good morning your honors may it please the court shall be level if master's law group on behalf of casey taylor i'd like to reserve four minutes for rebuttal and also advise the court that i'll be yielding three minutes of my time to mr ramsay who will speak on behalf of the  and with that let me jump right into the heart of the matter which is obesity morbid obesity is an impairment under the washington law gets discrimination and to start with i'd like to remind the court of a statement often used by washington courts addressing th what the district court did here which is to say that it is seldom appropriate to grant summary judgment to an employer in a washington logons discrimination case and that is because employers employers in these cases already face exceptionally difficult burden  fight is not supposed to be fought and what a disability is the find a supposed to be fought in court on rather discrimination has occurred and that is exceptionally important to this court's analysis of what washington year later when it amended the a b a for this very same reason and the reason is that plaintiffs as i said were being kept out of court because they were being forced to debate whether a disability exists on think you're talking a little fast for me so i would suggest slow down if you if you need a little more time we'll and it for either party ok thank you so the point is that washington added the definition of impairment that is that issue today for the purpose of capturing plaintiffs who are being locked out of federal court and this is expressed in the legislative history this specific concern was that federal courts were being far too exacting on what a condition is and washington raised this both in the house and the senate in adopting the definitions of impairment and disability in the washington law against discrimination the purpose is to provide independent relief and to provide relief that captures conditions that were not being captured by federal courts under the  and this is relevant and of course seen in washington case law as well you know the reason we asked this court to certify to the washington supreme court is because there isn't a washington case that has addressed this precise question of rather morbid obesity is a disability but the cases that have addressed conditions under the washington law against discrimination treat the term very broadly the first case of course is clip c which is completely unconcerned with the cause of the condition at issue in that case and in fact the court states that the plaintive did not even outline or state the disability that he was alleging any perceived as a disability claim rather it was enough to move forward that upon learning that the plaintiff used methadone the employer stated that he needed to get clean or could relapse that alone was sufficient to allow the plaintiff to proceed to trial under the washington law against discrimination clipse he is entirely unconcerned with the cause of a condition rather federal eighty eight precedents but is there's just something different here because of the word impairment or why is it that we need a state supreme court decision rather than just look at the federal presidents under age there's a couple of reasons and one is this much as our court certainly looks to federal decisions for guidance it's not binding and this is a very important decision for washington and it would be very beneficial for washington to have a binding decision now the reason that washington would depart from the federal case law here is because of the very reasons that the way allowed was amended in two thousand and seven to add these definitions it was a rejection of the way federal courts were treating the definition of disability much the way congress rejected that same approach in two thousand and eight now the federal courts at least in the eighth circuit have nonetheless completely and run and congress's authority in two thousand and eight by continuing to apply the exact same standard for a constrained disability that they applied before that isn't and that when congress says to the courts there's nothing wrong with the definition of impairment what's wrong is the way that you are using the definition of impairment to keep people out of court it is an end run to say nonetheless we can continue doing exactly the same thing and i believe that washington project would reject that for the same reason it amended the way lad and is seen as the legislative history amended it because it did project exactly that approach now i think here however the district court has gone even a step further and it doesn't just require a correlation between physiological and condition it requires a causal connection and excerpts of the record nineteen and throughout its decision the court says that what is required is that my client proved that his physiology caused the condition of morbid obesity that is an impossible standard and i think an analogy demonstrates how dangerous that standard is and i'd ask the court to indulge me for a moment and imagine what would happen if a whale lead plaintiff was being kept out of court on summary judgment when her claim was that her perceived as a disability with cancer and she was told that she had to pursue prove not only that her condition was caused physiologically but that her employer perceived the physiological cause of her condition which is to say that her employer perceived something like a genetic mutation such as braco one not environmental causes that plaintiff would not be held to that standard in that is exactly the standard that the district court held my client to that he not only had to show some sort of connection but a cause and this is a fault based standard that finds no no basis in the way allowed whatsoever and goes far beyond any plain language reading of the statute further i think the washington statute itself does suggest that condition is a standalone provision that is because there is a comment that separates physiological disorder and condition now the only plain language reading of that statute is condition as a standalone term and that of course supplements the analysis that reading condition as a broad standalone term is consistent with legislative intent and consistent with common law in washington now i've explained i think the dangerousness of the court's decision requiring a