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French v. Hawaii Pizza Hut9/30/2004
truing discrimination claims under HRS §§ 378-1 and -2, we may look "to the interpretations of analogous federal laws by the federal courts for guidance." Shoppe, 94 Hawaii at 377, 14 P.3d at 1058. Under Bitney, the trial court must first consider whether a plaintiff's conditions are "physical or mental impairments." 96 Hawaii at 251-52, 30 P.3d at 265-66 (quoting Epstein, 100 F. Supp. 2d at 225). Our own HAR § 12-46-182(h)(1) and federal regulation 29 C.F.R. § 1630.2(h)(1) contain identical language defining "physical or mental impairments." See 29 C.F.R. § 1630.2(h)(1); HAR § 12-46-182(h)(1). " hysical or mental impairments" is defined by both HAR § 12-46-182(h)(1) and 29 C.F.R. § 1630.2(h)(1) as " ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: . . . musculoskeletal." "Musculoskeletal" refers to both a person's musculature and skeleton. Webster's Seventh New Collegiate Dictionary 558 (1965). In this case, Pizza Hut does not dispute that Appellant's lifting restriction qualified as a physical impairment.
"The [trial c]court must next consider whether the life activities allegedly affected by the impairment 'are "major" life activities under the ADA.'" Bitney, 96 Hawaii at 252, 30 P.3d at 266 (quoting Epstein, 100 F. Supp. 2d at 225) (internal quotation marks omitted)). Under the relevant HAR 12-46-182, "lifting" is described as a major life activity. Major life activities are those "basic activities and functions which the average person in the general population can perform with little or no difficulty, including, but not limited to . . . lifting, . . . and working." HAR § 12-46-182 (emphasis added). Pizza Hut does not dispute that "lifting" is considered a major life activity.
"Finally, the [trial c]court must consider whether the plaintiff's impairment 'substantially limits' the major life activity he [or she] has identified." Bitney, 96 Hawaii at 252, 30 P.3d at 266 (quoting Epstein, 100 F. Supp. 2d at 226). An impairment "substantially limits" a major life activity if the individual is:
(1) In general:
(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. HAR § 12-46-182; see also 29 C.F.R. § 1630.2(j)(1)(i), (ii). HAR § 12-46-182 further states that:
(2) The following factors should be considered in determining whether a person is substantially limited in a major life activity:
(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.
Appellant argues that her ability to lift was substantially limited because lifting in excess of twenty pounds caused her significant pain. In addition, Appellant argues that this limitation has persisted for over five years and appears chronic. Appellant's physician documented her inability to lift in excess of twenty-five pounds at least through February 1996. Although Appellant recuperated from her May 1995 surgery by February 1996, the limitation on her ability to lift persisted.
Pizza Hut, on the other hand, contends that the definition of "substantially limits" does not include temporary impairments. HAR § 12-46-182 states that " emporary, non-chron
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