With the Washington Supreme Court's decision on July 6 in McClarty v. Totem Electric,1 claims of disability discrimination under the Washington Law Against Discrimination (WLAD)2 became more difficult for employees to win and easier for employers to defend. The turning point was the court's holding equating the definition of "disability" under the WLAD with its definition under the American with Disabilities Act (ADA).
How We Got Here: Pulcino v. FedEx
Most people were surprised about the court's adoption of the ADA definition of "disability" for WLAD claims, not least of all the parties involved. Neither the parties nor amici curiae urged the court or even raised the issue of whether to adopt the ADA standard. Instead, they briefed the issue of whether the disability definition the Supreme Court had articulated for accommodation claims also should be applied to disparate treatment claims.3
The McClarty court, however, framed the issue broadly: "In disability discrimination suits brought under the WLAD, what is the appropriate definition of 'disability' to be applied?" A majority of the justices then revisited an argument from Pulcino v. Federal Express Corp. and changed its mind. The court overturned its holding in Pulcino and adopted the reasoning of the Pulcino dissent.
In 2000, the Pulcino court also had set out to clarify the definition of "disability" used for discrimination claims under the WLAD. The Legislature did not define "disability" in the Act. Instead, it left that job to what is now the Human Rights Commission, which defined "disability," as "any sensory, mental, or physical disability," which "(a) [i]s medically cognizable or diagnosable; (b) [e]xists as a record or history; (c) [i]s perceived to exist whether or not it exists in fact."4 As part of this definition, "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."5
This definition was widely seen as unwieldy because it required claimants to prove discrimination in order to prove that they were disabled. The Pulcino court addressed the problem with this definition only as it applied to a claim for failure to accommodate a disability because the court had already determined that Pulcino's disparate treatment claim failed for other reasons. The Pulcino court noted that "the circularity of the WAC definition makes it unworkable when an employee's claim is based upon an accommodation theory."6
The Pulcino court then crafted a more workable standard for accommodation claims. The court held that an employee with an accommodation claim had to prove that "(1) he or she has/had a sensory, mental, or physical abnormality and (2) such abnormality has/had a substantially limiting effect upon the individual's ability to perform his or her job."7 So, for accommodation claims at least, an employee did not need to prove the ultimate question of discrimination in order to prove that he or she was disabled.
On the other hand, the dissent in Pulcino strongly advocated for the adoption of the more restrictive ADA definition of "disability" and listed all of the other jurisdictions that had adopted the stricter definition. The Pulcino majority opinion responded by pointing out that Washington's disability definition is broader than the ADA definition, and that to "adopt ... the federal definition ... would be to undertake a task more appropriate for the Legislature."8 In 2001, the court affirmed its Pulcino holding in Hill v. BCTI Income Fund-I.9
The Court of Appeals Split
An open question remained about how to apply the WAC definition of "disability" to disparate treatment claims because Pulcino and Hill were specific to accommodation claims. Then, Division Three of the Court of Appeals weighed in with Roeber v. Dowty Aerospace Yakima10 and applied the disability definition from Pulcino to disparate treatment claims.
A split occurred when Division Two, in its opinion in McClarty,11 disagreed with Roeber. Division Two reasoned that an employee should not have to prove that a sensory, mental or physical abnormality interfered with the employee's ability to do his or her job if the employee was not asking for accommodation. Division Two held that "[i]n the absence of specific guidance from our Supreme Court ... we will apply the WAC definition of disability, however presently unworkable it may be" to disparate treatment claims.12 Division Two reversed summary judgment on McClarty's disparate treatment claims and remanded for trial.
This disagreement in the Court of Appeals nicely queued up the issue for the Supreme Court: Does the Pulcino definition of "disability" apply to disparate treatment claims? Pulcino's clear rejection of the possible adoption of the ADA definition of "disability" appeared to take that issue off the table.
McClarty Majority Revives Pulcino Dissent
After mulling over McClarty for approximately 19 months, a new majority on the Supreme Court rejected both the WAC definition and its own approach in Pulcino. The McClarty court not only reasoned that the WAC definition was circular, but also determined that the Pulcino definition of "disability" was unworkable because it "may confusingly conflate the concept of disability with the elements of a failure to accommodate claim. As a result, it is difficult to apply the Pulcino definition outside the accommodation context."13
The court also expressed concern that the prior definitions of "disability" protected too many abnormal medical conditions, which should not be considered disabilities. Writing for the majority, Justice James Johnson wrote that under the WAC definition, "a receding hairline could constitute a disability."14 He also quoted from the Pulcino dissent that such a broad standard "'trivializes the discrimination suffered by persons with disabilities.'"15
Although the McClarty court's receding-hairline-as-disability comment was most likely an exaggeration to prove a point, it is not a point missed by Washington's employers. They find themselves currently able to rely on a long line of federal cases regarding disability discrimination that protects only those employees with impairments severe enough to affect major life activities.
As of this writing, McClarty's counsel - Daniel F. Johnson at Short Cressman & Burgess PLLC, along with amici - have filed a motion for reconsideration, arguing that they should have been granted the opportunity to brief the adoption of the ADA definition of "disability." Stay tuned. n
Ross Farr is an associate attorney with Ogden Murphy Wallace, P.L.L.C. in its Employment and Labor Law Practice Group. He can be reached at rfarr@omwlaw.com.
1 McClarty v. Totem Electric, 2006 WL 1891845 (July 6, 2006).
2 Chapter 49.60 RCW.
3 "An employer who discharges, reassigns, or harasses for a discriminatory reason faces a disparate treatment claim; an employer who fails to accommodate the employee's disability, faces an accommodation claim." Pulcino v. Federal Express Corp., 141 Wn.2d 629, 640, 9 P.3d 787 (2000)..
4 WAC 162-22-020(2).
5 WAC 162-22-020(2) (emphasis added).
6 Pulcino, 141 Wn.2d at 641.
7 Id.
8 Id. at 642.
9 144 Wn.2d 172, 23 P.3d 440 (2001).
10 116 Wn. App. 127, 136-37, 64 P.3d 691 (2003).
11 McClarty v. Totem Electric, 119 Wn. App. 453, 81 P.3d 901 (2003).
12 Id. at 471.
13 McClarty, 2006 WL 1891845 at *7.
14 Id. at *6.
15 Id. (quoting Pulcino, 141 Wn.2d at 652 (Madsen, J., dissenting)).
