SALT LAKE CITY — Ultra-runner Mirna Valerio has completed multiple marathons, some when she weighed about 250 pounds.
But if she lived in Washington state, the Georgia woman would be categorized as disabled, along with nearly 30 percent of the workforce there.
In a July 11 ruling, the state's Supreme Court said obesity, in every case, is a disability that entitles people to accommodations and protection from workplace discrimination. The decision stemmed from a 2007 lawsuit filed by a man whose provisional offer of employment was withdrawn after the company got the results of his medical exam.
Casey Taylor, a former Marine who is 5 feet, 7 inches tall, weighed 256 pounds when he applied for a job as an electronics technician at BNSF Railroad Company. Taylor's body mass index was 41.3, according to court filings.
The railroad company had a policy of not hiring anyone with a BMI of 35 or greater. Taylor was told he could have the job if he lost 10 percent of his body weight (about 25 pounds) and kept it off for six months, or submitted to extensive medical testing, at his own expense.
Instead, Taylor sued, and in subsequent proceedings, the state Supreme Court was asked to decide "under what circumstances, if any, does obesity qualify as an impairment" under the state's discrimination laws.
Seven of nine justices agreed that obesity, regardless of cause, always qualifies as an impairment deserving of legal protections.
In recent years, the body positive movement has sought to destigmatize obesity, which public health officials consider an epidemic. But the court's decision goes beyond "fat acceptance" and adds to arguments that excess weight and its consequences comprise a disease, which is what the American Medical Association says.
Some doctors, including obesity specialist Dr. Yoni Freedhoff in Canada, say that people should not be called obese; instead, he says, we should say that people "have" obesity, like we say someone has diabetes or cancer.
The Washington justices said obesity is a physiological disorder that affects multiple body systems, like other forms of disability. But their decision is controversial, not only because of disagreement about the causes of obesity, but also because people can fall within the Centers for Disease Control and Prevention's range of weight categorized as obese, and still be healthy and fit, like Valerio, the marathon runner in Georgia.
In fact, the CDC says that a high BMI "can be" an indicator of high body fatness — not "is."
One Washington attorney is warning that the new ruling will have "significant consequences" for employers in the state. Here's what he says could happen, and what people are saying on both sides of the debate.
Causes and effects
On its website, the CDC says obesity is a "complex health issue" with a variety of causes, including behavior and genetics.
"Behaviors can include dietary patterns, physical activity, inactivity, medication use and other exposures. Additional contributing factors in our society include the food and physical activity environment, education and skills, and food marketing and promotion," the CDC says.
The agency suggests that people who have, or are at risk for, obesity exercise and eat more healthfully. But it also notes that some scientists believe variations in genes can contribute to obesity by increasing hunger, thus causing people to eat more.
"Rarely, a clear pattern of inherited obesity within a family is caused by a specific variant of a single gene (monogenic obesity). Most obesity, however, probably results from complex interactions among multiple genes and environmental factors that remain poorly understood (multifactorial obesity)," the CDC says.
While the causes of Taylor's obesity are not discussed in court filings, his lawsuit was filed three years after he was rejected for the job.
The case began in King County Superior Court, but was then removed to federal court, where a summary judgment was granted to BNSF on grounds that a plaintiff alleging obesity discrimination must prove that the obesity "is caused by a physiological condition or disorder or or that the defendant perceived the plaintiff's obesity as having such a cause." The case was dismissed.
Taylor, however, appealed, and U.S. Court of Appeals for the 9th Circuit deemed the extent to which obesity is a disability "an unresolved issue of state law," which sent the question to the state Supreme Court.
In their decision, the justices said Washington state has a "broader" interpretation of disability than the federal Americans with Disabilities Act, enacted in 1990, and doesn't care to use the federal statute as a template. They go on to cite research that says obesity is not only a primary disease, but a disorder.
Moreover, the justices said, "It is undisputed that Taylor did not get or keep the job in question because BNSF perceived him as obese."
In its defense, the railroad company said that Taylor's condition posed health and safety risks relative to the job, and noted that weight, unlike many other disabilities, is not immutable.
The National Association of Manufacturers, presenting as amici, or friend of the court, argued that obesity is also not considered an abnormality, given that nearly 40 percent of Americans fit the definition of obese.
In her dissent, Justice Mary Yu argued that BMI readings don't distinguish between the weight of muscle and fat.
"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," she wrote.
Taylor's BMI was the sole reason for his diagnosis as obese, when BMI should more properly be a first step in such a diagnosis, the dissent said. It also warned that "The 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."
What happens now
According to U.S. Census Bureau, about 40 million Americans (nearly 13 percent of the civilian, noninstitutionalized population) have a disability of some kind. The rate of disability is highest in West Virginia, 20.2 percent, and lowest in Utah, 9.6 percent.
In his analysis of the ruling, Seattle attorney Benjamin J. Stone called the decision problematic and troubling.
"This ruling means that approximately 30 percent of the state's workers are now disabled, and any of them can now sue after being turned down for a job, rejected for a promotion, disciplined or terminated," Stone wrote for Mondaq.com.
And writing in Reason, Ben McDonald said, "This massive increase in the number of people who are part of a protected class is likely to result in significant new government intrusions in hiring, firing and other H.R. decisions, as well as large new potential claims on government benefits."
McDonald also warned of unintended consequences: "Such categorizations can end up harming the very people they are meant to help. Employers may hire people for jobs they will be unable to perform or discriminate against them in stealthier ways."
But such protections may be expanding nationwide. Massachusetts is among states considering legislation to protect workers with obesity from discrimination, according to The Washington Post.
Currently, Michigan is the only state with a law preventing discrimination against overweight people, although some cities, including San Francisco and Urbana, Illinois, also offer protection, according to the National Association to Advance Fat Acceptance.
Supporters of such measures say they are necessary because of widespread prejudice toward people who are overweight.
"A study published this year by two Harvard psychologists found that overtly negative attitudes toward people based on body weight had declined by only 15 percent from 2004 to 2016; in contrast, explicit racism dropped by 37 percent and explicit anti-gay feelings by nearly half," wrote Rebecca Puhl, deputy director of the Rudd Center for Food Policy and Obesity at the University of Connecticut, in the Post.
"Even more strikingly, when the researchers examined “implicit” bias — unconsciously held attitudes, revealed through careful laboratory testing — weight bias (unlike every other type) appeared to be getting slightly worse over time," Puhl wrote.
And in U.S. News and World Report, attorney Mike Subit, who filed a friend-of-the-court brief for the Washington Employment Lawyers Association, said, "I hope this ruling will lead to a sea change in the way that courts think about obesity and disability law."
As for Taylor, the former Marine at the center of the Washington case, the lawsuit goes on. According to The Associated Press, with the Supreme Court's decision, the case now returns to the 9th Circuit.