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Redefining "disability"
July 07, 2006 by Ross Runkel at LawMemo
It was a long road. Among cries of judicial legislation, the Washington Supreme Court adopted a new definition of "disability" - the same definition used by the federal Americans with Disabilities Act (ADA). The court split 5-4.
The past:
Washington courts have struggled to define "disability" under the Washington Law Against Discrimination (WLAD). The Washington State Human Rights Commission provided a definition in Washington Administrative Code (WAC) 162-22-020, which defines "disability" as "the presence of any sensory, mental, or physical disability .... " Under WAC 162-22-020, "[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] discriminated against .... "
A circular and confusing definition.
In Doe v. Boeing Co., 846 P.2d 531 (1993), the court noted that this definition is circular because it requires a factual finding that the employee was discriminated against "because of the condition in order to determine whether the condition is a [disability]." Similarly, the court has noted that "WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is 'disabled' in the first place."
The court sees the light. McClarty v. Totem Electric (Washington 07/06/2006) (5-4).
The court adopted a new definition of "disability" under WLAD, stating
"We adopt the definition of disability set forth in the federal ADA [(Americans with Disabilities Act )]."
"We hold 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 of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment."
The dissent sees darkness.
In a DISSENTING opinion Judge Alexander accused the majority of "legislating from the bench," and noted that the majority adopted a definition of "disability" not advocated by either party.
In a separate DISSENTING opinion Judge Owens leveled similar criticisms, observing "[r]ather than answering the narrow question before us, the majority has usurped the authority of the legislature and enacted a new law...."
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