Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 75024-6
Title of Case: Ken McClarty v. Totem Electric, International
Brotherhood of Electrical Workers Local 76
File Date: 07/06/2006
Oral Argument Date: 01/19/2005
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Daniel J Berschauer
JUSTICES
--------
Authored by James Johnson
Concurring: Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Richard B. Sanders
Dissenting: Gerry L Alexander
Susan Owens
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
William G. Jeffery
The Jeffery Group PLLC
11300 Pinehurst Way NE
Seattle, WA 98125-6332
Elisabeth Anne Kranz
The Jeffery Group
11300 Pinehurst Way NE
Seattle, WA 98125-6332
Counsel for Respondent(s)
Daniel Foster Johnson
Short Cressman & Burgess
999 3rd Ave Ste 3000
Seattle, WA 98104-4088
Anne-Marie E Sargent
Connor & Sargent PLLC
999 3rd Ave Ste 4200
Seattle, WA 98104-4090
Amicus Curiae on behalf of ASSOCIATED GENERAL CONTRACTORS OF WASHINGTON
John Stephen Riper
Stanislaw Ashbaugh LLP
701 5th Ave Ste 4400
Seattle, WA 98104-7012
Amicus Curiae on behalf of WASHINGTON EMPLOYMENT LAWYERS ASSOC
Jeffrey Lowell Needle
Maynard Building
119 1st Ave S Ste 200
Seattle, WA 98104-3450
Richard D Reed
Attorney at Law
1218 3rd Ave Ste 1500
Seattle, WA 98101-3021
In the Supreme Court of the State of Washington
KENNETH McCLARTY, )
)
Respondent, ) No. 75024-6
)
v. ) En Banc
)
TOTEM ELECTRIC, )
) Filed July 6, 2006
Petitioner. )
)
J.M. JOHNSON, J.--Totem Electric seeks review of a Court of Appeals
decision reversing the summary judgment dismissal of a disparate treatment
discrimination claim brought by a former employee, Kenneth McClarty
(McClarty). The central issue is the definition of "disability" within the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. For the
reasons stated herein, we reverse and remand for the trial court to apply
the definition stated herein to the facts in this case.
Facts
McClarty had been a residential electrician for approximately 20 years when
he decided to move into industrial/commercial electrical work. In March
1998, he began a five-year apprenticeship program with the Tacoma-based
Southwest Washington Electrical Joint Apprenticeship Training Program,
which combined classroom instruction and on-the-job training. 1 On April
17, 1998, McClarty's union, Local 76 of the International Brotherhood of
Electrical Workers, dispatched him to Totem Electric, the electrical
subcontractor on the Old Tumwater High School renovation project. He
worked there until his termination three months later. McClarty performed
various duties, including using a jackhammer and shovel to level trenches
dug by a backhoe, installing plastic pipe through which wires were pulled,
organizing material in on-site trailers, and doing rough-in work for the
school's classrooms. From July 7 until July 31, McClarty worked at
leveling trenches and laying plastic pipe.
McClarty testified that he told his foreman that he was experiencing pain
in his hands and asked for a break from digging. Totem Electric asserts
that McClarty mentioned this problem for the first time on July 28, when he
reported that his hands hurt from the digging and they fell asleep at
night. Totem Electric told him to consult a doctor.
On July 30, 1998, Samuel E. Coors, D.O., diagnosed McClarty with bilateral
carpal tunnel and specified work restrictions for an estimated six-month
period. The restrictions required that "{r}epeated push/pull," "{r}epeated
simple grasp," and "{r}epeated fine manipulation"--were not to exceed 33
percent of an eight-hour workday. Clerk's Papers (CP) at 56. The
following day McClarty gave Totem Electric the "Doctor's Release for Work."
That same day, Totem Electric gave McClarty a written termination notice
identifying the reason for the termination as a "Reduction in work
forces/lay-off." CP at 57.
McClarty testified that the project foreman, Rick Sare, told him that the
carpal tunnel diagnosis was the basis for the layoff. Sare testified that
the remaining work on the project required the restricted hand and wrist
movements and that, in any case, McClarty's work performance had been poor.
The week following McClarty's termination, Totem Electric hired two
apprentices dispatched by the same union, at lower rank and pay.
