Today’s blog entry is a two-for-one. First off, with respect to being late this week, my daughter started her second year of high school today. So, this week was her last week of summer break, and as you can imagine, things were pretty hectic around here. But, we are now back to the school routine.

Turning to the blog entry of the day, as mentioned above, it is a two-for-one. First, the blog will explore the issue of whether obesity is a disability. We will explore a very interesting case from the State of Washington. Second, what happens if you have a legislator with a disability who can’t get to the same starting line as a legislator without a disability due to another legislator refusing to accommodate him. What title of the ADA does that legislator turn to. As usual, the blog entry is divided into categories and they are: background with respect to whether obesity is a disability; Taylor facts; Washington Supreme Court’s reasoning that obesity is always a disability under Washington law; Taylor takeaways; what’s going on in Wisconsin? Introduction; and let’s break this down. Of course, the reader is free to focus on any or all of the categories.

I

Background with Respect to Whether Obesity Is a Disability

In Taylor v. Burlington Northern Rail Holdings, Inc., The Washington Supreme Court received a certification request from the Ninth Circuit with respect to whether under Washington law obesity was a disability. People who follow the ADA know whether obesity is a disability under the ADA is complicated. The courts aren’t unanimous on it. However, the majority view in a big way is for obesity to be a disability under the ADA, there must be an underlying physical or mental impairment. Absent an underlying physical or mental impairment, a person with obesity is not a person with a disability under the ADA. This case raises a very important point that States often have their own antidiscrimination laws. Those laws may look at things very differently from the ADA.

II

Taylor Facts

In 2007, Taylor received a conditional offer of employment as an electronic technician from the defendant. The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor met the minimum physical demands of the essential functions of an electronic technician. However, the medical exam found that Taylor’s height was 5’6” and weighed 256 pounds resulting in a BMI of 41.3. Since a BMI over 40 is considered severely or morbidly obese, the defendant treated that as a trigger for further screening in the employment process. As a result, his results were referred to defendant’s chief medical officer who told Taylor that they were unable to determine whether he was medically qualified for the job due to significant health and safety risks associated with extreme obesity and uncertain status of knees and back. The defendant offered to reconsider if Taylor paid for expensive medical testing, including a sleep study, bloodwork, and an exercise tolerance test. The defendant also told Taylor that it was company policy to not hire anyone having a BMI over 35 and that if he could not afford the testing, his only option was to lose 10% of his weight and keep it off for six months. Taylor could not afford the testing because he was unemployed and did not have medical insurance or VA benefits. So, he filed suit in Washington State court and the suit was removed to federal court. At the federal court level, the judge relied on the majority rule with respect to obesity and found that Taylor was not a person with a disability under the ADA because he could not show that the obesity was caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause. On appeal to the Ninth Circuit, the Ninth Circuit stated that whether obesity was a disability under Washington State law was unresolved and certified the question to the Washington Supreme Court. The Washington Supreme Court accepted that certification.

III

Washington Supreme Court’s Reasoning That Obesity Is Always a Disability under Washington Law

