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Thursday, May 28, 2020  Spokane, Washington  Est. May 19, 1883
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Bill aims to restore rights of disabled

In a rebuff to the Washington Supreme Court, the Legislature has reaffirmed its commitment to protecting the rights of persons with disabilities beyond the protections provided under federal law.

Senate Bill 5340, which was approved by the House on 66-32 vote, is intended to restore state protections to those who lost them last summer when the high court forced a narrower federal definition of what constitutes a disability.

As a result of the court’s ruling in McClarty v. Totem Electric, civil rights and labor advocates said, many people were no longer protected against discrimination in employment or housing, for example.

Under the federal Americans with Disabilities Act, 96 percent of disability rights cases are dismissed on summary judgment, according to Marc Brenman, executive director of the state Human Rights Commission, the agency charged with enforcing the Washington State Law Against Discrimination.

Thanks to the Legislature, Brenman said, the state’s law will continue to be “the broadest civil rights statute in the country.”

A spokesman for the Washington Association of Business, a principal supporter of the Supreme Court decision, was unavailable for comment Thursday.

Since the high court’s ruling in July, numerous discrimination cases have been backed up in lower courts across the state in anticipation of the Legislature’s action.

Last month, the Senate approved the bill, as introduced by Judiciary Committee Chairman Adam Kline, D-Seattle. As originally written, Kline’s bill contained a strong rebuke to the court, which he said overstepped its constitutional role.

On Thursday, Kline called the McClarty decision, authored by Justice James M. Johnson, hypocritical because the conservative justice had campaigned on a pledge of opposition to judicial activism.

William Powell, a Spokane attorney who works on many labor and employment cases, agreed with Kline’s assessment.

“It was the rankest judicial activism you could ever engage in,” Powell said.

McClarty also was a peculiar decision, Powell said, because neither side raised the issue of how disability is defined in the Washington Administrative Code. Powell said he also had a problem with the lack of due process in the decision because interested parties, including the Human Rights Commission, were denied an opportunity to argue their positions.

The bill as it emerged from the House this week softens Kline’s rebuke, saying merely that the court was “incorrect, in that it failed to recognize” that the state law intended “to provide protections independent of federal law.”

The substitute bill, which Kline said is virtually assured Senate approval, was the product of negotiations with business interests, including the Washington Association of Business, which said the state definition lacked clarity.

Compromises included a provision that an employee be able to perform the essential function of a job with or without reasonable accommodation.

In addition, the act will not apply to cases that occurred between July 6, 2006, when the McClarty decision was reached, and July 1, 2007, when the act goes into effect.

This window was inserted in the interest of fairness to employers.

“I wasn’t thrilled with it, but it was something I could live with,” said Rep. John McCoy, D-Tulalip, whose support was instrumental in the bill’s approval in the House.

McCoy said most employers make a reasonable effort to accommodate employees with disabilities without being told to. He also said that he respects the work of Supreme Court justices,

“It’s just that on this point, I was in disagreement with them,” McCoy said.

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