March 1, 2012 in Opinion

Editorial: Law’s definition renders it unworkable

 

“Rights panel poorly understood,” said the headline on Wednesday’s Spokesman-Review article about the Washington Human Rights Commission. That’s certainly accurate, but the misunderstanding is also understandable, because the state law that governs its decisions in disability cases is intentionally vague and difficult for employers to administer.

The panel is in the news because it is reconsidering the disability claim of fired Spokane police Sgt. Brad Thoma. His claim that his termination was a violation of the Americans with Disabilities Act due to his alcoholism is only part of the story, because the state Legislature has chosen to adopt a definition of disability that is broader than the federal law.

The circular logic of that law goes something like this: If a condition causes an employee to be “discriminated” against, then that condition constitutes an impairment that is subject to the Washington Law Against Discrimination.

If that’s confusing to you, imagine what it’s like for employers.

The WLAD was adopted in the 1970s and has been a source of confusion ever since. Attempts to pin down definitions have only complicated matters. Federal disability law protects workers by prohibiting discrimination based on impairment and puts the onus on employers to reasonably accommodate the condition. But it comes with a clear definition of “disability.” WLAD does not.

In 1999, the Human Rights Commission adopted the aforementioned circular definition, which defies common sense. A year later, the Washington Supreme Court introduced a different definition when it comes to accommodating a disability, noting that WLAD’s version was “unworkable.”

These two confusing definitions co-existed until 2006, when the state Supreme Court settled on the federal ADA definition of disability, noting in McClarty v. Totem Electric that the overly expansive WLAD could be interpreted to cover such trivial conditions as receding hairlines.

Having a consistent, workable definition under ADA was a relief to employers, but it didn’t last long. In 2007, the state Legislature was persuaded essentially to reinstate the WLAD muddle. Under that statute, disability for discrimination claims means “the presence of a sensory, mental, or physical impairment that (1) is medically cognizable or diagnosable, (2) exists as a record or history, or (3) is perceived to exist whether or not it exists in fact.”

Lawmakers suddenly invented a whole slew of disabled people and exacerbated it by adding workers who are temporarily “disabled.” Moreover, workers don’t actually have to be disabled.

The law ought to be named the Employer Nightmare Act, because that would appear to be its sole purpose. There is no logical reason for the state to reach beyond federal disability law and invent these ridiculously contorted standards.

Lawmakers need to revisit this issue and make a reasonable accommodation for employers.

To respond to this editorial online, go to www.spokesman.com and click on Opinion under the Topics menu.


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