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French v. Hawaii Pizza Hut9/30/2004
as appropriate as to French's claims of age and gender discrimination. However, I agree with Justice Nakayama that, as in this case, when the claimed impairment is not substantially limiting by its nature, the plaintiff is required to produce comparative evidence indicating that the average person in the general population can either (1) perform the major life activity that the plaintiff cannot or (2) perform the activity under conditions, in a manner, or for a duration that the plaintiff cannot.
DISSENTING OPINION BY NAKAYAMA, J.
I respectfully dissent from the majority's holding that a lifting restriction of twenty-five pounds raises a genuine issue of material fact as to whether, as a consequence of her limitation on lifting, Appellant is "disabled" under Hawaii Revised Statutes (HRS) § 378-2 (1993).
The disposition of Appellant's claim of disability discrimination turns on the construction and application of administrative rules that interpret the State's statutory prohibition on employment discrimination based on an employee's disability. Central to Appellant's claim is HRS § 378-2, which protects an individual who is "disabled" from being discriminated against in the terms, conditions, or privileges of employment on account of her "disability." HRS § 378-2(1)(A) (1993). A "disability" in turn is defined under HRS § 378-1 as "the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment." HRS § 378-1 (1993).
While the parties dispute whether Appellant's lifting restriction causes her to be "disabled" within the meaning of HRS § 378-1, they do not contest that her inability to lift more than twenty-five pounds constitutes a "physical impairment," and that "lifting" is a "major life activity." Accordingly, the only question left to be determined is whether Appellant's lifting restriction "substantially limits" her ability to lift.
Because the statute does not define the term "substantially limits," the accompanying Hawaii Administrative Rules (HAR) may be looked to for guidance. Under the HAR, " ertain impairments such as blindness, deafness, HIV infection, and AIDS are by their nature substantially limiting" with respect to the individual's performance of major life activities. HAR § 12-46-182 (1998). An impairment that is not substantially limiting "by nature" may alternatively be found to substantially limit a major life activity if the impairment renders the individual either
(A) Unable to perform a major life activity that the average person in the general population can perform; or
(B) Significantly restricted as to the condition, manner, or duration under which a person can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
Id. Finally, in determining whether an individual's impairment satisfies the above criteria, the following factors should be considered:
(A) The nature and severity of the impairment;
(B) The duration or expected duration of the impairment; and
(C) The permanent or long-term impact of, or the expected permanent or long-term impact of the impairment.
Id.
The HAR Rules therefore fashion a two-tiered inquiry to determine whether an individual's impairment is "substantially limiting." Cf. Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1240-1241 (10th Cir. 2001) (discerning such an approach in analogous federal regulations). The impairm
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