WASHINGTON STATE HUMAN RIGHTS COMMISSION
GUIDE TO DISABILITY and WASHINGTON STATE
NONDISCRIMINATION LAWS
FREQUENTLY ASKED
QUESTIONS AND ANSWERS
OLYMPIA HEADQUARTERS OFFICE
711 S. Capitol Way, Suite 402
PO Box 42490
Olympia, WA 98504-2490
TEL: 360-753-6770 - FAX: 360-586-2282
Toll Free: 1-800-233-3247
TTY: 1-800-300-7525
Se Habla Español
www.hum.wa.gov
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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WASHINGTON STATE HUMAN RIGHTS COMMISSION (WSHRC)
GUIDE TO DISABILITY and WASHINGTON STATE
NONDISCRIMINATION LAW
INTRODUCTION
In Washington State, the Legislature has enacted a broad definition of disability
that increases protections for persons with medical, psychological, and other
impairments. The Washington definition is different than the definition found in
the Americans with Disabilities Act (ADA) – it is broader, covers more medical
conditions, and is not restricted to a condition that substantially limits a major life
activity. Temporary conditions, including pregnancy related disabilities, can be
included under the protections.
This guide will answer questions about the definition of disability, the reasonable
accommodation process, essential functions, undue hardship issues, the hiring
process, guidance for employees with disabilities, and information for places of
public accommodation.
If you need additional information, have additional questions, or wish to have
training for your organization, please contact the WSHRC at 360-753-6770 or 800-
233-3247 (TTY 800-300-7525). Additional information on this and other civil
rights issues can be found on our website at www.hum.wa.gov. This document
does not constitute legal advice; if you have a particular situation about which you
need legal advice, you should contact your attorney.
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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Frequently Asked Questions
General Questions
What is the definition of disability in the state of Washington?
As of July 21, 2007, the definition of disability, found in RCW 49.60.040 is as
follows:
(25) (a) "Disability" means the presence of 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.
(b) 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.
(c) For purposes of this definition, "impairment" includes, but is not limited
to:
(i) 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
(ii) Any mental, developmental, traumatic, or psychological disorder, including but
not limited to cognitive limitation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
Does this definition cover all uses of the word “disability,” including social
services or benefits programs?
No, it only changes the definition for purposes of nondiscrimination.
How does this definition differ from the Americans with Disabilities Act (ADA
or federal) definition?
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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The Washington State definition is broader and covers a greater number of
impairments and medical, mental, or psychological conditions. Temporary
conditions are covered under the Washington State definition. Under the
Washington State definition, there is no requirement that a condition must have an
impact on a major life activity, or that the impact of the condition be substantially
limiting.
What characteristics are not disabilities?
Personality traits such as chronic tardiness or irritability are not in and of
themselves disabilities (although they may be symptoms of disabilities). Physical
traits such as being left handed or being short are not disabilities. (Though there
are medical and genetic conditions that cause extreme short stature that are
disabilities.) A normal pregnancy is not considered to be a disability, although
pregnancy related medical conditions, such as gestational diabetes or hypertension,
can sometimes be disabilities. Discrimination against a pregnant woman is
prohibited under the Washington Law Against Discrimination as sex
discrimination. Pregnancy and maternity discrimination are covered by other
sections of the Washington Law Against Discrimination.
Is drug or alcohol addiction a disability?
The use of illegal drugs is not protected. However if someone is recovering from
drug addiction, they are considered to have a disability. Alcoholics are considered
to have a disability. Behavior standards in the workplace and elsewhere continue
to apply; nondiscrimination law is not an excuse for violent, threatening, or
improper behavior anywhere. Please request the WSHRC’s Questions and
Answers on drug and alcohol addiction issues for more information.
What does it mean to have a “record of” a disability?
This means that the person was previously diagnosed with having a disability, or
that the person has a history of having a disability. An example of this is a person
who had a heart condition, and had open heart surgery, but is currently having no
heart problems. Because of this person’s past medical record of heart problems,
this person is protected under the law.
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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Can a person self-diagnose a disability, that is to say, decide for themselves
that they have a disability?
Generally, a disability should be medically cognizable. Medical diagnosis is one
excellent way of determining this. Some disabilities, such as blindness, deafness,
and paraplegia, are self-evident. Mental, emotional, and psychological disabilities
should always be medically diagnosed by a certified and credentialed mental health
practitioner. In some situations, such as depression, the medical profession has
encouraged general practitioner medical doctors to diagnose and treat the
condition. In almost no circumstances would a herbologist, naturopath, or
accupunturist be able to make an acceptable diagnosis of a mental, emotional, or
psychological condition that would qualify as a disability under the law.
What does it mean to be “regarded as” having a disability?
This means that the person is treated by a covered entity (employer, landlord, place
of public accommodation, etc.) as though the person has a disability even though
the person is not a person with a disability. An example of this may be a police
officer who has gone through a traumatic shooting event, and is then assumed by
her employer to have a psychological disorder, such as post traumatic stress
disorder, due to the shooting, even though the officer does not have a
psychological disorder.
What does it mean to have a “history of” a disability?
This means that in the past the person has been a person with a disability, but that
presently, they may not be a person with a disability, or it may not be apparent that
they are a person with a disability. Again, an example of this is the person who
had a heart condition, and had open heart surgery, but is currently having no heart
problems. Because of this person’s past history of heart problems, this person is
protected under the law.
Is AIDS/HIV a disability?
