weight, or
strength that are not the result of a physiological disorder are
not impairments. . . . At extremes, however, such deviations
may constitute impairments.” EEOC Compliance Manual
§ 902.2(c)(5) (2012).

   3. Decisions of Other Circuits Construing the ADA

    Although this court has not yet addressed the issue, three
other federal circuits have considered when obesity qualifies
as a disability under the ADA.
12                   TAYLOR V. BNRH

    The Sixth Circuit has concluded that obesity is an
impairment under the ADA only if it has an underlying
physiological cause. In Andrews v. Ohio, 104 F.3d 803 (6th
Cir. 1997), that court interpreted the EEOC’s guidance –
erroneously, according to Taylor – to mean that “physical
characteristics that are ‘not the result of a physiological
disorder’ are not considered ‘impairments’ for the purposes
of determining either actual or perceived disability.”
104 F.3d at 808. Andrews distinguished the “simple
obesity” of the state troopers in the case from the “severe
obesity” at issue in an earlier case, Cook v. Rhode Island
Department of Mental Health, Retardation & Hospitals,
10 F.3d 17, 25 (1st Cir. 1993), which had affirmed a jury
verdict in favor of a plaintiff who presented expert evidence
that severe obesity “is a physiological disorder involving a
dysfunction of both the metabolic system and the
neurological appetite-suppressing signal system, capable of
causing adverse effects within the musculoskeletal,
respiratory, and cardiovascular systems.” 10 F.3d at 23. In
Andrews, by contrast, the state troopers alleged only that
they had exceeded a weight limit that bore little relation to
their job requirements. See 104 F.3d at 809–10. The court
considered weight a “physical characteristic” which, without
more, did not “equal a physiological disorder” entitled to
protection. Id.

    Like Andrews, the Sixth Circuit’s later decision in EEOC
v. Watkins Motor Lines, Inc., 463 F.3d 436, 442–43 (6th Cir.
2006), rejected the argument that weight far outside the
“normal” range could constitute a physical impairment in the
absence of an underlying physiological disorder or
condition.

   In Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir.
1997), the Second Circuit held that “obesity, except in
                     TAYLOR V. BNRH                        13

special cases where the obesity relates to a physiological
disorder, is not a ‘physical impairment’ within the meaning
of the [ADA].” Francis noted that “a cause of action may
lie against an employer who discriminates against an
employee on the basis of the perception that the employee is
morbidly obese, or suffers from a weight condition that is the
symptom of a physiological disorder.” 129 F.3d at 286
(emphasis added) (citations omitted) (citing Cook, 10 F.3d
at 25). In no case, however, could an employee prevail
“against an employer who simply disciplines [him or her] for
not meeting certain weight guidelines.” Id.

    After these circuit decisions, Congress passed the ADA
Amendments Act, which broadened the definition of a
“disability” by relieving plaintiffs of the requirement to
show an impairment “substantially limit[s]” a major life
activity. ADA Amendments Act of 2008, Pub. L. No. 110-
325, 122 Stat. 3553 (2008). In rejecting federal courts’
narrower interpretations, Congress explained “the definition
of disability . . . shall be construed in favor of broad
coverage . . . to the maximum extent permitted” under the
ADA, adding that “the question of whether an individual’s
impairment is a disability under the ADA should not demand
extensive analysis.” 122 Stat. at 3553–54; see 29 C.F.R.
§ 1630.1(c)(4).

   Nevertheless, in Morriss v. BNSF Railway Co., 817 F.3d
1104, 1108 (8th Cir. 2016), the Eighth Circuit concluded that
the most “natural reading of the [EEOC’s] interpretive
guidance is that an individual’s weight is generally a
physical characteristic that qualifies as a physical
impairment only if it falls outside the normal range and it
occurs as the result of a physiological disorder.”
14                   TAYLOR V. BNRH

C. The Montana Supreme Court’s Construction of
   Montana Law

    In BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012),
the Montana Supreme Court interpreted the meaning of
“impairment” under the Montana Human Rights Act, which
defines “disability” as a “physical or mental impairment that
substantially limits one or more of a person’s major life
activities.” See id. at 228 (citing Mont. Code Ann. § 49-2-
101(19)(a)). In the absence of state authority on the meaning
of “impairment,” Feit followed the EEOC’s interpretive
guidance to hold that “[o]besity that is not the symptom of a
physiological disorder or condition” may constitute an
impairment “if the individual’s weight is outside ‘normal
range’ and affects ‘one or more body systems.’” Id. at 231.

