In its unilateral decision to adopt the federal definition of "disabled," the Washington Supreme Court in McClarty v. Totem Electric1 upended almost two decades of jurisprudence and potentially leaves many disabled Washington citizens without protection from discrimination.
The majority seems to suggest that the decision is merely "clarifying" the law or harmonizing essentially compatible aspects of federal and state law, and in so doing the court is somehow helping disabled plaintiffs.2 Nothing could be further from the truth, as pointed out in the amicus briefs filed by the Washington State Human Rights Commission and jointly by the Washing-ton Employment Lawyers Association and the Washington State Labor Council in support of the recently filed motion to reconsider.
The definitions of a disability under Washington's Law Against Discrimination (WLAD)3 and under the federal Americans with Disabilities Act (ADA)4 are frequently at odds with each other. Washington's definition was broad and meant to be inclusive.5 The federal definition is consciously exclusive.6
The tension between the definitions is apparent in evaluating claims involving temporary disabilities. Ever since the Washington Supreme Court's ruling in Phillips v. Seattle,7 it had been clear that temporary disabilities were protected under WLAD. However, the U.S. Supreme Court has made it equally clear that under the ADA a disability's "impact must ... be permanent or long term."8 Thus, federal courts have excluded individuals with such serious and "debilitating conditions as cerebral hemorrhaging, kidney obstructions, depression, bone spurs and ligament damage, and serious shoulder and knee injuries" from protection under the ADA.9
The ADA definition, as it has been applied throughout the country, excludes significant numbers of individuals that ordinary common sense would describe as "disabled." This includes individuals with severe arthritis; carpal tunnel syndrome; chronic back pain; back and leg injuries; shoulder, arm and hand injuries; diabetes; hemophilia; hypertension; heart conditions, including coronary artery disease; strokes; cancer; colitis; morbid obesity; vision impairments; hand tremors; asthma; pneumonia; bipolar disorder; post-traumatic stress disorder; attention deficit hyperactivity disorder; and dyslexia and other learning disabilities.10
Mental or physical impairments which can be corrected or assisted by medication or other measures are another problematic issue under the ADA definition. In Sutton v. United Airlines, Inc., the U.S. Supreme Court found such impairments not to be "disabilities" under the ADA.11 As noted in Justice Stevens' dissent in Sutton, this restriction to the definition of disabled can result in a situation where an individual with a prosthetic limb who nevertheless manages to successfully perform his or her daily life activities is not protected under the ADA, even if it can be shown that an employer refuses to hire that person due to their prosthetic limb.12
This "new" definition also creates a significant change in the paradigm for evaluating a disability discrimination claim. The focus under the WLAD has been on an employee's suitability for a particular job, whereas the ADA definition focuses on whether or not the person's disability limits their "major life activities." "Whether an employee's carpal tunnel syndrome will qualify as a 'disability' will now depend more on his or her ability to bathe or brush his or her own teeth than anything at the worksite."13
This decision caught everyone by surprise: the Human Rights Commission,14 employee and disability advocacy groups, even employer advocates.15 If the court does not grant the petition to reconsider, perhaps the Legislature will step in. As the Human Rights Commission noted in its brief, the Legislature specifically refused to adopt the federal ADA definition of disability in 1993.16
If neither body acts, then, as noted by Jesse Wing, chair of the Washington Employment Lawyers Association, the result is likely to be that thousands of qualified, capable members of our communities will be denied the ability to fully participate in our economic community, based on fear and stereotypes.
D. Jill Pugh (formerly Hawkins) is a sole practitioner in Seattle's Capitol Hill neighborhood. Her practice focuses on employment law and she is the 2006-2007 chair for WSTLA's Employment Law Section. She can be reached at jill@employmentlawwa.com. With many thanks to Jesse Wing, of MacDonald Hoague & Bayless, for taking time to discuss the impacts of this decision and sharing the amicus briefs in support of the petition for reconsideration.
1 2006 Wash. LEXIS 504.
2 "We have concluded that the use of the term 'disability' has evolved to the point that its definition in the federal statute and in Washington's should be the same." McClarty, pages *9-10.
3 WAC 162-22-020 provides:
- "Disability" is short for the statutory term "the presence of any sensory, mental, or physical disability," except when it appears as part of the full term.
- "The presence of a sensory, mental, or physical disability" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:
- Is medically cognizable or diagnosable;
- Exists as a record or history;
- Is perceived to exist whether or not it exists in fact.
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 denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.
4 42 U.S.C. ¤ 12102(2) provides:
(2) Disability
The term "disability" means, with respect to an individual-
- a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- a record of such an impairment; or
- being regarded as having such an impairment.
5 "The state rule provides broader protection and opportunity to be heard" and carries out "the Legislature's intent to provide broader protection to state citizens in the area of disability protections." Amicus Curiae Brief of the Washington State Human Rights Commission in Support of Respondent's Motion for Reconsideration, at 6 (HRC Brief).
6 "[T]hese terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.É" Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 151 L.Ed.2d 615 (2002) (emphasis added).
7 111 Wn.2d 903, 766 P.2d 1099 (1989).
8 Toyota Motor Mfg., 534 U.S. at 198; Amicus Curiae Brief of Washington Employment Lawyers Association and Washington State Labor Council in Support of Motion to Reconsider, at 4 (WELA/WA Labor Council Brief).
9 WELA/WA Labor Council Brief at 4Ð5, citations omitted.
10 Id. at 6-7, footnotes 3, 4, 5, citations omitted.
11 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).
12 Id., 527 U.S. at 497Ð98.
13 WELA/WA Labor Council Brief at 9; "When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job." Toyota Motor Mfg., 534 U.S. at 201Ð02.
14 "Had the Commission been aware that the validity of WAC 162-22-020 was at stake, it would have provided a thorough analysis of that issue to this Court." HRC Brief at 3.
15 In law firm Lane Powell's "The Employer Adviser Hot Sheet" discussing McClarty, the article states that "this ruling is a striking departure" from the definition in the WAC. See http://www.lanepowell.com/pdf/pubs/eah_2006_0002.pdf; Preston Gates and Ellis has this to say on its Web site: "On July 6, 2006, the Washington Supreme Court issued a somewhat unexpected decision that narrows the prior expansive definition of disability under the Washington Law Against Discrimination (WLAD)." See http://www.prestongates.com/publications/pub Detail.asp?id=724.
16 HRC Brief at 7.
