New discrimination cases and allegations saturate our news feeds almost every day. Discriminatory practices can lead to eye-popping civil liability and you would be hard-pressed to find a businessperson in this valley who doesn’t respect the dangers of discrimination, particularly in the employment context.
But what actually constitutes discrimination is a quickly changing landscape, filled with traps (call them land mines) for the unwary. Discrimination law (employment law specifically) is confusing and characterized by often nebulous standards and requirements — an undeniable boon for plaintiff-side litigators and the bane of even the best-natured employers. It is remarkably complicated because it involves complex and interwoven state and federal statutory schemes. And it is experiencing an evolution, quickly expanding in an attempt to address cultural shifts on both the state and federal levels.
Our state has embraced this evolution quicker than most.
Washington’s Law Against Discrimination (“WLAD”) is (and has always been) generally more protective than federal discrimination law. It prohibits discrimination on a number of bases including the presence of any physical disability or “impairment.” On July 11, 2019 the Washington Supreme Court held that obesity is a disability protected by the WLAD. The 7-2 majority used some noticeably categorical language, explaining that “obesity always qualifies as an impairment under the [WLAD] because it is recognized by the medical community as a ‘physiological disorder, or condition'…. 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 the section of the WLAD.”
Strong language bookmarking a murky standard.
After the Supreme Court’s opinion, it is clear that employers cannot refuse to hire someone or fire someone because they are obese. Stated otherwise, obese employees are protected from employment decisions based exclusively on their obesity. Employers need not hire or continue employing someone who, as a result of obesity, is unable to properly perform the position — i.e. cannot meet a “bona fide occupational qualification.” But employers must be prepared to adopt “reasonable accommodations” for such individuals unless doing so would constitute an “undue hardship.” What constitutes a “bona fide occupational qualification” or a “reasonable accommodation” or even an “undue hardship” is where things get hazy.
Since this is a business publication, the logical question is: “What should employers do now?” The answer isn’t easy; every employer is different and the Supreme Court’s opinion will have wide-ranging impacts on everything from hiring practices to day-to-day operations. But my three-fold general recommendation is as follows: First, if you haven’t already, get Employment Practices Liability Insurance. It pays in spades if you ever find yourself in litigation. Second, take a long hard look at your current policies. Two of the best things employers can do are (1) adopt clear and concise policies regarding hiring, firing, and accommodation practices, and (2) apply those policies strictly and uniformly to all similarly situated employees. Third (and finally), arrange trainings for your team. The best way to avoid a discrimination lawsuit is to teach your people how to do their jobs without discriminating.
Employers should take steps now to determine how this new legal ruling will impact their business. To learn more about this change and what you can do to ensure your business is in compliance, contact me (Devon Gray) or another attorney at JDSA Law. We are here to help.
Devon Gray is an attorney with Jeffers, Danielson, Sonn & Aylward, P.S. practicing in many areas of law including both employee- and employer-side employment law, construction law, and class action litigation. Contact Devon at 662-3685 or DevonG@jdsalaw.com