McClarty had received a work evaluation from that program dated July 22,
1998, rating his overall "knowledge of the trade and performance on the
job" as "Below Average." CP at 122. Two additional evaluations from the
program, dated August 25, 1998, assigned overall ratings of "Below Average"
and the lowest possible rating, "Unsatisfactory." CP at 120, 121.
McClarty was also terminated from the joint apprenticeship program by
letter dated September 23, 1998.
McClarty, acting pro se, filed a complaint in July 2001 in Thurston County
Superior Court against Totem Electric and against his union, Local 76,
alleging unfair employment practices in violation of RCW 49.60.180 and
.190, retaliatory practices in violation of RCW 51.48.025, wrongful
termination, and breach of contract. Local 76 removed the matter to the
United States District Court for the Western District of Washington, which
dismissed all of McClarty's claims against Local 76 in December 2001 and
remanded the remaining state claims to superior court.2
In January 2002, the trial court denied McClarty's motion for partial
summary judgment on the issue of Totem Electric's employment
discrimination. Totem Electric moved for summary judgment in August 2002,
seeking dismissal of the three remaining claims--disability discrimination
under RCW 49.60.180, retaliatory discharge under RCW 51.48.025, and
wrongful termination. McClarty conceded that the retaliation claim should
be dismissed but contested the summary judgment. In October 2002, the
trial court granted Totem Electric's motion, dismissing McClarty's
complaint in its entirety and awarding Totem Electric its costs and
statutory fees.
The Court of Appeals affirmed the grant of summary judgment on McClarty's
accommodation claim, but reversed the grant of summary judgment on his
disparate treatment claim and remanded the case for further proceedings,
deferring the issue of attorney fees until the ultimate prevailing party
could be determined by the trial court on the merits. McClarty v. Totem
Elec., 119 Wn. App. 453, 473, 81 P.3d 901 (2003).
We granted Totem Electric's petition for review "only as to the issue
regarding the definition of disability in disparate treatment claims" and
"the issue presented by {McClarty} regarding attorney fees." Wash. State
Supreme Court Order, McClarty v. Totem Elec., No. 75024-6, 152 Wn.2d 1011
(Sept. 10, 2004). We denied McClarty's cross-petition for review of the
dismissal of his accommodation claim.3
Issues
(1) In disability discrimination suits brought under the WLAD, what is the
appropriate definition of "disability" to be applied?
(2) Did the Court of Appeals properly conclude that under the WLAD any
award of attorney fees on appeal must be deferred until the prevailing
party has been determined by the trial court on the merits?
Analysis
To provide for a single definition of "disability" that can be applied
consistently throughout the WLAD, we adopt the definition of disability as
set forth in the federal Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. sec.sec. 12101-12209. We hold 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.
A. Standard of Review
"When reviewing an order of summary judgment, this Court conducts the same
inquiry as the trial court." Pulcino v. Fed. Express Corp., 141 Wn.2d 629,
639, 9 P.3d 787(2000). Summary judgment is appropriate only when, after
reviewing all facts and reasonable inferences in the light most favorable
to the nonmoving party, there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. CR 56(c);
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). "All
questions of law are reviewed de novo." Berger v. Sonneland, 144 Wn.2d 91,
103, 26 P.3d 257 (2001).
B. Unlawful Termination: Disparate Treatment Claim
In Washington, an employer generally has the common law right to terminate
an employee "for no cause, good cause or even cause morally wrong without
fear of liability." Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 226,
685 P.2d 1081 (1984). The WLAD represents a statutory exception to this
rule barring race, sex, disability, and other enumerated characteristics
from providing a basis for hiring or discharge.4
As applicable here, the WLAD forbids an employer from discharging an
employee because of the presence of any sensory, mental, or physical
disability. RCW 49.60.180(2). The WLAD also forbids an employer from
discriminating against an employee in compensation or in other terms or
conditions of employment because of any sensory, mental, or physical
disability. RCW 49.60.180(3). RCW 49.60.180(1) prohibits refusing to hire
on the same grounds.
The legislature first enacted the WLAD in 1949 to eliminate racial
discrimination in employment. See Laws of 1949, ch. 183; Rem. Rev. Stat.
sec. 7614 (Supp. 1949). The statute was extended to prohibit
discrimination against "handicapped" persons in 1973. See Laws of 1973,
1st ex. sess., ch. 214.
