Page(s)

Cases

Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997).......................... 7

Auer v. Robbins, 519 U.S. 452 (1997)................................................ 11–13

Bassiri v. Xerox Corp., 463 F.3d 927 (9th Cir. 2006).............................. 13

Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006)................................ 12

BNSF Railway Co. v. Feit, 281 P.3d 225 (Mont. 2012)....................... 5–7

Christensen v. Harris County, 529 U.S. 576 (2000)............................... 11

Decker v. Northwest Environmental Defense Center,
133 S. Ct. 1326 (2013)........................................................................... 14

EEOC v. Resources for Human Development, Inc.,
827 F. Supp. 2d 688 (E.D. La. 2011)................................................. 6–7

EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006)........ 4

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008)..................... 11

Independent Training and Apprenticeship Program v. California Department of Industrial Relations,
730 F.3d 1024 (9th Cir. 2013).............................................................. 13

Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016)................ 7

Penncro Associates, Inc. v. Sprint Spectrum, L.P.,
499 F.3d 1151 (10th Cir. 2007).............................................................. 9

Russell v. Law Enforcement Assistance Administration,
637 F.2d 354 (5th Cir. 1981)................................................................. 10

Siskiyou Regional Education Project v. U.S. Forest Service,
565 F.3d 545 (9th Cir. 2009)................................................................. 12

Taracorp, Inc. v. NL Industries, Inc., 73 F.3d 738 (7th Cir. 1996)....... 10

Vietnam Veterans of America v. Central Intelligence Agency,
811 F.3d 1068 (9th Cir. 2016)........................................................ 11–12

Statutes and Rules

Americans with Disabilities Act, 42 U.S.C. §§ 12101–17............. passim

ADA Amendments Act of 2008................................................................... 8

Federal Rule of Appellate Procedure 29.................................................... 1

29 C.F.R. § 1630.1(a).................................................................................... 1

Other Authorities

29 C.F.R. Part 1630 App., Introduction........................................................... 1

29 C.F.R. Part 1630 App., § 1630.2(h).................................................... 4, 6, 8

EEOC, 2 Compliance Manual, § 902................................................................ 8

Brief for EEOC as appellant, EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006) (No. 05-3218), 2005 WL 6299790................................................... 13

Brief for EEOC as amicus, Morriss v. BNSF Railway Co., 817 F.3d 1104 (8th Cir. 2016) (No. 14-3858), 2015 WL 1407183............................................................. 13

Memorandum for EEOC opposing summary judgment, EEOC v. Resources for Human Development, No. 10-3322 (E.D. La. filed Sept. 6, 2011), ECF No. 26..... 13

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce the Americans with Disabilities Act (“ADA”) as amended, 42 U.S.C. §§ 12101–17. Pursuant to that mandate, the Commission issued regulations implementing the act and an interpretive guidance designed to help persons with disabilities understand their rights and to promote compliance with the law and the regulations by employers and other regulated entities. See 29 C.F.R. § 1630.1(a); 29 C.F.R. Part 1630 App., Introduction, penultimate paragraph.

The district court in this case ruled that obesity cannot be an impairment unless it is caused by a physiological disorder. The district court’s principal support for that ruling was its interpretation of a sentence in the EEOC’s interpretive guidance. The Commission believes that the district court misinterpreted that sentence. Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers the Court its views.

Statement of the Issue [1]

Did the district court misinterpret the interpretive guidance passage it relied on to support its holding?

Statement of the Case

After five years in the Marines, where he worked as an avionics technician, Taylor applied to work for BNSF Railway Company (“BNSF”)[2] as an electronic technician. BNSF offered him the job on the condition that he pass their medical screening. The company determined during a physical exam that Taylor was 5' 6" and weighed 256 pounds, and that he was therefore “extreme[ly]” obese (i.e., he had a body-mass index [“BMI”] of 40 or more). BNSF told Taylor it would not be able to determine whether he was medically qualified until he submitted the results of several medical tests, including a sleep study. Taylor could not afford the tests, so he was unable to obtain or provide test results. He was not hired.

Taylor sued alleging, inter alia, that BNSF refused to hire him because it regarded him as disabled. Taylor made his claims under the Washington Law Against Discrimination, or WLAD. No state court had addressed whether obesity is a disability under the WLAD, and Washington courts rely on the comparable federal laws when interpreting the WLAD. The district court therefore relied on ADA case law, regulations, and guidance in reaching its decision.

The district court held that under the ADA (and therefore under the WLAD) obesity—even morbid obesity—cannot be an impairment unless it was caused by a physiological disorder. That holding was based on the district court’s interpretation of a sentence in the EEOC’s interpretive guidance. See slip op. at 16–17 (relying on what court viewed as “a more sensible interpretation of the EEOC’s guidance”).

Argument

The District Court Misinterpreted the Interpretive

Guidance Passage On Which It Relied.