causal connection i would say however that if the court remains convinced that there has to be a physiological connection or component that a condition isn't a standalone term that obesity quite plainly has a physiological component and the easiest way to see that connection is in burlington northern answer to clip c at page twenty five of their brief burlington northern faced with a case in washington that plainly as unconcerned about the cause of the condition set as the underlying condition is addiction and addiction is physiological they are willing to make the assumption addiction is physiological well the same assumption would have to be made for morbid obesity physiological is simply something that is a product of our biological structure related to our biological court would do right right and so we know that they look at federal law and interpret and hear there's been a lot of debate about what the a b a means in this context in the e interpretation doesn't help wouldn't that assist you in this regard well certainly i think if if the causation falls out and the analysis is that there's got to be some sort of physiological connection  and i think that's probably true under the a d l that i would fight against that in washington where you're absolutely fine with a standard that says we think there's got to be a connection so long as that is plain here and it's plain for the same reason it was plain to be n good morning paula i'm sure as for the e e o c as me just curiosity and i want to talk about if i have time to sentences first the sentence about physical characteristics from our interpretive guides the railroad suggests that it may not be proper to look at sentence structure and grammar if it's not in a statute that's mind boggling to me i think whenever you're reading in english sentence you should pay attention to the sentence structure and the grammar so the sentence says of physical characteristic it the category of physical characteristics does not include i'm sorry the category of impairment does not include physical characteristics that are within normal limits and are not caused by a fifty physiological disorder  that sentence does not tell us what an impairment is when a physical characteristic is an impairment it just tells us in certain circumstances physical characteristics physical characteristics are not impairments and what of those circumstances it's physical characteristics that are within normal normal limits and are not the cause not caused by a physiological disorder those physically or are not impairments that's all the sentence says the sentence does not say an impairment has to be caused by a physiological disorder i'm sorry that a characteristic has to be caused by physiological disorder in order to be an impairment it if you just let me take a simple example that grammar a where we don't care care so much about the result if someone's writing a book about sports for an alien and trying to talk about what is a ball and they say the category of bird all does not include things that are made of rubber but are not spherical in shape ok that doesn't tell us what a ball is all tells us is if you have something that's made out of rubber and it's not spiritual it's not a ball does if you have a physical characteristic that is within normal range and it's not caused by a physiological disorder then that's not an impairment you have a sentence i want to talk about briefly is the one in our compliance manual the number of the courts talking about obesity have quoted in relied on that that says if that's if your obesity which has been defined as body weight more than one hundred percent over the norm is clearly an impairment now a number of courts have read that sentence to mean that obesity is an impairment only when it is one hundred percent over the norm that's not what the sentence means that's not how we use the word clearly for example consider the sentence persons with i q is over nine hundred ninety are clearly geniuses that doesn't mean that a person with an i q below one ninety might also be a genius it just means there's a wide range and we're not sure where to draw the line but we do know that if that anyone above this this part of the line is a genius and we're not interpreted that the first sentence like talked about incorrectly as as if ever have as have a number of other courts they said that sentence means that a physical characteristic is not like weight is not an impairment unless it was caused by physiological disorder that's that's not what the sentence says and that's what the district court here said too and and and i would argue if you understand that sense properly you should vacat that part of the district court order that he just misunderstood what that sentence means how much deference do we owe to your interpretation well i'm not sure yo and i'm not asking for deference i'm just trying to discuss the grammar of the sentence and what the sentence means and you may agree with me may not we're not that there didn't agree with you that's right you have no number of cour disagreed with me but but i've tried to suggest why i think that sentence should not be interpreted that way of course we're not bound by the circuit right we do read what our systems are right and you and you're working on on a state law claim here but to the extent that you rely on the a day materials i wanted to talk about what those sentences mean thank you very much it's very helpful think  obesity issue and if there's time i'll dress the knee in the back issue at the end of the argument on the obesity question there are two overarching questions that the court must answer and the first one is whether you agree with the district court and w f that in the two thousand and seven amendments to the washington statute the washington legislature incorporated federal law as to the meaning of impairment now i emphasize as to the meaning of impairment because we don't disagree it's very obvious that the washington legislature intended to override what the washington supreme court had done with respect to incorporating federal law as to substantial limitation and you'll recall that under the the old a d f a before the idea of amendments you had to show a an impairment that was substantially limiting or for regarded as regarded as substantially limiting so you had impairment and substantially limiting and