One of the most vexing issues for Washington employers has been the state’s broad definition of a “disability” for purposes of state law. This definition historically included “any medically recognized abnormality” – a standard so broad as to encompass conditions far beyond those covered under the federal Americans with Disabilities Act. In a fractured decision issued just yesterday, the Washington Supreme Court aligned the state law definition of disability with that under the ADA. The practical result of this change will be to clarify who is – and who is not – entitled to the broad rights afforded under state law.
In McClarty v. Totem Electric, the employee Kenneth McClarty was an apprentice electrician working on projects that included, among other things, using a jackhammer and digging ditches. He complained to his supervisor of pain in his hands, and asked for a break from digging work. He ultimately received documentation that he had contracted carpel tunnel syndrome. When this request was denied and he was laid off three months after his employment began, McClarty sued Totem Electric, claiming among other things disability discrimination under the Washington Law Against Discrimination (WLAD).
The Washington Supreme Court reviewed the lower court’s summary judgment dismissing McClarty’s claim that he was “disabled” under state law. The issue stemmed from a regulation issued by the Washington State Human Rights Commission, which provided a definition in WAC 162-22-020 of the word “disability” as “the presence of any sensory, mental, or physical disability.” WAC 162-22-020 similarly states, “[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question ... or [was]discriminated against.” The Washington Supreme Court had long noted that this definition is circular because it requires a factual finding that the employee was discriminated against “because of the condition in order to determine whether the condition is a [disability].” See, Doe v. Boeing Co., 846 P.2d 531 (1993). The Court had struggled also with the challenge that “WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is ‘disabled’ in the first place.” In McClarty, the Court also noted that these definitions contravened the purpose of the WLAD.
For the first time, the Washington Supreme Court directly challenged this regulation, rejecting it in favor of “the definition of disability set forth in the federal ADA.” As a result, the Court stated “a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment.” The Court did not dismiss McClarty’s claim outright, but instead remanded the case to the trial court to apply this definition to McClarty's disparate treatment disability discrimination claim.
This case has significant impact on Washington employers. First, it changes and arguably limits the definition of “disability.” Employers can now consider issues of accommodation and discrimination under the same standard as under Federal law. Second, the Court emphasized the importance of the Federal court interpretations of the ADA in determining issues under WLAD’s disability discrimination laws. As a result, the body of case law developed under the ADA can now be more closely analyzed for Washington law issues, allowing greater certainty in decision-making. Employers should still be cautioned, however, to consider and follow state laws. The WLAD still has provisions and protections that exceed the Federal standard, such as the requirement to accommodate post-termination in some situations. Similarly, other state laws (notably California) impose restrictions greater than those under the ADA.
For more information on this and other topics in Employment Law or employment law training, please contact Michael W. Droke, head of the Labor & Employment Practice Group of Dorsey & Whitney LLP’s Seattle office, at (206) 903-8800.