Just a few months earlier, Michigan was the only state to have appearance as a protected characteristic. Add to this Montana, where the state supreme court ruled that obesity without an underlying physiological condition is covered by the Montana Human Rights Act in BNSF Railway Co. v. Feit, No. OP 11–0463, MT 7/6/2012. The action originated as a disability discrimination complaint in which Feit was upheld by the Montana Department of Labor and Industry. BNSF is incorporated in Delaware and sought review in federal, rather than state, court. The U.S. District Court for Montana asked the state supreme court for a determination of obesity under state law which, relying on EEOC interpretive guidance, found that weight outside normal range constituted an impairment. The ruling did not extend to a determination of whether Feit’s situation constituted a disability. The case is getting attention because of EEOC’s guidance playing a role, which might be taken up by other courts.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.