the washington supreme court had incorporated when faced with what at the time was very open ended in vague language in the washington statute this whole substantial limitation aspect of federal law and the legislature clearly rejected that there's no doubt and frankly did the same thing that congress ended up doing a year later when it adopted the idea amendments act what the legislature also did though was for the very first time incorporates introduced to the statute the term impairment that hadn't been there before and when they introduced that term they made the statute to line up with the a d f a except for the substantial limitation component so you have to have an actual impairment a record of an impairment or a regarded as impairment in this case is about the latter of those and most importantly when they introduce that that  they adopted a whole cell verb a well almost verbatim the existing e o c regulation that was just talked about into the washington statute and that doesn't happen by accident when a legislature adopts a federal regulation nearly verbatim that's not an accident the legislature necessarily knew what it was doing and necessarily or at least presumptively was incorporating the body of federal law that came along with that with that definition of impairment so it's a fair and reasonable eery guess for this court to make that the washington legislature knew what it was doing a incorporated federal law as to the impairment term which is not to say anything about its desire to override the supreme court's decision on the substantial limitation point which was what had resulted in a large number of cases being thrown out under the a d f a and what the legislature was concerned about happening under the washington statute so the court is the first point correctly look to federal law moving on to federal law which is the second issue will be to look correct and adopt that reasoning so we're selling shouldn't we certify this question to the washington supreme court they're pretty good but in certification for a number of reasons of course you know we've gone into a lot of detail about that in the motion purposes that the washington legislature wants to accomplish or maybe more generous than the well general or here on diversity jurisdiction obviously federal courts here diversity cases and you don't certify every after the change and no i don't believe so but for the reasons i was talking about earlier i think it is clear the washington legislature adopted the meaning of impairment now another point we make you would agree with you that any decision we make here is not binding  the washington courts that's right that's right the only binding on federal district courts that's right and within the circuit of course that the u s of brought this case to federal court we have a right to be in federal court we have a right to to your determination and yes there is a certification procedure but it also could have been invoked much earlier in the case and we've cited some cases in our in our responses of the motion of the district court sure in not in not all states can the district court certify but in washington they can that's right and we cited cases from your name he the district judge here for some reason decided not to do what i did because he was never asked and we've cited cases from your court saying that if the party has the opportunity to ask and never asks this court should look very unfavorably upon being asked for the first time on appeal because it essentially allows them with interest in the case when the issue was certified to the montana supreme court they took a different position  eighth circuit ended up slater saying that the montana supreme court got it wrong as a matter of federal law now even the position the montana supreme court adopted which you saw ended up coming back to this court and being decided to be in as a favor  because of the meaning of the compliance manual that he sees counsel was talking about you know that ended up being decided to be honest if favor because the standard in the compliance manual is such a high standard it's a very very limited exception he has recognized but essentially the montana supreme court just made a mistake and thought that the compliance manual had been amended after the idea amendments act and that just hadn't been the case those of just an incorrect assumption on its part and i would assume that the washington court probably wouldn't make that same mistake if that were pointed out to him ahead of time so getting back to the the federal issue here of course we're asking that you follow morris but it's not just more it's it's the the circuit the sixth circuit and the second circuit along with numerous i'd say maybe even scores of district court decisions that have taken the very same approach that the that those circuits have taken both before and leads to the words a symptom of an underlying disorder and the reason is that weight is a characteristic and with him we're talking about obesity we're talking about weight at a certain level weight is a characteristic just like height just like hair color with weight exceeds a certain level there are certain labels that are put on it depending on what the level is oh there's obesity and there's different levels of obesity and they've changed over the years but because weight is a characteristic that's why you have to show an underlying physiological disorder because it is clear that characteristics are not impairments and that's why the causation issue that opposing counsel is talked about talking about with respect to cancer is not an issue cancer is obviously an impairment you don't have to show what caused the cancer you don't say so you have cancer because you smoked therefore you're not protected because cancer is an impairment what we're talking about now is determining whether something is an impairment and because the guidance is clear that weight is not an impair that's why you have to show the underlying disorder that has led to the the excessive wait that's at issue now think they didn't just make up this position here in their brief this is the position that they've articulated before and it's been consistently rejected before as well the eighth circuit rejected it but before that the sixth circuit rejected it and in both of those cases applies to an interpretation of a regulation