Washington's discrimination law now follows ADA definition of 'disability'

By Marc Rosenberg

The definition of “disability” under the federal Americans with Disabilities Act also governs Washington's Law Against Discrimination, the Washington Supreme Court has held.

In McClarty v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006), the Washington Supreme Court adopted the definition of disability as set forth in the federal Americans with Disabilities Act of 1990, 42 U.S.C.S. §§ 12101-12209, to provide for a single definition of “disability” that can be applied consistently throughout the Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW.

The Washington State Human Rights Commission adopted a regulation, WAC 162-22-020, that defined “disability” as the presence of a sensory, mental, or physical condition that (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. For enforcement purposes, a person was considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition, and if the condition was abnormal. Courts had followed this definition in disability-discrimination claims under the WLAD.

The McClarty Court held that this WAC was flawed and unduly complicated. One reason the Court adopted the ADA definition was that the prior definition was too broad and defined disability to include any medically cognizable abnormality, which “trivialize[d] the discrimination suffered by persons with disabilities.” The Court stated that the WLAD speaks in terms of “disability,” not of “medical condition,” and held that the prior definition was far broader than the plain and ordinary meaning of the term “disability,” and that the text of the statute or the history underlying it could not support that broader definition. This shift in definition has broad implications in disability-discrimination claims under the WLAD.