Washington High Court Redefines "Disability" in Accord with Federal ADA

August 10, 2006

The Washington Supreme Court has dramatically changed the landscape for employers faced with disability discrimination claims under state law.  On July 6, 2006, the court issued its opinion in McClarty v. Totem Electric International and re-defined what constitutes a "disability" under the Washington Law Against Discrimination.

Previous Definitions Were Much Broader

Before McClarty, Washington employers sued under state law for disability discrimination were faced with a significant challenge: determining what definition of "disability" a court would use and what, if any, medical condition was excluded from protection. 

The challenge began with the WLAD failing to define disability.  The Washington Human Rights Commission, the administrative agency charged with implementing the WLAD, made matters worse by adopting an unworkable, circular definition.  According to the Commission, a disability is a "sensory, mental or physical condition that is medically cognizable or diagnosable that was "abnormal" "and is a reason why the person having the condition" was discriminated against.  In other words, a person had to show discriminatory treatment in order to show that he or she had a disability in the first place. 

In 2000, the Washington Supreme Court in Pulcino v. Federal Express Corp., addressed this circular definition in a case involving a claim that the employer failed to reasonably accommodate the plaintiff.  The court held that the Commission's definition was unworkable in the accommodation context.  The court held that a claimant could prove disability by showing (1) a sensory, mental, or physical abnormality, and (2) the abnormality has or had a substantially limiting effect on the individual's ability to perform the job.  But even after Pulcino, the Commission's problematic definition survived and was still applied in cases where the claimant alleged disparate treatment.  Both definitions were significantly broader than the definition of disability under the federal Americans with Disabilities Act (ADA).

The ADA Definition 

Under the ADA, a person with a disability is defined as a person (1) with a physical or mental impairment that substantially limits one or more major life activities, or (2) with a record of a substantially limiting impairment; or (3) who is regarded as having a substantially limiting impairment.  A "major life activity" is a task that is central to a  person's every day activities.  "Substantially limited" means "unable to perform a major life activity that the average person in the general population can perform."

Washington courts and litigants have long recognized that the Washington definition is much broader than the ADA.  The McClarty decision has changed that.

The Facts of the Case

The employee in McClarty was an electrician.  He was part of an apprenticeship program and dispatched to Totem Electric.  He performed various duties, including leveling trenches and laying plastic pipe. McClarty testified that he told his foreman that he was experiencing pain in his hands and asked for a break from digging.  Totem Electric instructed McClarty to see a doctor.  The doctor diagnosed bilateral carpal tunnel and specified work restrictions for six months.  The restrictions required that "{r}epeated push/pull," "{r}epeated simple grasp," and "{r}epeated fine manipulation"--were not to exceed 33 percent of an eight-hour workday.  When McClarty presented the doctor's note to Totem, he was laid off.  McClarty subsequently sued the company for disability discrimination, alleging both a failure to accommodate and disparate treatment theory.

The Court's Holding

Although no party advocated for adoption of the ADA definition of "disability," that is precisely what the court held.  Thus, a plaintiff suing for disability discrimination under the WLAD must show (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.  This definition applies in disparate treatment and reasonable accommodation cases.

The ruling has several important effects:  1) it overrules the Pulcino decision to the extent it defined disability differently in the accommodation realm; 2) the Human Rights Commission's definition of "disability" contained in Washington Administrative Code section 162-22-020 is rendered inoperable. 

The court provided several bases for its holding.  First, the adopted definition is consistent with the text and legislative intent of the WLAD.  Second, the Pulcino definition was problematic because an obviously disabled employee might be excluded under a strict reading of the case.  For example, a paraplegic applying for a position that did not require mobility would not be considered "disabled" because the condition did not substantially limit the ability to perform the job.  Accordingly, Pulcino's definition was difficult to apply in non-accommodation cases. 

Third, the WAC definition was unworkable because of its notorious circularity, requiring a plaintiff to prove the ultimate fact of discrimination as part of her prima facie case.  This, the court stated, was inconsistent with the intent of the legislature.  Fourth, although the Human Rights Commission ordinarily deserves deference when interpreting the WLAD, it did not deserve deference here because its definition was plainly faulty and in any event, the court is the final interpreter of statutes.  Since the court must give statutes a rational and sensible construction, and the HRC's definition failed to do this, its definition is rejected.  Finally the court relied on the ADA and cases interpreting as instructive in this area of the law. 

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