A. Pursuant to that passage, because morbid obesity is well outside the “‘normal’ range” of weight, it is an impairment regardless of whether it was caused by a physiological disorder.

Section 1630.2(h) of the Commission’s interpretive guidance includes the following sentence:

The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder.

29 C.F.R. Part 1630 App., § 1630.2(h) (emphasis added). The district court interpreted this sentence to mean that morbid obesity is not an impairment unless it is caused by a physiological disorder. Slip op. at 14 (“‘[T]o constitute an ADA impairment, a person’s obesity, even morbid obesity, must be the result of a physiological condition.’”) (quoting EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 443 (6th Cir. 2006)); id. at 17 (“‘The guidance plainly provides that a person’s weight qualifies as an impairment only if it falls outside the normal range AND occurs as the result of a physiological disorder. Both requirements must be satisfied before an impairment can be found.’”) (quoting BNSF Ry. Co. v. Feit, 281 P.3d 225, 232 (Mont. 2012) (Morris, J., dissenting)).

The district court misinterpreted the relevant sentence. The grammar of the sentence itself shows that the sentence means that extreme or morbid obesity, because it is well outside the “‘normal’ range” of weight, is an impairment regardless of whether it was caused by a physiological disorder.

The sentence does not say, as the district court read it, that a person’s weight is an impairment only if it falls outside the normal range and was caused by a physiological disorder. In fact, the sentence does not say when a person’s weight is an impairment at all, except by implication. It defines “impairment” by exclusion: it describes when a person’s weight is not an impairment.

The sentence says: “The definition of the term ‘impairment’ does not include physical characteristics such as . . . weight . . . that are within ‘normal’ range and are not the result of a physiological disorder.” That is grammatically equivalent to: “Weight that is within ‘normal’ range and is not the result of a physiological disorder is not an impairment.”

The two predicates in the sentence—“within ‘normal’ range” and “not the result of a physiological disorder”—are joined by “and.” That does not mean, however, that both predicates have to be false for a person’s weight to be included within the definition of an impairment. Rather, it means that both predicates have to be true for a person’s weight to be excluded from being an impairment. A person’s weight is thus not an impairment if two things are true: it is within normal range, and it is not the result of a physiological disorder. But if either of those statements is false, the person’s weight can be an impairment. See Feit, 281 P.3d at 229 (“By using the conjunctive ‘and,’ the regulation excludes weight from the definition of impairment only if it is both ‘within “normal” range’ and ‘not the result of a physiological disorder.’”).

Like the court in Feit, the district court in EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La. 2011), interpreted the sentence correctly:

A careful reading of the EEOC guidelines and the ADA reveals that . . . a physiological cause is only required when a charging party’s weight is within the normal range. 29 C.F.R. [Part 1630 App.,] § 1630.2(h). However, if a charging party’s weight is outside the normal range—that is, if the charging party is severely obese—there is no explicit requirement that [the] obesity be based on a physiological impairment.

Id. at 694. See also Feit, 281 P.3d at 229 (“The Interpretive Guidance thus suggests that ‘impairment’ requires a ‘physiological disorder’ only if a person’s weight is ‘within “normal” range.’”); but see Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1108 (8th Cir. 2016) (“[W]e conclude that a more natural reading of the interpretive guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found.”); Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997) (reading the sentence to mean that “physical characteristics that are ‘not the result of a physiological disorder’ are not considered ‘impairments’”).

Consistent with the language of the “physical characteristics” sentence in the guidance, the Commission has long taken the position that severe or morbid obesity is an impairment under the ADA even when there is no evidence that it was caused by a physiological disorder. The Commission adopted a Compliance Manual section in 1995 that stated: “Being overweight, in and of itself, generally is not an impairment. . . . On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm . . . , is clearly an impairment.” EEOC, 2 Compliance Manual, § 902.2(c)(5)(ii) (BNA) at EEOM 902:6–7 (1995) (superseded in part by ADA Amendments Act of 2008) (emphasis added).

B. The context supports this interpretation of the passage.

Consideration of the context in which the “physical characteristics” sentence is found reinforces the Commission’s interpretation of the sentence. The paragraph containing the sentence and the following paragraph read in part as follows:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within “normal” range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. . . .

The definition of an impairment also does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record are not impairments. Advanced age, in and of itself, is also not an impairment.

29 C.F.R. Part 1630 App., § 1630.2(h).

Like the sentence at issue here, these two paragraphs define “impairment” by exclusion, by listing examples of characteristics, conditions, or traits that are not impairments. One sentence in the second paragraph is grammatically quite similar to the “physical characteristics” sentence: “The definition of an impairment also does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” Comparing these two sentences shows that the Commission treated personality traits differently from how it treated physical characteristics like weight. One test suffices to exclude personality traits from being impairments: they are not impairments if they did not result from disorders. But physical characteristics like weight have to satisfy two tests before they are excluded from being impairments: they have to be within normal range as well as having not resulted from a physiological disorder.

