Washington – Legislature Rejects the Washington Supreme Court’s McClarty Decision: Enacts Expanded Definition of “Disability”
 
March 5, 2008
 
Louis Santiago - Portland

A bill expanding the definition of “disability” under the Washington Law Against Discrimination (WLAD) was passed by the Washington state legislature during the 2007 legislative session. Substitute Senate Bill 5340 (SSB5340) was enacted in direct response to the Washington Supreme Court’s recent decision in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006). Pursuant to SSB, 5340, a violation of the WLAD occurs if a Washington state employer discriminates against an applicant or employee because of the presence of any sensory, mental, or physical disability. The new law will likely have the effect of requiring Washington employers to treat nearly all medical conditions as disabilities. On the other hand, the new law makes clear that not every applicant or employee with a disability is entitled to reasonable accommodation protections under the WLAD.

The McClarty Decision

At the time of the McClarty decision, the WLAD lacked a statutory definition for the term “disability.” The McClarty court addressed the question of the definition of “disability” to be applied in disability discrimination suits brought under the WLAD. After analyzing conflicting definitions applied by the Washington State Human Rights Commission and various Washington courts, the McClarty court held that the definition of “disability” under the WLAD is the same as the definition of “disability” under the federal Americans with Disabilities Act (ADA).

Following the McClarty decision numerous citizen groups contacted members of the Washington state legislature to complain that the case had been wrongly decided. Consequently, Section 1 of SSB 5340 states:

The legislature finds that the supreme court, in its opinion in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006), failed to recognize that the Law Against Discrimination affords to state residents protections that are wholly independent of those afforded by the federal Americans with Disabilities Act of 1990, and that the law against discrimination has provided such protections for many years prior to passage of the federal act.

“Disability” Defined

Under SSB 5340:

(a) “Disability” means the presence of a sensory, mental, or physical impairment that:

(i) Is medically cognizable or diagnosable; or
(ii) Exists as a record or history; or
(iii) Is perceived to exist whether or not it exists in fact.

(b) A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.

“Impairment” Defined

In addition to defining a “disability,” SSB 5340 defines the term “impairment” as follows:

(c) For purposes of this definition, “impairment” includes, but is not limited to:

(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or

(ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Disability Discrimination Prohibited

Under the amended statute, a violation of the WLAD occurs if a Washington employer discriminates against an applicant or employee because of the presence of any sensory, mental, or physical disability. In light of the very broad definitions of “disability” and “impairment” contained in SSB 5340, as a practical matter it will be extremely difficult for Washington employers to defend against WLAD disability claims on the ground that no qualifying “disability” exists.

Reasonable Accommodation

Despite the broad definitions of “disability” and “impairment”, SSB 5340 makes clear that not every applicant or employee with a “disability” is entitled to a reasonable accommodation under the WLAD. Only those applicants and employees who have an impairment that meets the following standard are entitled to reasonable accommodation protections:

(d) Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:

(i) The impairment must have a substantially limiting effect upon the individual’s ability to perform his or her job, the individual’s ability to apply or be considered for a job, or the individual’s access to equal benefits, privileges, or terms or conditions of employment; or

(ii) The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impair- ment to the extent that it would create a substantially limiting effect.

(e) For purposes of (d) of this subsection, a limitation is not substantial if it has only a trivial effect.

SSB 5340 Applies Retroactively and Prospectively With Exceptions

SSB 5340 explicitly states that it “applies to all causes of action occurring before July 6, 2006,” the date of the McClarty decision, and “to all causes of action occurring on or after the effective date of this act,” July 22, 2007. Disability causes of action occurring between July 6, 2006, and July 22, 2007, will apply the McClarty court definitions, not the SSB 5340 definitions. Commentators speculate that the legislature adopted this patchwork approach in an effort to avoid due process and constitutional law challenges that would arise if SSB 5340 applied to causes of action arising while the McClarty decision was the law.

Recommendations to Employers

Washington employers need to be more diligent than ever in addressing employee medical conditions and requests for reasonable accommodation. Those employers should review applicable policies and procedures to ensure continued compliance with the WLAD. Additionally, managers and supervisors should be trained to recognize issues arising under the new law.

For more information, email Louis Santiago at louis.santiago@hklaw.com or call toll free, 1.888.688.8500.