Can an Employer Require Obese Applicants to Pay for a Medical Exam?

Casey Taylor applied for an electronics technician job with BNSF, a major railroad company. The company offered to hire him. But first, he had to be evaluated by the company’s medical examiner. The doctor found that Taylor could do the job but also concluded he was “morbidly obese.” Taylor weighed 256 pounds, which at a height of 5’6’’ gave him a Body Mass Index (BMI) of 41.3.

BNSF treats a BMI over 40 as a benchmark for further screening in its prehiring process. The upshot is that if a person has a BMI over 40, the company reserves the right not to hire a qualified applicant and to require the applicant to pay for additional medical tests.

The company yanked Taylor’s offer.

BNSF pulled his job offer because Taylor was unable to pay for the additional medical tests it asked him to obtain.

Taylor sued, claiming that this is prohibited by the ADA and Washington state’s counterpart law.

The Ninth Circuit Court of Appeals has ruled that Taylor’s appeal “raises an important question of Washington law” of whether obesity qualifies as an “impairment” under the statute, a question that has never been addressed.

“This court has not yet addressed whether or when obesity qualifies as a disability or impairment under the [Americans with Disabilities Act] and … other jurisdictions are divided on that question,” the panel said. “Because the ADA’s coverage of obesity is an open question in this circuit and, in any event, Washington law may [provide] broader [coverage], we conclude it is appropriate to certify this important question of Washington law to the Washington Supreme Court.”

The panel of judges also said that for Taylor to win his suit he would have to prove both that obesity constitutes a disability under the state statute and that BNSF pulled his job offer because he was unable to pay for the additional medical tests it asked him to obtain.

As to the second prong, the panel noted that it just issued a ruling a few weeks ago in another case involving BNSF where the panel held that businesses can’t require individuals with disabilities to pay for their own follow-up medical testing during the hiring process, and that BNSF illegally rescinded a job offer when the applicant in that case declined to pay for an MRI.