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Thursday, November 30, 2017

WLAD: Definition of Disability

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), RCW Chapter 49.60, what is the definition of disabilityHere’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability or perceived disability or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit. 

DEFINITION OF DISABILITY

For those employees claiming disability discrimination in Washington, one primary issue is whether their disability is recognized under WLADAccording to WLAD, a “disability” means the presence of a sensory, mental, or physical impairment that:
  1. Is medically cognizable or diagnosable;
  2. Exists as a record or history; or
  3. Is perceived to exists whether or not it exists in fact.

Additionally, 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 WLAD. RCW 49.60.040(7)(b). And 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, organ brain syndrome, emotional or mental illness, and specific learning disabilities.

Lastly, only for the 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.
RCW 49.60.040(7)(d). For purposes of RCW 49.60.040(7)(d), a limitation is not substantial if it has only a trivial effect.  Keep in mind that the laws on this subject can be complex and confusing and there are many more to consider in prosecuting a claim of disability discrimination.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.


–gw

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