Montana high court says obesity may be impairment

HELENA — The state Supreme Court says obesity qualifies as an impairment in some cases under the Montana Human Rights Act, potentially allowing obese people to seek greater protection against discrimination.

The divided court handed down the ruling Friday in a case between Eric Feit and Burlington Northern Santa Fe Railway, finding that if a person's weight is outside the normal range and affects one or more body systems, it may constitute a physical or mental impairment — even if it's not a symptom of some underlying disease or health condition.

The case began in 2009, when Feit filed a complaint with the Montana Department of Labor contending BNSF withdrew a conditional offer to hire him as a conductor trainee because of the "significant health and safety risks associated with extreme obesity," the Helena Independent Record reported (http://bit.ly/LELlSm).

According to court documents, the company told Feit in 2008 that the position he had applied for was "safety sensitive." The company said Feit wouldn't be considered unless he lost 10 percent of his body weight or successfully completed additional physical examinations at his own expense, and even if he did he wouldn't be guaranteed a job.

Feit completed all the physical tests requested by BNSF except for a sleep test, which cost $1,800 and which he said he couldn't afford, court records said. Then he set out to lose 10 percent of his weight, which he contends he did, though the company says he didn't document the weight loss. The court documents don't appear to reveal how much Feit weighed.

A hearing officer with the department agreed with Feit the following year, finding that BNSF refused to hire him because it regarded him as disabled, and awarded Feit damages. BNSF appealed to the Montana Human Rights Commission, which upheld the Department of Labor's finding, and then the railway took the matter to federal court.

U.S. District Judge Donald Molloy asked the Montana Supreme Court to clarify the state law.

Three Montana Supreme Court justices dissented with the majority decision: Justices Brian Morris, Mike McGrath and James Rice.

Morris and McGrath said interpretive guidance from the federal Equal Employment Opportunity Commission requires a plaintiff to prove that they have an underlying physiological condition or disorder if they want to claim they were discriminated against because of obesity. And Rice said recent changes to the federal Americans with Disabilities Act shouldn't be considered when applying Montana's law to Feit's claim, because the changes were made after the dispute between Feit and BNSF. Federal cases decided under earlier versions of the ADA held that obesity isn't important unless tied to a physiological disorder, he noted.

Justices Beth Baker, James Nelson, Mike Wheat and Patricia O'Brien Cotter joined in the majority decision.

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