The Federal Rehabilitation Act of 1973 (29 U.S.C. sec. 701), a precursor to
the federal ADA, was passed in the same year. When the federal ADA was
adopted in 1990, it used the term "disability" instead of "handicapped."
We have concluded that the use of the term "disability" has evolved to the
point that its definition in the federal statute and in Washington's should
be the same.
In 1993, the legislature amended the WLAD, replacing all uses of the term
"handicap" with the term "disability." See Laws of 1993, ch. 510. In our
jurisprudence the terms "handicap" and "disability" are interchangeable.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 191 n.17, 23 P.3d 440 (2001).
The WLAD makes it unlawful for an employer, "{t}o expel from membership any
person because of age, sex, marital status, race, creed, color, national
origin, or the presence of any sensory, mental, or physical disability
. . . ." RCW 49.60.190(2). These provisions give rise to disability
discrimination claims under two theories - disparate treatment and failure
to accommodate. "'An employer who discharges, reassigns, or harasses for a
discriminatory reason faces a disparate treatment claim; an employer who
fails to accommodate the employee's disability, faces an accommodation
claim.'" Pulcino, 141 Wn.2d at 640 (quoting Hill v. BCTI Income Fund-I, 97
Wn. App. 657, 667, 986 P.2d 137 (1999).
Of central importance here, the legislature has never found it necessary to
define the terms "handicap" or "disability" within the WLAD.5
Unfortunately, and with confusing result, applications of the same term
"disability" have led to different definitions, depending on type of claim.
We shall attempt to reconcile these differences.
In 1975, however, the Washington State Human Rights Commission (HRC) did
adopt a regulation to define "handicap," which it later amended several
times. As amended, the regulation provides that:
(1) "Disability" is short for the statutory term "the presence of any
sensory, mental, or physical disability," except when it appears as part of
the full term.
(2) "The presence of a sensory, mental, or physical disability"
includes, but is not limited to, circumstances where a sensory, mental, or
physical condition:
(a) Is medically cognizable or diagnosable;
(b) Exists as a record or history;
(c) Is perceived to exist whether or not it exists in fact.
A condition is a "sensory, mental, or physical disability" if it is an
abnormality and is a reason why the person having the condition did not get
or keep the job in question, or was denied equal pay for equal work, or was
discriminated against in other terms and conditions of employment, or was
denied equal treatment in other areas covered by the statutes. In other
words, for enforcement purposes a person will be considered to be disabled
by a sensory, mental, or physical condition if he or she is discriminated
against because of the condition and the condition is abnormal.
WAC 162-22-020 (emphasis added) (codifying as amended HRC Order 23, sec.
162-22-020 (filed July 21, 1975)). This WAC was flawed (as well as unduly
complicated).
Just one year later, this court did not utilize this HRC definition of
"handicap" in deciding a vagueness challenge to RCW 49.60.180.6 See Chic.,
Milwaukee, St. Paul & Pac. R.R. Co. v. Wash. State Human Rights Comm'n, 87
Wn.2d 802, 805-06, 557 P.2d 307 (1976). This court relied on the plain and
ordinary meaning of the term "handicap" as set forth in the dictionary. "A
disadvantage that makes achievement unusually difficult; esp : a physical
disability that limits the capacity to work." Webster's Third New
International Dictionary 1026 (1961).
Nearly 20 years later, we again expressly acknowledged that the HRC
regulation was problematic. Doe v. Boeing Co., 121 Wn.2d 8, 15, 846 P.2d
531 (1993). We specifically noted that the regulation was circular: it
required a factual finding that the plaintiff was discriminated against
"because of the condition in order to determine whether the condition is a
'handicap.'" Id.
In Pulcino, seven years later, we concluded that the circularity of WAC
162-22-020 rendered it unworkable in the context of accommodation cases.
We reasoned that
{t}he employee would . . . have to prove that the employer failed to
accommodate the employee (i.e., discriminated against him or her) because
of the employee's abnormal condition. This implies that the employer
accommodates other employees; but, obviously, employees who are not
disabled do not require such accommodation.
Pulcino, 141 Wn.2d at 641.
