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

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Relying in large part on McClarty, Michael A. Patterson and I won a seven-day jury trial in Moore v. King County Fire Prot. Dist. No. 26, et al., in the Western District of Washington. Plaintiffs, a firefighter and his wife, alleged disability discrimination against a Fire District that employed him, along with a list of other claims, some of which the court dismissed on summary judgment.

In Moore, plaintiff claimed to have a rare kidney problem that required medical treatment. After using all of the medical leave, vacation time, and holiday time provided under his collective-bargaining agreement, the Fire District granted plaintiff a discretionary six-month leave to obtain an operation to implant a nerve stimulator to reduce pain. Shortly after returning to work, plaintiff damaged his stimulator and requested an additional few months' leave. The Fire District later terminated his employment.

The Fire District contended that Moore was able to work perfectly well after the second operation. On behalf of the Fire District, we submitted Ninth Circuit Jury Instructions on plaintiffs' claims of disability discrimination under the WLAD. We argued that the Washington Pattern Instructions contained the obsolete definition of disability that the McClarty Court had rejected, and that the Ninth Circuit's ADA instructions were more appropriate. The District Court agreed and gave the Ninth Circuit instructions, which included higher standards of disability than those previously used under the WLAD. For example, to qualify as disabled, plaintiff had to have an impairment that, when viewed in its corrected or mitigated state, substantially limited a major life activity.

In Moore, the jury returned a defense verdict for our client. The verdict turned on the jury’s finding that plaintiff had no “disability” as the WLAD now defined the term. Plaintiffs had demanded several million dollars in settlement negotiations and argued to the jury that it should return a multi-million-dollar verdict.