Labor and Employment Law Alert: Disability Discrimination - Coverage Becomes Even Wider
Two significant developments, one by the Washington Legislature and the other by the Ninth Circuit Court of Appeals (with jurisdiction over Oregon and California as well as Washington), have thrown the meaning of 'disability' and what employers are required to do under the disability laws into confusion—again. Although employers not subject to Washington’s Law Against Discrimination may not worry about amendments to that law, the recent court decision makes clear that its rulings are equally applicable to cases under federal law, so all employers in the Ninth Circuit should pay attention to the ruling.
On May 4, 2007, Washington’s Law Against Discrimination was revised to greatly expand the definition of "disability." Now virtually any employee with a diagnosable condition is a potential plaintiff. Last week’s amendment is a rejection of the Washington Supreme Court’s 2006 decision in McClarty v. Totem Electric, where the Court held that the Americans with Disabilities Act’s (the "ADA") definition of "disability" applied under the WLAD. The McClarty decision was considered favorable to Washington employers because it used the ADA definition of disability rather than the confusing and circular definition previously applied under the WLAD.
The new legislation says that a "disability" is "a sensory, mental, or physical impairment that (i) is medically cognizable or diagnosable; or (ii) exists as a record or history; or (iii) is perceived to exist whether or not it exists in fact." Intentionally covering more conditions than federal law, the new legislation states, "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 a "compromise" sure to cause confusion, the new law establishes different standards for evaluating claims for reasonable accommodation. In those cases—but only those cases—the disability must be known to the employer and have a substantially limiting effect on the employee. A limitation is not substantial if it has only a trivial effect.
An example of just how broad the WLAD coverage is can be found in last month’s decision by the Ninth Circuit in Gambini v. Total Renal Care, Inc. The Ninth Circuit reiterated that under Washington law, employers may be required to accommodate violations of workplace rules, including basic behavioral expectations, when such misconduct is the result of the employee’s mental or physical disability.
Gambini suffered from bipolar disorder. Over time, her symptoms became more severe, negatively affecting her work. She was given a performance improvement plan — but the meeting did not go well. The plaintiff cried, threw the plan across the desk, and expressed "a flourish of several profanities" that the criticism was unfair and unwarranted. The employer concluded that this behavior justified termination. In making that decision, the employer considered emails from several co-workers expressing concern about the plaintiff’s behavior and requesting that she not be allowed to return.
The Ninth Circuit held that the trial court should have told the jury that "[c]onduct resulting from a disability is part of the disability and not a separate basis for termination." Because the plaintiff’s violent outbursts were arguably symptomatic of her bipolar disorder, the violent outburst was protected by law as "part and parcel of her disability."
On a slightly more positive note for employers, the Gambini court did indicate that an employer is not entirely defenseless in the face of unacceptable conduct from an employee with a disability. The court noted that an employee must still show that he or she is "qualified" for the position. Moreover, even if the plaintiff establishes that he or she is qualified, the court noted that the ADA allows an employer to raise a "business necessity" or "direct threat" defense against a discrimination claim in certain situations. An employer may also raise the defense that the proposed reasonable accommodation—tolerating the misbehavior—poses an undue burden.
For more information about the issues in this bulletin, please contact the Stoel Rives attorney with whom you regularly consult. For a list of attorneys in the Labor and Employment Group, click here.
This is a publication of the Stoel Rives Labor & Employment group for the benefit and information of clients and friends. This bulletin is not legal advice or a legal opinion on specific facts or circumstances. The contents are intended for informational purposes only. Copyright 2007, Stoel Rives LLP.