  1. Washington law makes it an unfair practice for an employer to refuse to hire any person because of the presence of any sensory, mental, or physical disability unless based upon a bona fide occupational qualification.
  2. Washington law defines a disability as a sensory, mental, or physical impairment that: 1) is medically cognizable or diagnosable; or 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.
  3. Under Washington law, 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.
  4. What is an impairment under Washington law is either of the following: 1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or 2) 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.
  5. The debate is over whether obesity is a physiological disorder or condition under Washington law.
  6. The Washington Human Rights Commission has said that a person is considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition and the condition is abnormal.
  7. In a prior case, the Washington Supreme Court has said that an employee is disabled if they have a sensory, mental, or physical a abnormality and such abnormality has a substantially limiting effect upon the individual’s ability to perform his or her job.
  8. In response to previous opinions of the Washington Supreme Court, the Washington legislature in amending Washington law expressly found that the Washington Law against Discrimination affords residents of Washington protections independent of those afforded by the ADA and that those protections existed for many years prior to the advent of the ADA. In making those changes the legislature chose to define disability very broadly including explaining that impairment includes but is not limited to any physiological disorder or condition affecting one or more body systems.
  9. In a case such as this, all plaintiff need to show is the employer perceived the employee as having an impairment.
  10. The medical community recognizes obesity 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 body systems.
  11. Obesity qualifies as an impairment that is physiological because it involves the organic process and phenomena of an organism-the excessive accumulation of fat cells.
  12. The medical community recognizes obesity as a disorder.
  13. Just because obesity is often diagnosed by measuring weight doesn’t mean that it is not a physiological disorder affecting body systems.
  14. Overwhelming consensus in the medical community is that obesity is a disease in and of itself.
  15. Obesity satisfies the AMA criteria for labeling something a disease. That recognition of obesity as a disease is supportive of the conclusion obesity is a physiological disorder under the Washington statute.
  16. While the Washington statute does not define disorder, Webster’s does. A disorder under Webster’s is a derangement of function and an abnormal physical or mental condition. A disease fits within that definition.
  17. While the Washington legislature did not provide a definition of “condition,” the Washington Human Rights Commission did. According to Washington Human Rights Commission 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. The Human Rights Commission definition of “condition,” has to be given great weight since the Human Rights Commission is responsible for administering the Washington law against discrimination. The Washington Court of Appeals has previously adopted the Human Rights Commission view of what a condition is.
  18. While the Human Rights Commission doesn’t define the word abnormal, the medical evidence shows obesity is an abnormal condition. The AMA has stated that obesity is a disease involving abnormal energy balance and abnormal endothelial function resulting in metabolic abnormalities even after weight loss.
  19. The medical evidence also shows that obesity itself affects one or more body systems including neurological, musculoskeletal, special sense organ, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. In particular, Amicus brief described in detail just how obesity itself affects the cardiovascular or circular system, the musculoskeletal system, the lymphatic system, and the endocrine system.
  20. The court had trouble understanding how finding obesity is a disability would produce more psychological harm than is already caused by companies freely and openly refusing to hire people because of their obesity. Obesity after all leads to social, economic, and psychological problems as a result of prejudice, discrimination, poor body image, and low self-esteem. Oftentimes, obese people are underemployed or unemployed.
  21. Washington Law against Discrimination must view the definition of impairment broadly in order to effectuate the purposes of that law.
  22. Washington Law against Discrimination is broader than the ADA and offers its own independent protection to Washingtonians.

IV

Taylor Takeaways

  1. When it comes to disability discrimination, the ADA isn’t the end-all and be-all, though it is in Georgia. It is not unusual for States to have their own antidiscrimination laws when it comes to people with disabilities. Those laws may extend coverage to employers of less than 15 or more. Those laws also may define disability very very differently. Finally, those laws may have different remedies associated with them. Accordingly, the ADA is only one thing to look at. You have to look at state law as well.
  2. Washington Law Against Discrimination defines disability very differently from the ADA. While impairment under Washington law, judging from the case, appears to resemble the ADA, the other part of the definition of a disability is quite a bit different as it talks about whether the mental or physical impairment or sensory impairment is medically cognizable or diagnosable. That makes things considerably broader than the ADA in its scope of coverage.
  3. Did I mention that I am not an attorney licensed in Washington. When it comes to state antidiscrimination laws affecting people with disabilities, always be sure to find an attorney who can interpret that state law for you. Generally, that means an attorney licensed in the applicable State.
  4. Will you now see a movement by the legislators in Washington to change the definition of disability under the Washington Law against Discrimination to something more similar to the ADA. As mentioned above, “impairment,” in Washington law is quite similar to the ADA. It is the disability part that is considerably different. I don’t know what the answer to this question is, but it wouldn’t surprise me if you see an effort to amend the Washington Law against Discrimination to match the ADA.
  5. Two problems with this case are that the Washington Supreme Court doesn’t really define what obesity is. It just assumes obesity is a BMI over 40. Also, the Washington Supreme Court says that obesity is always a disability and that it never depends. The decision that obesity is always a disability and never depends is what drove Justice Yu to dissent. His view is that obesity should not be a per se rule but should be based upon an individualized inquiry as such an approach fits better with how disability discrimination statutes, such as the ADA, generally work.
  6. Those who are followers of Chevron deference matters, can see that the Washington Supreme Court essentially adopted that approach with respect to how the Human Rights Commission defined various terms. Note, that the Human Rights Commission had specific authority from the legislature to implement the Washington Law Against Discrimination.

V

What’s going on in Wisconsin?: Introduction

In Wisconsin, there is a legislator who uses a wheelchair. The story can be found here. Basically, the legislator is a Democrat who uses a wheelchair and a personal attendant is necessary many times. There are time because of his health and the lack of an ability to find a personal attendant that it makes sense for him to be able to dial in or use videoconferencing to attend some of his obligations. The chair is a Republican and is refusing to allow that accommodation and insists upon the legislator being personally there. I have seen the article pop up in several different places on the Internet. What is interesting, is that the article never seem to take into account title II of the ADA. Some of the articles that I have read said that if the legislator was an employee, then title I applies, but since he is a legislator all bets are off.

VI

Let’s Break This down.

