Petition asks for review of disability definition ruling

Civil rights advocates are asking the state Supreme Court to reconsider a decision made last month that narrowly defines who is disabled, limiting the ability of some Washington citizens to seek protection against discrimination.

The scope of the court’s July 6 decision in the case of Tacoma electrician’s apprentice Kenneth McClarty, who said he was fired because of a carpal tunnel injury caused by his work, caught many of the state’s prominent disability rights advocates off-guard.

Among them was Marc Brenman, executive director of the state Human Rights Commission, who called the 5-4 ruling in McClarty v. Totem Electric “a black eye for the state.”

“Washington state has traditionally been a pioneer in protection of people’s civil rights,” Brenman said. “This would be a step backward.”

The commission, charged with enforcing the Washington Law Against Discrimination, is among several public and private agencies that either have filed or are preparing friend-of-the-court – or amicus curiae – briefs in the case. They support a petition for reconsideration of the Supreme Court ruling that limits who is considered disabled under the state law to the more narrow definition of disability under Title I of the federal Americans with Disabilities Act.

The Supreme Court is under no obligation to take up the matter again. For now, the federal definition stands as Washington law.

Among those no longer protected against discrimination in such things as employment and housing, according to Brenman and other advocates, are people with psychiatric or emotional disabilities, people with diabetes, multiple sclerosis, arthritis or epilepsy and people with temporary disabilities.

“It’s dismaying when you look at it,” he said. “You say to yourself, ‘If these people aren’t disabled, who is?’ Do you have to be in an iron lung to be disabled?”

Brenman said the Human Rights Commission annually investigates about 1,000 complaints, about 40 percent of them involving disability.

“If we have to change our definition,” Brenman said, “20 (percent) to 50 percent of the types of complaints we investigate now would not be investigated.”

Business groups greeted the decision with “unanimous surprise and support for the court’s reasoning,” said Kris Tefft,general counsel for the Association of Washington Business, who added that it should mean fewer claims and less litigation.

“It shows a greater willingness to look to federal law in employment issues, something business has been looking for all along,” Tefft said.

In particular, he said, the ruling should be a relief to small businesses that have had to navigate the differences between state and federal laws.

“Sometimes they are more protective, sometimes less,” Tefft said. “It can be a real costly trap for the unwary.”

Though the Association of Washington Business supports the McClarty decision, it is unlikely to weigh in on the motion for reconsideration, Tefft said.

The reason advocates on both sides of the issue were surprised by the ruling is that the Supreme Court “issued a much more global ruling regarding the definition of disability” than either party in the McClarty v. Totem Electric case had sought, according to lawyers for the Washington Protection and Advocacy System, a private nonprofit organization that advocates for the rights of people with disabilities.

The court was asked to decide whether the definition of a disability in a “disparate treatment” claim – in this case, an employee who was discharged for discriminatory reasons – was the same as the definition in a case where the employer fails to make “reasonable accommodation” for a disabled employee.

Instead, the court rejected the state’s definition for any disability discrimination claim as interpreted by the Human Rights Commission in favor of the federal law’s narrower definition.

Writing for the majority, Justice James M. Johnson said, “The most obvious problem with (the state law) is that its definition of ‘disability’ is at odds with the plain meaning of the term.”

Johnson said that under the state’s definition, a “receding hairline could constitute a disability,” trivializing discrimination against people with disabilities.

“To provide a single definition of ‘disability’ that can be applied consistently throughout the (state law), we adopt the definition of disability set forth in the federal ADA,” Johnson wrote.

Justices Charles W. Johnson, Barbara A. Madsen, Richard B. Sanders and Bobbe J. Bridge concurred.

In her dissenting opinion, Justice Susan Owens wrote that the majority’s “judicial rewrite” of the state anti-discrimination law contravenes the intent of lawmakers. She was joined by Justices Tom Chambers and Mary E. Fairhurst. Chief Justice Gerry L. Alexander wrote a separate dissenting opinion, contending that the majority had “usurped the authority of the Legislature and enacted a new law.”

Owens said the Legislature has had many opportunities to narrowly define the term “disability” since the disability provision was added to anti-discrimination law in 1973.

The definition didn’t change in 1993, for instance, when business interests asked the Legislature to adopt a narrower definition.

“The Legislature clearly intended that the law be interpreted liberally,” said Jesse Wing, of the Washington Employment Lawyers Association. David Carlson, an attorney for the Washington Protection and Advocacy System, said the state’s definition of disability has been around for decades, “and we have not run into the receding hairline problem.” Far from generating specious lawsuits, the state law has protected people suffering discrimination who are not protected by the ADA, he said.

Now, “people with disabilities will have less protection from people with irrational biases,” Carlson said. “If we have to fight about these definition issues, we won’t have the resources to protect as many people.”

Carlson’s nonprofit organization was joined by the National Alliance on Mental Illness Greater Seattle, the Tacoma Area Coalition of Individuals with Disabilities, the Epilepsy Foundation and the Alliance of People with Disabilities in urging the court to reconsider.

The Washington Employment Lawyers Association and the Washington state Labor Council have filed a separate amicus curiae brief .

What worries these groups is that the ADA, which has been eroded in recent years by federal court decisions, narrowly defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities.”

In contrast, the state law’s broader definition of disability is “a sensory, mental or physical condition that is medically cognizable or diagnosable.”

The big difference, Brenman said, is that the federal definition requires courts to consider whether an individual is trying to “ameliorate” a disability such as epilepsy or a mental condition that can be mitigated by drugs.

Carlson said this difference creates the potential for a legal Catch-22 in which a person with a psychological disorder can, through medication, get well enough to go back to work.

“Once they are able to go back to work, they are no longer protected and an employer can fire them for whatever reason, including mental disability,” Carlson said.

Brenman said the Supreme Court’s decision, if it stands, has the potential to deny thousands of disabled citizens constitutional protection.

“We all know people who have had injuries and illnesses who can’t work because of a disability,” the human rights director said. “They become much more of a burden to the economy if they are not working and paying taxes. This will throw more people out of work. It seems to run counter to other driving forces in society to get people more gainfully employed.”