Accordingly, Pulcino defined "disability" to require a claimant to prove
that (1) he or she has or had a sensory, mental, or physical abnormality,
and (2) the abnormality has or had a substantially limiting effect on his
or her ability to perform the job. Id. We further provided that "{a}n
employee can show that he has a sensory, mental or physical abnormality, by
showing that he or she has a condition that is medically cognizable or
diagnosable, or exists as a record or history." Id.
A year later in Hill, we reinforced our reasoning in Pulcino, observing
that the circularity of WAC 162-22-020
makes it impossible for plaintiffs to satisfy their first intermediate
evidentiary burden without simultaneously producing evidence in support of
their ultimate allegation, namely, that the adverse action occurred because
of that alleged "disability."
Hill, 144 Wn.2d at 192 n.19. While acknowledging that the case did not
require us to decide whether Pulcino should be applied to all disability
discrimination cases, we noted that we were "greatly troubled" by WAC 162-
22-020, seeing "no principled reason why it should be fundamentally harder
to establish prima facie cases of disability discrimination under RCW
49.60.180 than prima facie cases of any other form of discrimination made
unlawful by {the WLAD}." Hill, 144 Wn.2d at 192 n.19.7 It appears that we
would have applied a single definition to both claims had Hill properly
preserved her disparate treatment claim. Id. at 193 n.20.
The most obvious problem with WAC 162-22-020 is that its definition of
"disability" is at odds with the plain meaning of the term. Where, as
here, a statute fails to define a term, rules of statutory construction
require us to give the term its plain and ordinary meaning, which we derive
from a standard dictionary if possible. Schrom v. Bd. for Volunteer Fire
Fighters, 153 Wn.2d 19, 28, 100 P.3d 814 (2004). See also One Pac. Towers
Homeowners' Ass'n v. HAL Real Estate Invs., Inc., 148 Wn.2d 319, 330, 61
P.3d 1094 (2002) (stating that we should also keep in mind the context of
the statute as a whole and the intent of the legislature).
Bearing this in mind, we earlier relied on the plain meaning of the term
"handicap" in rejecting a vagueness challenge to RCW 49.60.180:
Men of common intelligence need not guess at the meaning of "handicap"
because it has a well defined usage measured by common practice and
understanding. "Handicap" commonly connotes a condition that prevents
normal functioning in some way. A person with a handicap does not enjoy,
in some manner, the full and normal use of his sensory, mental, or physical
faculties. A "handicap" is: " . . . a disadvantage that makes achievement
unusually difficult; esp: a physical disability that limits the capacity to
work." Webster's Third New International Dictionary (1961). It is obvious
that "handicap" has a well understood, common meaning. Men of ordinary
intelligence undoubtedly can understand what constitutes a "handicap"
within the context of RCW 49.60.180(1) . . . .
Chi., Milwaukee, St. Paul & Pac. R.R. Co., 87 Wn.2d at 805-06 (citations
omitted) (emphasis added).
The 1993 substitution of "disability" for "handicap" in the WLAD did not
change this common sense conclusion. "Disability" means the "inability to
do something." Webster's Third New International Dictionary of the English
Language 642 (2002). Specifically, it includes "a physical or mental
illness, injury, or condition that incapacitates in any way." Id. Given
this definition, a disability discrimination claimant should be required
"to show that his condition substantially limited his ability to perform"
something before he is deemed disabled under the WLAD. McClarty, 119 Wn.
App. at 470. The United States Supreme Court has come to the same
conclusion.
That the regulation definition of "disability" contravenes the purpose of
the WLAD was not the only problem. WAC 162-22-020 also conflicts with much
of our antidiscrimination jurisprudence because the regulation would
require a disability discrimination plaintiff to prove that he has been
discriminated against because of his condition to prove that he is
"disabled" in the first place. As acknowledged in the Court of Appeals
decision below, this requirement destroys the McDonnell Douglas burden-
shifting scheme because it forces a plaintiff to prove the ultimate fact of
discrimination simply to make a prima facie case. McClarty, 119 Wn. App.
at 467. See also Hill, 144 Wn.2d at 192 n.19.
This burden violates the legislature's command that the provisions of the
WLAD be liberally construed, RCW 49.60.020, and is inconsistent with the
burdens placed upon plaintiffs in other types of discrimination cases.
