On May 4, 2007, Governor Christine Gregoire signed Substitute Senate Bill 5340 (SSB 5340), which was enacted by the Washington State Legislature during the 2007 legislative session to add new statutory definitions of "disability" and "impairment" to the Washington Law Against Discrimination. The law becomes effective on July 22, 2007, and applies to "all causes of action occurring before July 6, 2006" as well as "all causes of action occurring on or after the effective date" of July 22, 2007.

Background

SSB 5340 was enacted in direct response to the Washington Supreme Court's recent decision in McClarty v. Totem Electric¹. In McClarty, the Washington Supreme Court addressed the question of what definition of "disability" is to be applied in disability discrimination suits brought under the Washington Law Against Discrimination (WLAD). At the time of McClarty, the WLAD did not contain any statutory definition of the term "disability." As a consequence, employers were left to interpret the meaning of "disability" based on regulations adopted by the Washington State Human Rights Commission (HRC), and prior court decisions interpreting the WLAD.² These alternative interpretations of the term "disability" by the HRC and the Washington courts led to "confusing results" and "different definitions, depending on [the] type of claim."³

In order to reconcile these differences and provide for a single definition of "disability" that could be applied consistently throughout the WLAD, the Washington Supreme Court held in McClarty that the definition of "disability" under the WLAD is the same as the definition of "disability" under the federal Americans with Disabilities Act (ADA). Specifically, the court held that "a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment." Thus, the Washington Supreme Court harmonized state disability law under the WLAD with federal law under the ADA. This holding had the effect of adding to state law the requirement that an impairment "substantially limit one or more major life activities" for it to qualify as a "disability" under the WLAD.

Washington Legislature Enacts SSB 5340 to Overrule McClarty Decision

Following the issuance of the Supreme Court's decision in the McClarty case on July 6, 2006, numerous constituent groups and stakeholders contacted members of the Washington State Legislature to complain that the McClarty decision had gone too far, and had impermissibly restricted the definition of "disability" under the WLAD. See Senate Bill Report for SSB 5340, available at http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5340&year=2007. In response to these comments and criticisms, the Washington State Legislature enacted SSB 5340 in order to legislatively overrule the McClarty decision. As expressly stated in Section 1 of SSB 5340:

The legislature finds that the supreme court, in its opinion in McClarty v. Totem Electric, 157 Wn.2d 214, 137 P.3d 844 (2006), failed to recognize that the Law Against Discrimination [WLAD] affords to state residents protections that are wholly independent of those afforded by the federal Americans with Disabilities Act of 1990, and that the law against discrimination has provided such protections for many years prior to passage of the federal act.

SSB 5340 Adopts New Statutory Definitions of "Disability" and "Impairment"

By enacting SSB 5340, the Washington State Legislature adopted, for the first time, specific statutory definitions of "disability" and "impairment." Under SSB 5340, a "disability" under the WLAD is defined as follows:

1. "Disability" means the presence of a sensory, mental, or physical impairment that:
   
   1. Is medically cognizable or diagnosable; or
   2. Exists as a record or history; or
   3. Is perceived to exist whether or not it exists in fact.
2. A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter.

In addition to defining "disability," SSB 5340 also provides the following definition of "impairment" for purposes of determining what qualifies as a "sensory, mental or physical impairment" under the definition of "disability:"

3. For purposes of this definition, "impairment" includes, but is not limited to:
   
   1. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
   2. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

SSB 5340 Provides Separate Definition of "Impairment" for Purposes of Determining When Reasonable Accommodation Is Required Under WLAD

Although the Washington State Legislature enacted broad definitions of "disability" and "impairment" under SSB 5340 for purposes of addressing disparate treatment claims, the Legislature narrowed the definition of "impairment" for purposes of reasonable accommodation claims. As stated in Section 2of the new law:

4. Only for purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:
   
   1. The impairment must have a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment; or
   2. The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.
5. for purposes of (d) of this subsection, a limitation is not substantial if it has only a trivial effect.

The Legislature's Final Bill Report on SSB 5340 explains the meaning of this new reasonable accommodation provision as follows:

For purposes of qualifying for reasonable accommodation in employment, the employee's impairment must be known by the employer, or be shown through an interactive process to exist in fact. The impairment must either have: (1) a substantially limiting effect on the individual's ability to perform his or her job, to apply or be considered for a job, or to access equal benefits, privileges or terms of employment; or (2) the reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect. If the proposed basis for accommodation is the reasonable likelihood that the impairment would be aggravated otherwise, the employee must notify the employer of the impairment. Also, medical documentation must establish this basis. A limitation is not substantial if it has only a trivial effect.