One of the things I have consistently seen over the years, is ADA knowledge is quite high among attorneys practicing in title I of the ADA. On the plaintiff side, you will find attorneys who litigate on behalf of plaintiffs with respect to employment discrimination claims involving persons with disability. The defense bar responding to those lawsuits is generally quite knowledgeable and not afraid to retain people, such as myself, who are knowledgeable if requisite knowledge is lacking. The defense bar also gets involved in counseling employers on disability discrimination matters. However, once you move into title II and title III of the ADA, the knowledge base among attorneys goes way down. What is wild about this situation is that title I and title II are involved at the same time. It is rare you see that. In fact, I have only seen it once; many years ago, when I consulted on such a case.

With respect to title I, assuredly the Democratic legislator is being paid for his efforts. Who is the entity paying him? It is probably the State of Wisconsin. Surely, the State of Wisconsin or whatever entity is paying him has more than 15 employees. So, the entity that is paying him has independent ADA obligations to ensure that one of their employees receives reasonable accommodations for his or her disability. As we have mentioned too many times to count, under title I of the ADA, accommodations must be made unless an undue hardship is involved. Undue hardship can either be financial or logistical. As we have also mentioned previously, financial hardship is very difficult to show as you look to the overall governmental resources and not to the budget item. For undue hardship in the logistical sense, readers of the blog know to think in terms of fundamental alteration. I don’t see how either applies to the case of the Democratic lawmaker seeking the ability to dial in or to videoconference. Of course, you have the question of whether the Democratic legislator is a qualified person with a disability. I don’t see how that is an issue here. Clearly, the Democratic lawmaker has a disability. By virtue of being elected, he has the requisite skill, experience, etc. to be a legislator. The question then becomes can he do the job with or without reasonable accommodations. He has recommended accommodations and has been turned down. So, whoever is employing the Democratic legislator has a problem on their hands with respect to the actions of the Republican chair. At a minimum, an interactive process should ensue to see if everyone can get to a win-win. Of course, I’m assuming that legislators and Wisconsin are employees in the first place and not independent contractors. If by some chance legislators in Wisconsin are actually independent contractors, I don’t see how that is possible but even so…, Then the Democratic legislator would still have claims under title II of the ADA and §504.

It doesn’t end there. With respect to title II, there may be a claim there as well. After all, a public entity is involved. We are also talking about accessing the programs, services, and activities of a public entity, i.e. legislative proceedings. Under title II of the ADA, reasonable accommodations have to be made unless you are dealing with an undue hardship or a fundamental alteration. As we have discussed previously many times, undue hardship and undue burden mean the same thing. Fundamental alteration is essentially logistical undue hardship. For the reasons mentioned above, I don’t see how either undue burden or fundamental alteration work as a defense in this situation. Again, you have the question of whether the Democratic legislator is a qualified person with a disability. Whether a person is a qualified person with a disability under title II of the ADA has a different definition than in title I of the ADA. Again, the Democratic legislator gets by this hurdle rather easily. He is, as mentioned above, a person with a disability. As for being qualified, he also meets the essential eligibility requirements of the program, activity, or services as well, i.e. he is qualified to be a state legislator and to participate in all legislative proceedings with or without reasonable accommodations. So, bottom line, the Democratic legislator has both a title I claim and a title II claim against the entity paying both him and the chair. With respect to title I, it is entirely possible that the S grin tate of Wisconsin may be able to claim sovereign immunity per Board of Trustees of the University of Alabama v. Garrett. However, the state of Wisconsin is going to have a much harder time claiming sovereign immunity with respect to our Democratic legislator’s title II claim as we are talking about legislative activities. See this blog entry. Also, since federal funds are undoubtedly involved as well, our Democratic legislator probably has a §504 claim as well. In many jurisdictions, receipt of federal funds waves sovereign immunity under §504.

In short, the chair and the entity paying the chair and the Democratic legislator need to get together to engage in the interactive process so that the Democratic legislator can do his job with or without reasonable accommodations. Failure to do that could very well lead to title I, title II, and §504 claims. In addition, such a lawsuit would be horrible publicity. Finally, from the little facts we do know, such a lawsuit would have a high probability of success thereby forcing the state of Wisconsin to pay attorney fees for themselves as well as for the Democratic legislator. Finally, if the Democratic legislator were to be retaliated against for bringing the lawsuit, that would result in additional claims. The retaliation claims would then relate back to both title I and to title II as well as to §504. In that situation, whether damages would be allowed in the ADA claims, would depend upon the particular title of the ADA involved. That is, no damages for retaliation under title I per this blog entry, but damages upon a showing of the deliberate indifference (see this blog entry for discussion of deliberate indifference), for violating title II.

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William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.