See, e.g., Hill, 144 Wn.2d at 181 (noting that a prima facie case of racial
discrimination requires plaintiff to show simply, inter alia, "that {the
plaintiff} belongs to a racial minority.").
This analysis requires us to discard the regulation definition, as we did
in Pulcino and Hill. Cf. In re Parentage of C.A.M.A., 154 Wn.2d 52, 67,
109 P.3d 405 (2005); Griffin v. Eller, 130 Wn.2d 58, 69-70, 922 P.2d 788
(1996).
Previous definition efforts have also failed because they result in
defining "disability" to include any medically cognizable abnormality.
Such a definition is far broader than the plain and ordinary meaning of the
term "disability" and cannot be supported by the text of the statute or the
history underlying it.
The WLAD speaks in terms of "disability," not of "medical condition." Cf.
Chai R. Feldblum, Definition of Disability Under Federal Anti-
Discrimination Law: What Happened? Why? And What Can We Do About It?, 21
Berkeley J. Emp. & Lab. L. 91, 101-02 (2000).8 Furthermore, "'{i}t is
doubtful that any legislature intended, or even envisioned, that its
handicapped discrimination laws would be interpreted to address the
problems associated with a sprained finger or ankle.'" Pulcino, 141 Wn.2d
at 661-62 (Madsen, J., dissenting) (quoting 3A Arthur Larson & Lex K.
Larson, Employment Discrimination sec. 107.32(c), at 22-131 (1991)).9
Illustrating this point, counsel for amicus Washington Employment Lawyers'
Association (WELA) conceded at argument that, under the definition in WAC
162-22-020, a receding hairline could constitute a disability. See Wash.
State Supreme Court oral argument at 55:30, McClarty v. Totem Elec., No.
75024-6 (Jan. 19, 2005), audio recording by TVW, Washington State's Public
Affairs Network, available at http://www.tvw.org. Such an extension
"trivializes the discrimination suffered by persons with disabilities."
Pulcino, 141 Wn.2d at 652 (Madsen, J., dissenting).
The Pulcino definition also had difficulties. As McClarty and WELA argue,
some obviously disabled, e.g. the blind or the paraplegic, may not be
considered disabled under a strict reading of the Pulcino definition. They
suggest, for example, that a paraplegic applying for a position that did
not require mobility might not be considered disabled under Pulcino because
the medical condition would not have a substantially limiting effect on his
ability to perform that job. In addition, beyond defining "disability,"
Pulcino may confusingly conflate the concept of disability with elements of
a failure to accommodate claim. As a result, it is difficult to apply the
Pulcino definition outside the accommodation context.
It is true that a court will often give weight to a statute's
interpretation by the agency which is charged with its administration.
Marquis v. City of Spokane, 130 Wn.2d 97, 111, 922 P.2d 43 (1996).
However, this court has the ultimate authority to construe statutes, Waste
Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wn.2d 621, 627, 869
P.2d 1034 (1994), and statutes must be given a rational and sensible
interpretation, State v. Thomas, 121 Wn.2d 504, 512, 851 P.2d 673 (1993).
WAC 166-22-020(2) is not a rational and sensible interpretation of the term
"disability" as it is used in the WLAD, and we reject it in favor of a
definition better supported by the WLAD's text, the legislature's intent
and our jurisprudence.
To provide a single definition of "disability" that can be applied
consistently throughout the WLAD, we adopt the definition of disability set
forth in the federal ADA. We hold 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.
This court has held that federal law is instructive with regard to our
state discrimination laws. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471,
478, 989 P.2d 1214 (1999). See also Clarke v. Shoreline Sch. Dist. No.
412, 106 Wn.2d 102, 118, 720 P.2d 793 (1986); Dean v. Mun. of Metro.
Seattle, 104 Wn.2d 627, 638, 708 P.2d 393 (1985). Additionally, this court
has previously used definitions given by the Equal Employment Opportunity
Commission to define the ADA when deciding questions of Washington
discrimination law. See Davis v. Microsoft Corp., 149 Wn.2d 521, 70 P.3d
126 (2003). See also Herring v. Dep't of Soc. & Health Servs., 81 Wn. App.
1, 914 P.2d 67 (1996); Dedman, 98 Wn. App. 471.