and we're arguing about the interpretation of the guidance and we are deferring to the c s interpretation we're we're deferring to their interpretation that's in the interpretive guidance we're just disagreeing regulation that's followed by guidance that's followed by an amethyst brief it leaves it to open for agency manipulation about the meaning and the other problem is when you've got this situation where they keep making the same argument in courts keep rejecting it and on top of that the policy making unit of e e o c in two thousand and eleven completely rewrote the regulations because of the two thousand and eight amendments act and yet they reissued the very same wording on the interpretive guidance as to impairment and they knew from the walk in scase and all of the other cases but specifically watkins because he if he was a party that this was how federal courts were interpret that guidance so surely you would think that if the policy making unity of c really thought there was an issue there they would have either change the language or if they felt like they don't need to change the language because the courts are just wrong at the interpret it they would have at least added a since that says that and not only did they not do that they added language saying that speaks pressley that congress intended no change in the meaning of impairment so they doubled down on the very meaning that well that courts have adopted and getting back to the washington legislature would washington incorporated that impairment definition they incorporated that meeting along with it because by the time two thousand and seven paper around that meaning was pretty well established and the  and that's are it's another reason not to certify it because you don't certify when the answer is pretty clear in here the answer is pretty clear now let me just talk briefly about the facts i think that this really is a legal dispute there really wasn't much of a fight proposed to the as to the facts but there was no evidence that that mr taylor was perceived to have any underlying condition that resulted in her some is because whether or not that the offer was withdrawn or whether he just kind of you know there was there was some some different statements about whether it was technically withdrawn or not but that's that's not a material issue of what we're talking about here because the effect was he didn't get a job information was requested about that condition that does not convey a perception of a currently existing impairment and on the knee in the back issue you have the same the same problem that was really almost a throw away i think was what the judge had  endor stand in the only way he could have qualified for this job was to meet the medical there was a letter that was sent to him saying you could lose ten percent of your weight  want to see the result that's right that's right the problem the issue is not with the n s a of hiring people who happen to have a condition that is one of those that's associated with higher  issue is hiring someone without knowing that the person has that condition because those conditions can strike with you can have an event of sudden incapacitation when you've got a person out there walking around and working in a very unforgiving response i think what the what the statement was was that he had to lose the weight and didn't put a time limit on it but then he had to remain off for six my first six months not that he only had th judge fisher to go immediately to your question what the record reflects is that the job has gone so it would not have mattered if my client took the weight off and kept it off for a period of six months because the job was caught and b n s f made that very clear because he couldn't provide the medical tests at his own expense that they demanded of him and i only have a couple of minutes but to go straight to the question of would washington have adopted all of the federal cases the answer to that question is no and the answer that question is no for two reasons one washington legislative history again makes abundantly clear that washington was very concerned that federal courts using the definitions of impairment and disability under the eighty eight were not capturing a number of disabled individuals to whom washington wanted to extend protection under the washington law against discrimination it is absolutely absurd in light of that legislative history to assume that washington would have adopted the very same federal cases that it was projecting in its discussion of the eighty eight furthermore and the reason it has not offered this court a citation here today or in its brief aim to support the assertion that the legislature in failing to express we reject foreign non binding authority means that it was adopting that authority is because no such citation exists the legislature is not bound to expression reject every single foreign case that does not bind washington to show that it disagrees with those cases its disagreement with those cases is made abundantly clear in the legislative history of washington i'd also like to turn to the idea that weight is not a condition rather a physical characteristic we're not just talking about weight we're talking about morbid obesity be n s f calls this condition extreme and they refer to it in the record as a health condition their own treatment of persons with morbid obesity proves that they perceive morbid obesity to affect the endurance system because they believe that morbidly obese persons are highly likely to have diabetes it proves that they perceive morbid obesity to affect the respiratory system because they believe persons with market obesity are highly likely to have sleep apnea this is such a difficult standard for b n f have to grasp here washington is very broad in its treatment of condition but washington has said in case law already is that condition under the way nothing more than a particular mode of being morbid obesity is a particular mode of being it is not akin to hair color or eye color and washington has already made clear the broad treatment with the condition receives in our state the n s f it has made a practice of excluding morbidly obese persons from their employment and when they do it in the post conditional offer phase they cannot require those persons to pay for tests and they cannot in the event that in the