See http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5340&year=2007.

SSB 5340 Applies Both Retroactively and Prospectively

By its express terms, SSB 5340 applies retroactively to "all causes of action occurring before July 6, 2006 [the date of the Washington Supreme Court's decision in the McClarty case]," and prospectively to "all causes of action occurring on or after the effective date of this act [July 22, 2007]." Thus, employers are now faced with two different definitions of "disability" under the WLAD. Disability discrimination claims arising before July 6, 2006, and after July 21, 2007, are to be determined using the definitions provided in SSB 5340. By contrast, disability discrimination claims arising between July 6, 2006 and July 21, 2007 are to be determined using the definition of "disability" adopted by the Washington Supreme Court in the McClarty case. Presumably, the Legislature adopted this patchwork-quilt approach in an effort to avoid the due process and constitutional law problems that would arise if SSB 5340 applied retroactively to all claims, including those arising after the Supreme Court's decision in the McClarty case. Whether SSB 5340's retroactivity clause will withstand legal challenge and scrutiny remains to be seen.

Looking Ahead: What SSB 5340 Means for Washington Employers

SSB 5340 has several important legal implications for Washington employers. First, as a result of the enactment of SSB 5340, the regulatory definition of "disability" previously adopted by the HRC in WAC 162-22-020 is now obsolete. Employers will no longer be required to apply the HRC's circular and problematic definition of "disability" (which suggested that an employee could only be considered "disabled" if "he or she is discriminated against because of" a sensory, mental or physical condition).

Second, SSB 5340 expressly overrules the definition of "disability" adopted by the Washington Supreme Court in the McClarty case. As a consequence, Washington employers may not use the ADA definition of "disability" (which requires a physical or mental impairment that "substantially limits one or more major life activities") to comply with their obligations under the WLAD. As clarified and amended by SSB 5340, the WLAD provides broader protections under state law than those afforded under federal law.

Third, SSB 5340 incorporates many of the same legal standards that applied under Washington law before the McClarty decision. As an example, consistent with pre-McClarty cases and the language of the former HRC regulation, SSB 5340 defines disability to mean the "presence of sensory, mental, or physical impairment" 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." This language is drawn directly from the legal standards that existed in Washington prior to the McClarty case.

Fourth, SSB 5340 adds several new provisions and legal standards that previously did not exist under Washington law. As an example, "disability" is now defined in broad terms to include any qualifying sensory, mental or physical impairment, whether or not the impairment is "temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter." This broad definition of "disability" opens the door to numerous impairments that would not have qualified under the ADA definition of "disability" adopted by the Washington Supreme Court in the McClarty case. As a practical matter, SSB 5340 will make it extremely difficult for employers to defend against disability claims on the ground that no qualifying "disability" exists – virtually any sensory, mental or physical condition appears to qualify as a "disability" under the new law. With this expansion of the definition of "disability" under state law, the legal battleground in Washington has now shifted to the question of causation – i.e., was the disability a substantial factor in the employer's alleged discrimination against the employee?

SSB 5340's accommodation provisions also inject new concepts and standards into Washington law. As amended by SSB 5340, the WLAD now requires reasonable accommodation by an employer if an employee puts the employer on notice "of the existence of an impairment, and medical documentation [establishes] a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect." This "aggravated impairment" basis for reasonable accommodation is a new standard under Washington law.

One final question raised by the language of SSB 5340 is the status of the "medically necessary" requirement for reasonable accommodation under Washington law.⁴ Presumably, by using the phrase "reasonable accommodation," the Legislature intended to incorporate the requirement that an accommodation be "medically necessary" before it will qualify as a "reasonable" accommodation. Whether and how SSB 5340's specific reference to "medical documentation" (in the second paragraph of the reasonable accommodation section) may affect this issue remains to be seen.

¹ 157 Wn.2d 214, 137 P.3d 844 (2006).

² See WAC 162-22-020; Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Wash. State Human Rights Comm'n, 87 Wn.2d 802, 805-6, 557 P.2d 307 (1976); Doe v. Boeing, 121 Wn.2d 8, 15, 846 P.2d 531 (1993); Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641, 9 P.3d 77 (2000).

³ McClarty, 157 Wn.2d at 222.

⁴ See Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004) ("If accommodation is not medically necessary, it is unreasonable to require an employer to provide accommodation").

Douglas Edward Smith and Leigh Ann Tift are Shareholders in Littler Mendelson's Seattle office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com, Mr. Smith at desmith@littler.com, or Ms. Tift at ltift@littler.com.