A physical or mental impairment that is substantially limiting impairs a
person's ability to perform tasks that are central to a person's everyday
activities, thus are "major life activities." Toyota Motor Mfg., Ky., Inc.
v. Williams, 534 U.S. 184, 195, 122 S. Ct. 681, 151 L. Ed. 2d 615 (2002).
The United States Supreme Court has held that substantially limited means
"'{u}nable to perform a major life activity that the average person in the
general population can perform'" id. at 195 (quoting 29 C.F.R.
sec. 1630.2(j) (2001)) and defined major life activities as "those
activities that are of central importance to daily life." Id. at 197.
Several considerations support the definition we give here. First, and
most importantly, it is consistent with the plain meaning of the term
"disability" as utilized by the legislature and the history underlying the
WLAD. Second, it accords closely with the definition of the same term
"disability" in the federal ADA. This is appropriate, given that the
original federal and Washington laws against disability discrimination were
enacted nearly contemporaneously and directed at the same issue. See also
Clarke, 106 Wn.2d at 118 ("when Washington statutes or regulations have the
same purpose as their federal counterparts, we will look to federal
decisions to determine the appropriate construction.").10, 11 Finally, the
proposed definition would ensure that scarce judicial resources are
available to those most in need of the WLAD's protections, rather than
persons with receding hairlines. This definition should avoid
"trivializ{ing} the discrimination suffered by persons with disabilities."
Pulcino, 141 Wn.2d at 652 (Madsen, J., dissenting).
We remand to the trial court to apply this definition to McClarty's
disparate treatment claim.
C. Attorney Fees
Reasonable attorney fees may be awarded on appeal if applicable law grants
a party the right to recover such fees or expenses on review before either
the Court of Appeals or the Supreme Court. RAP 18.1(a). The WLAD allows a
plaintiff in a discrimination action to recover "the cost of suit including
reasonable attorneys' fees." RCW 49.60.030(2).
Although McClarty sought attorney fees on appeal, he now correctly concedes
that courts have declined to award fees under the WLAD until the plaintiff
prevails.12 McClarty also raises the issue of his entitlement to costs on
appeal. "A commissioner or clerk of the appellate court will award costs
to the party that substantially prevails on review, unless the appellate
court directs otherwise . . . ." RAP 14.2 (emphasis added.) Costs include
statutory attorney fees and reasonable expenses that are specifically
enumerated in RAP 14.3.
McClarty argues that he substantially prevailed on appeal because he
obtained a reversal of the trial court's summary dismissal of his disparate
treatment claim. Totem Electric contends that it prevailed because the
dismissal of McClarty's failure to accommodate claim was affirmed on
appeal.
McClarty and Totem Electric have each prevailed on some issues. Under such
circumstances, neither party has substantially prevailed, and the parties
must bear their own costs. See Nw. Television Club, Inc. v. Gross Seattle,
Inc., 96 Wn.2d 973, 985-86, 640 P.2d 710 (1981). The trial court may also
consider fees after disposing of the case on remand.
Conclusion
Where the legislature employs a term of common usage and chooses to define
the term no further, it is the duty of this court to give effect to that
meaning. Here, we have restated our legislature's understanding of these
common terms in a manner consistent with comparable federal protections for
those, and only those, included within these protections. This should
leave this important area of law clearer in providing appropriate
protection for those truly disabled.
AUTHOR:
Justice James M. Johnson
WE CONCUR:
Justice Charles W. Johnson
Justice Barbara A. Madsen
Justice Richard B. Sanders
Justice Bobbe J. Bridge
1 The apprenticeship program is run by the union and employers.
2 Before the state court action, Local 76 moved for correction of the
caption and was removed as a party defendant.
3 The dismissal was based on McClarty's inability to satisfy the second
prong of the Pulcino definition--proof that his carpal tunnel syndrome "had
a substantially limiting effect upon {his} ability to perform his . . .
job." Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641, 9 P.3d 787
(2000). As the Court of Appeals observed, McClarty testified in his
deposition that the medical restriction applied only to jackhammering and
shoveling more than a third of the day, that no such work remained to be
performed, and that he could do "anything" required. McClarty, 119 Wn.
App. at 468 (quoting CP at 96).
