Statement on signing of "Disability Definition" legislation

Senate Bill 5340, signed today by Gov. Gregoire, corrects a decision of the Washington Supreme Court, in McClarty v. Totem Electric, 157 Wn.2d 214 (2006). In that case, an electrician who had been laid off because of his medical condition, carpal tunnel syndrome, sued under the Washington Law Against Discrimination. Although the statute had never defined “disability” for purposes of disability discrimination, the Washington state courts had defined the term in over thirty years of case-law. Our law has been interpreted to require the plaintiff (the party claiming discrimination) to show that he or she had “a sensory, mental, or physical abnormality,” and further, that it was the reason that he or she was denied the job in question, or subject to discriminatory job action. This has been settled law in Washington for three decades.

In McClarty, a majority opinion written by Justice Jim Johnson discarded this settled law entirely, and in a startling feat of judicial activism, ruled that Washington state is governed by the federal law, the Americans with Disabilities Act (ADA), despite the fact that it was not enacted by Congress until almost a decade after the Legislature added disability as a ground for suit under the state law. It is not by coincidence that the state law definition is relatively broad, since the Legislature required that it be “liberally interpreted” (RCW 49.60.020), while the narrower federal law is favored by business and employer interests.

It is disturbing that a majority of the Court needs to be shown that state law governs, and even more disturbing that a Justice of the Supreme Court who campaigned long and loud against “judicial activism” has engaged in a blatant display of that behavior. In any case, with the passage of SB 5340, the Legislature has reclaimed its role as the law-making branch of state government.

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