D. Washington’s Broad Interpretation of the WLAD

    Regardless of the scope of ADA protection for
individuals suffering from obesity, which presents an open
question of federal law in this circuit, Washington’s
legislature and courts have made clear that protections under
the WLAD may exceed those under federal law. The
Washington Supreme Court has stated that “the [WLAD]
affords to state residents protections that are wholly
independent of those afforded by the federal [ADA], and . . .
the law against discrimination has provided such protections
for many years prior to passage of the federal act.” Hale v.
Wellpinit Sch. Dist. No. 49, 198 P.3d 1021, 1024 (Wash.
2009); see also, e.g., Kumar, 325 P.3d at 197–98 (explaining
why the WLAD is construed broadly); Martini v. Boeing
Co., 971 P.2d 45, 53–55 (Wash. 1999) (departing from Title
VII’s restriction on back pay where its language differed
from the WLAD). Thus, even if the ADA’s coverage of
obesity is narrow, Washington’s coverage may be broader.
                     TAYLOR V. BNRH                         15

    Taylor, for example, argues the WLAD is broad not
merely in its general approach to disability, but also, more
specifically, in its interpretation of “impairment.” He cites
Clipse v. Commercial Driver Services, Inc., 358 P.3d 464
(Wash. Ct. App. 2015), in which the Washington Court of
Appeals affirmed a jury verdict in favor of a plaintiff whose
employer discriminated against him based on the real and
perceived side effects of prescription methadone. See id. at
473. “Apply[ing] [the] plain language [of the WLAD],” the
court held, for the first time in Washington, that “the side
effects of a prescription drug may constitute a disability”
because “any mental or physical condition may be a
disability.” Id.

    Taylor points out that Clipse did not inquire into the
physiological causes of methadone-related impairments; it
simply applied the “plain language of the statute” and
“construe[d] the statute liberally to effectuate its purpose of
remedying disability discrimination.” Id. Citing Clipse, he
contends that “any mental or physical condition,”
irrespective of its physiological underpinnings, may
constitute an impairment under Washington law.

                  III. Certified Question

    We certify to the Washington Supreme Court the
following question of state law:

       Under what circumstances, if any, does
       obesity qualify as an “impairment” under the
       Washington Law against Discrimination
       (WLAD), Wash. Rev. Code § 49.60.040?
16                    TAYLOR V. BNRH

    We certify this question pursuant to Revised Code of
Washington § 2.60.020. The answer to this question will
determine the outcome of the appeal currently pending in
this court. We will accept and follow the decision of the
Washington Supreme Court on this question, and our
phrasing of the question should not restrict the Washington
Supreme Court’s consideration of the issue.

                              IV.

   Proceedings in this appeal shall be held in abeyance
pending further order of the Court, and the Clerk shall
administratively close this docket until the abeyance is lifted.
This case is withdrawn from submission.

    The Clerk of Court is hereby ordered to transmit to the
Washington Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, a copy of this
order and all briefs and excerpts of record in this matter,
pursuant to Revised Code of Washington §§ 2.60.010(4) and
2.60.030(2) and Washington Rule of Appellate Procedure
16.16(d).

   The parties will notify the Clerk of this court within
seven days after the Washington Supreme Court accepts or
declines certification, and again within seven days if that
court accepts certification and renders an opinion.

   If the Washington Supreme Court accepts certification,
we designate Plaintiffs-Appellants Casey Taylor and
Angelina Taylor to file the first brief in accordance with
Washington Rule of Appellate Procedure 16.16(e)(1).
                    TAYLOR V. BNRH                       17

    This panel retains jurisdiction over further proceedings
in this court.

   SO ORDERED.
