The Employer Adviser Hot Sheet -Breaking Developments in Labor and Employment Law
07.11.06
Washington State Supreme Court Narrows Definition of Disability Under
Washington's Law Against Discrimination
In an employer-friendly decision, a fractured Washington Supreme Court has adopted the federal
definition of "disability" and rejected the definition promulgated by the Washington Human
Rights Commission ("HRC"). In McClarty v. Totem Electric, a 5-4 majority ostensibly resolved
the ongoing debate over the proper definition of a disability under the Washington Law Against
Discrimination ("WLAD"), holding that "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 major life activities, (2) a record of such an impairment, or (3) is [sic] regarded as
having such an impairment." This definition is identical to "disability" as defined under the
Americans With Disabilities Act ("ADA"). The ruling is a striking departure from the more
expansive definition of disability found in WAC 162-22-020, which Washington courts had
previously adopted.
Factual Background
Kenneth McClarty was an apprentice electrician dispatched by his union to Totem Electric, the
electrical subcontractor on a high school renovation project. During the three months he worked
on the project, McClarty performed a variety of tasks, which required continuous use of his
hands, wrists, and arms in a repetitive manner. McClarty then began experiencing pain in his
hands. He also experienced extended loss of sensation in his extremities and complained that his
hands were falling asleep at night.
McClarty informed his supervisor about the pain in his hands and asked for a change of
assignment from the trench work. McClarty then saw a physician, who diagnosed him with
bilateral carpal tunnel syndrome and put him on a modified work regimen. McClarty provided
Totem with his doctor's note. Later that same day, Totem gave McClarty a written termination
notice, citing the reason for the termination as "reduction in work forces/lay-off."
McClarty sued Totem and the union, alleging both failure to accommodate and disparate
treatment in violation of the WLAD, unfair retaliation in violation of Washington's Industrial
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Insurance Act, wrongful termination, and breach of contract. All claims against the union were
dismissed, and Totem moved for summary judgment on the disability discrimination, retaliatory
discharge, and wrongful termination claims. The trial court granted Totem's motion, and
McClarty appealed.
The Court of Appeals affirmed the grant of summary judgment on the failure to accommodate
claim, but reversed and remanded for further proceedings on the disparate treatment claim.
Specifically, the Court of Appeals ruled that the definition of disability in reasonable
accommodation claims, as set forth in Pulcino v. Federal Express Corp., did not apply in
disparate treatment claims. The Court also held that the question of whether a medical condition
qualified as a disability under WAC 162-22-020 was a question of fact, not properly disposed of
on summary judgment. Totem appealed, and the primary issue before the Supreme Court was the
proper definition of "disability" for lawsuits brought under the WLAD.
Definition of "Disability" Is Significantly Limited
In a surprising turn, the majority rejected both the definition set forth in Pulcino and WAC 16222-020, which broadly defined "disability" as "the presence of any sensory, mental, or physical
disability," which includes but is not limited to, circumstances where such a condition "(a) Is
medically cognizable or diagnosable; (b) Exists as a record or history; [or] (c) Is perceived to
exist whether or not it exists in fact." Instead, the Supreme Court adopted the ADA's definition
of disability, which neither side nor amici had proposed. The new definition as set forth in
McClarty will apply to both failure to accommodate claims, as well as disparate treatment
claims.
The Court's ruling both expands and contracts the WLAD's protections. It rejected the Pulcino
test, which had the potential to bar valid claims of discrimination on disability status alone (as
opposed to requiring the disability to substantially limit an employee's ability to perform the job
at issue). The Court also rejected the broad WAC definition, opining that the definition simply
cast the net too wide, permitting claims based on "disabilities" that do not merit protection. It
noted that under the WAC definition, a receding hairline would be considered a disability. The
Court reasoned that permitting plaintiffs to claim discrimination based on such a medical
condition would clog the courts and waste judicial resources.
The Court's opinion also suggested a new willingness to follow federal disability law when
interpreting the WLAD. This willingness may signal a departure from previous Washington
jurisprudence on disability discrimination cases, where the Court previously had recognized that
the WLAD affords much broader protection than the ADA.
What This Means for Employers
The McClarty decision significantly raises the burden for a plaintiff-employee claiming a
disability. It narrows what employers have long considered an excessively broad definition of
disability under the WLAD. The case also provides clarity and uniformity, creating a single
definition of disability for both failure to accommodate and disparate treatment claims. Further,
because the Court has signaled its intent to more closely follow federal employment law, there
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may be more consistency between state and federal rulings. Employers should continue to be
cautious when handling disability issues that arise in the workplace. Two justices authored harsh
dissents in the case, offering detailed criticism of the majority's opinion. Both justices accused
the majority of "legislating from the bench," which may spark public support for legislative
action. Pro-employee groups may lobby the legislature to revive the broad definition of
disability. Until that happens, however, the McClarty/ADA definition of disability will apply.
For more information, please contact the Labor and Employment Law Practice Group at Lane
Powell:
206.223.7000 Seattle
503.778.2100 Portland
employlaw@lanepowell.com
www.lanepowell.com
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