Court Adopts ADA Definition of Disability for WLAD Undercutting Long-Standing Precedent; Motion for Reconsideration is Pending

Experienced electrician Ken McClarty sued his employer for, among other things, disability discrimination under RCW 49.60. ?After McClarty was diagnosed with bilateral carpal tunnel and gave his employer a ?Doctor’s Release for Work? with work restrictions, his employer Totem Electric terminated him as a ?Reduction in work forces/lay-off.? McClarty testified that the foreman? said? he? was? laid? off? because? of? his carpal tunnel diagnosis and then Totem Electric hired two electricians.?? The trial court granted summary ?judgment ?for ?Totem? Electric.?? ?The Court of Appeals affirmed on McClarty?s reasonable? accommodation? claim,? but? reversed on? his? disparate? treatment? claim.???? ?The Washington Supreme Court accepted a petition for review of the definition of ?disability? for the disparate treatment claim.? ??Should it be the definition of ?disability? articulated Y in Pulcino v.?? Federal?? Express?? Corp.,?? 141?? Wn.2d?? 629 (2000), for failure to accommodate claims [urged by the defense] or the definition of ?disability? promulgated by the Washington State Human Rights ?Commission ?[(HRC)] ?in ?WAC ?162-22- 020 [urged by the plaintiff]??? ?The WAC was promulgated in 1975 and followed by the Court. Without notice to the parties or the HRC, the Washington Supreme Court rejected the WAC definition as circular, declined the Pulcino definition,? and? adopted the? ADA? definition? of ?disability? effectively gutting long-standing precedent that was much more protective of disabled employees.? ?In doing so, the Court ignored? the? Pattern? Jury ?Instructions ?resolving the circularity, rejected the WAC definition to which it long ago gave ?great weight,? and imported a federal definition lacking Washington legislative? intent ?and ?which ?is ?construed narrowly – whereas RCW 49.60 is construed liberally – all in favor of a definition which it held better reflects the plain meaning of ?disability? as set out in dictionary definitions. A?? motion?? for?? reconsideration?? supported?? by various amici such as WELA and the HRC is pending.? ?McClarty v. Totem Elec., 157 Wn.2d 214?? (2006)?? (J.?? Johnson?? wrote?? the?? majority opinion?? for?? Madsen,?? Bridge,?? C.?? Johnson, Sanders; Alexander dissented; Owens dissented joined by Chambers, Fairhurst).