4 Under WLAD, RCW 49.60.030, .175, .176, .178, .180, .190, .200, .215, .222
and .225 prohibit discrimination against the disabled. The statutes cover
employment, insurance, facility access, etc.
5 Conversely, the Americans with Disabilities Act of 1990, Pub. L. No. 101-
336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. sec.sec. 12101-
12209) (ADA), one of the WLAD's federal counterparts, explicitly defines
"disability."
6 While WAC 162-22-020 was adopted July 21, 1975, this court's decision in
Chicago was not published until over one year later, thus this court had
the opportunity to use the definition but did not.
7 For example, "a prima facie case of racial discrimination," for instance,
is generally established "by showing (i) that {the plaintiff} belongs to a
racial minority; (ii) that he {or she} applied and was qualified for a job
for which the employer was seeking applicants; (iii) that, despite his {or
her} qualifications, he {or she} was rejected; and (iv) that, after his {or
her} rejection, the position remained open and the employer continued to
seek applicants from persons of complainant's qualifications." McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).
8 Feldblum, a leading disability-rights advocate, observes that the federal
Rehabilitation Act of 1973 prohibited discrimination based on "handicap"
and not on the basis of physical or mental impairment. She notes that
disability-rights advocates were primarily concerned with extending civil
rights protections to severely impaired individuals who were the
traditional targets of discrimination. See Feldblum, 21 Berkeley J. Emp. &
Lab. L. at 102. The same considerations apply here, given that our
legislature extended the WLAD's protections to handicapped persons during
the same year that the Rehabilitation Act was enacted by Congress.
9 In her dissent in Pulcino, Justice Madsen persuasively demonstrates the
truth of this statement through an exhaustive examination of other states'
disability discrimination laws. See Pulcino, 141 Wn.2d at 654-60 (Madsen,
J. dissenting); cf. Wendy E. Parmet, Plain Meaning and Mitigating Measures:
Judicial Interpretations of the Meaning of Disability, 21 Berkeley J. Emp.
& Lab. L. 53, 64 (2000) (noting that, in enacting the ADA, Congress "did
not intend that every conceivable condition would constitute a
disability.").
10 Moreover, as a practical matter, there is an abundance of authority
interpreting the ADA that, while not binding upon our disposition of state
law claims, see Hill, 144 Wn.2d at 180, they could assist us in construing
and applying similar provisions in the WLAD. See, e.g., Toyota Motor Mfg.,
534 U.S. 184; 29 C.F.R. sec. 1630.2(j)(2) (listing factors to consider in
determining whether individual is "substantially limited").
11 The dissents suggest this opinion may be viewed as legislating from the
bench. This criticism misses the mark. First, this court's decisions in
Pulcino v. Federal Express Corp. and Hill v. BCTI had both recognized that
the same WAC definition was circular and could not be effectively applied
as written. Second, our legislature did not define disability--the
definition under review is an administrative agency regulation. We are
following our legislature's intent in applying the plain and ordinary
understanding, which is assumed when the legislature does not further
define a term.
12 Although RCW 49.60.030(2) does not expressly provide for attorney fees on
review, Washington courts have interpreted the statute to authorize such
awards. See, e.g., Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 533, 844
P.2d 389 (1993) (citing Allison v. Hous. Auth. of City of Seattle, 118
Wn.2d 79, 98, 821 P.2d 34 (1991); Minger v. Reinhard Distrib. Co., 87 Wn.
App. 941, 948, 943 P.2d 400 (1997)). The correct answer, however, is that
an employee who brings a claim under the WLAD is entitled to attorney fees
only if his or her claim is meritorious: "Entitlement to attorney fees
cannot be determined until after trial on the merits." Hinman v. Yakima
Sch. Dist. No. 7, 69 Wn. App. 445, 453, 850 P.2d 536 (1993). "Where a
party has succeeded on appeal but has not yet prevailed on the merits, the
court should defer to the trial court to award attorney fees." Riehl v.
Foodmaker, Inc., 152 Wn.2d 138, 153, 94 P.3d 930 (2004). Here, the Court
of Appeals correctly deferred any award of reasonable attorney fees because
McClarty's disparate treatment claim under the WLAD has not yet been
decided on the merits. McClarty, 119 Wn. App. at 473.