The Commission’s use of different language in otherwise parallel provisions shows different meaning, as the settled rule governing interpretation of various written documents states. See, e.g., Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156-57 (10th Cir. 2007) (“When a contract uses different language in proximate and similar provisions, we commonly understand the provisions to illuminate one another and assume that the parties’ use of different language was intended to convey different meanings.”); Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996) (when interpreting contracts, as when interpreting statutes, “we assume that the same words . . . have the same meaning . . . and that the choice of substantially different words to address analogous issues signifies a different approach”); Russell v. Law Enf’t Assistance Admin., 637 F.2d 354, 356 (5th Cir. 1981) (stating “well settled rule of statutory construction that . . . different language . . . used in the same connection in different parts of a statute [is] presumed [to have] different meaning and effect”).

C. The EEOC believes the “physical characteristics” sentence is clear. Even if the sentence is ambiguous, the district court still erred because it should have deferred to the EEOC’s interpretation of its own guidance.

The district court based its holding—that the plaintiffs could not survive summary judgment on their obesity-based ADA claim—on its interpretation of the “physical characteristics” sentence in the EEOC’s interpretive guidance. See slip op. at 13–14, 16–17. The court acknowledged the plaintiffs’ argument that the sentence should be interpreted differently, but rejected that argument based on the court’s own assessment of the “more sensible interpretation” of the sentence. Slip op. at 16–17.

As set forth supra, the Commission believes that the “physical characteristics” sentence is clear, based on its grammar and context. If, however, this Court rules that the “physical characteristics” sentence is ambiguous—i.e., susceptible to either the EEOC’s interpretation or the district court’s—the Court should defer to the Commission’s interpretation of the sentence.

Under Auer v. Robbins, 519 U.S. 452 (1997), and Christensen v. Harris County, 529 U.S. 576 (2000), courts should defer to an administrative agency’s interpretation of ambiguous provisions in its own regulations. Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1077–78 (9th Cir. 2016); see also Fed. Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (deferring to the EEOC’s interpretation of its regulation governing the contents of a charge of discrimination).

The sentence at issue here is in an interpretive guidance, not a regulation, but this Court has applied the Auer level of deference to agency interpretations of documents that are not regulations. See Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 554-55 (9th Cir. 2009) (deferring to the Forest Service’s interpretation of a forest plan it had issued). Moreover, the logic supporting the Auer deference rule applies equally to an agency’s interpretations of its own guidance documents. See Belt v. EmCare, Inc., 444 F.3d 403, 417 (5th Cir. 2006) (Auer deference rule grounded in part on agency’s “comparative expertise” in interpreting ambiguous provisions it adopted).

Deference is appropriate here because the interpretation that the EEOC is advancing reflects the agency’s “fair and considered judgment,” not a “convenient litigating position.” Vietnam Veterans, 811 F.3d at 1078. The Commission adopted its interpretation initially in 1995, and it was in a Compliance Manual section adopted by a majority of the Commissioners, not a mere litigating position. Moreover, the agency has advanced this interpretation at least three times in the interim.[3] And because the Commission has interpreted the sentence consistently since 1995, regulated entities cannot claim “unfair surprise.” Compare Indep. Training & Apprenticeship Program v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1034–35 (9th Cir. 2013).

Thus even if the sentence at issue is ambiguous, the EEOC’s interpretation reflects its “fair and considered judgment,” and that interpretation “is controlling under Auer unless it is ‘plainly erroneous or inconsistent with the [guidance].’” Bassiri v. Xerox Corp., 463 F.3d 927, 931 (9th Cir. 2006) (quoting Auer, 519 U.S. at 461) (bracketed word changed). Under that standard, this Court defers to the agency’s interpretation “unless an alternative reading is compelled by the [guidance’s] plain language or by other indications of the [agency’s] intent at the time of the [guidance’s] promulgation.” Id. (word in first and third brackets changed). The Commission’s interpretation of its guidance “need not be the only possible reading . . . —or even the best one—to prevail.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013).

Conclusion

The Commission therefore respectfully urges this Court to reverse the order dismissing this action because it is based on an erroneous interpretation of the agency’s interpretive guidance.

[1] The Commission takes no position on the other issues in this case.

[2] Taylor sued both the railroad and the holding company, collectively referred to here as “BNSF.”

[3] See Brief for EEOC as amicus at 17–18, Morriss v. BNSF Rw. Co., 817 F.3d 1104 (8th Cir. 2016) (No. 14-3858), 2015 WL 1407183, at *16–17; Memorandum for EEOC opposing summary judgment at 10–17, EEOC v. Res. for Human Dev., No. 10-3322 (E.D. La. filed Sept. 6, 2011), ECF No. 26; Brief for EEOC as appellant at 33–34, EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006) (No. 05-3218), 2005 WL 6299790, Argument C.