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Pulcino v. Federal Express Corp.9/14/2000
Rehabilitation Act and Washington's law, another author wrote that it would seem that the proper approach to coverage is to limit the definition of 'handicap' to individuals who have real and substantial disabilities along the lines set forth under the {federal} Rehabilitation Act {of 1973} {the same definition is used in the Americans with Disabilities Act}. This approach offers guidance to employers in terms of the prospective application of the law. It focuses administrative and judicial resources where they are needed most, and it offers protection to those who need protection without opening the floodgates to frivolous or vexatious litigation. Moreover, some limitation in defining who is handicapped is essential in order for the concept of reasonable accommodation to be workable.
Lee Miller, Hiring the Handicapped: An Analysis of Laws Prohibiting Discrimination Against the Handicapped in Employment, 16 Gonz. L. Rev. 23, 35 (1980-81) (footnotes omitted).
I agree with the majority that the Human Rights Commission's regulatory definition of a 'sensory, mental or physical disability' is unworkable. First, it is circular, though not for the reason stated by the majority. The definition in WAC 162-22-040(1) is circular because it first requires a finding of discrimination in order to determine what constitutes a disability for purposes of the laws against discrimination. Second, it is so expansive that it 'bring{s} virtually everyone within its ambit.' See Miller, 16 Gonz. L. Rev. at 30-31. However, I would not trade the regulatory definition for the majority's inclusion of commonplace injuries. I would hold that as a matter of law plaintiff's claimed disabilities do not constitute disabilities within the meaning of our statutes prohibiting discrimination on the basis of disability.
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