AIDS and HIV, as well as Hepatitis C, are considered to be disabilities. People
with these conditions are protected under the law. These conditions are covered
further under the Washington Law Against Discrimination, Revised Code of
Washington (RCW) 49.60.172 and 49.60.174.
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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How will the retroactivity section of the 2007 disability legislation affect me?
The 2007 act relating to the definition of disability in the Washington Law Against
Discrimination includes a retroactivity section which reads, “This act is remedial
and retroactive, and applies to all causes of action occurring before July 6, 2006,
and to all causes of action occurring on or after the effective date of this act.” If
you have a case involving a claim of disability discrimination pending with a state
court or had a pending claim at the time of the McClarty decision, you should
consult your attorney for advice. If you had a case involving a claim of disability
discrimination pending before the WSHRC that was closed between July 2006 and
July 2007, your case will be reviewed by the WSHRC to determine if the
retroactivity clause affects your case. If your case was closed solely because of the
McClarty decision and falls within the retroactivity clause, it will be reopened for a
full investigation. You and the other party will be notified if this occurs.
Questions For Employers
What can I do to make sure I am in compliance with the law?
Review all of your equal opportunity, harassment, and reasonable accommodation
policies. Make sure that they are in writing, that they have been provided to all
employees, and that they are followed. Thoroughly familiarize yourself with the
Washington state definition of disability, and ensure that all managers, supervisors
and human resources personnel are aware of the state definition.
How do I determine if an employee has a disability?
This determination must be made on a case-by-case basis. In some cases, the
disability may be obvious, such as a person who uses a wheelchair. In most cases,
the employee will need to inform you of the disability, either verbally or through
doctor’s notes. Remember that the definition of disability includes a person who is
regarded by his or her employer as being disabled. If the person is not actually a
person with a disability, but the employer regards them as having a disability, they
are protected from discrimination under the law. In reasonable accommodation
situations, the employee must self-identify as a person with a disability, and make
the request.
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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Does the law cover harassment by co-workers?
Court cases have determined that harassment in the workplace against a person
with a disability, because of the disability, is prohibited. If the harassment is
offensive and unwelcome, is serious enough to affect the person’s work or create a
hostile working environment, is because of the disability, and if the employer knew
of the harassment or should have known of the harassment and took no or
ineffective action to stop it, then an employer is in violation of the law.
What disabilities need to be reasonably accommodated?
An employer must make reasonable accommodation for an impairment that
substantially limits an employee’s ability to do his or her job, to be considered for
a job, or to have access to equal terms and conditions of the job. An employer
must also make reasonable accommodation for a condition that will likely result in
a substantially limiting impairment if the condition is not reasonably
accommodated. Washington law states:
(d) 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:
(i) 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
(ii) 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.
(e) For purposes of (d) of this subsection, a limitation is not substantial if it has
only a trivial effect.
Generally, disabilities that are perceived only do not need to be accommodated.
What do I need to do when an employee asks for a reasonable
accommodation?
The procedure for reasonable accommodations has remained the same through the
rest of the changes in disability law. In most cases, the person needing the
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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accommodation will request it. This can be verbal, in writing, or in the form of a
doctor’s note. The employer and employee must then enter into an interactive
process, which involves both parties discussing the request and possible
accommodations. The employer can request additional information from the
employee’s doctor or request that the employee get a physical capacities
examination.
Does an employer need to implement the reasonable accommodation that the
employee requests?
Not necessarily. The employer can implement a reasonable accommodation of its
own choosing, as long as there is an interactive process and the reasonable
accommodation works for the employee and is effective.
What are possible reasonable accommodations?
Think creatively, and work together with the employee to come up with a solution
that works for both of you. A reasonable accommodation makes it possible for the
person with a disability to do his or her job. The reasonable accommodation can
be a schedule change, computer hardware or software, ergonomic furniture,
alternate break times, allowing the employee to wear a brace, a stool to sit on, and
more. If there is no solution that allows the employee to work at his or her current
job, the employee must be put into an open position for which they are qualified.
If there are no such positions, a medical leave might be a necessary
accommodation.
What is not considered to be a reasonable accommodation?
Anything that creates an undue hardship for the employer is not considered to be
reasonable. An undue hardship may be created when the requested
accommodation is too costly, or will fundamentally alter the nature of the business.
An undue hardship is determined on a case-by-case basis, in looking at the size and
resources of the employer. The employer must demonstrate that the
accommodation is an undue hardship. In addition, an employer does not need to
accommodate the employee by lowering production standards, hiring an extra
person to help the employee, or removing essential job functions.
What are essential job functions?
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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The essential job functions are the main tasks or duties of a particular position.
These functions are determined by how often they are done, or how fundamental
they are to the position. This does not include job duties that are peripheral to the
main function or only done once in a while. Often, a written job description will
outline what the essential job functions are, but the person in the position will still
have to engage in those duties on a regular basis in order for the duty to be
considered essential.
Who can prescribe work restrictions for an employee?
Anyone who is licensed as a health care provider in Washington can prescribe
work restrictions, as long as their area of practice aligns with the particular medical
condition at issue (for example, it would probably be questionable when a
podiatrist writes restrictions regarding a patient’s heart condition).
Am I required to hire a certain number of persons with a disability?
No, there is no requirement to hire a certain number of persons with a disability.
However, if a person is qualified to do the job, with or without a reasonable
accommodation, and happens to have a disability, they must be considered for the
position, and hired if they meet the merit criteria for the job.
Can I ask about an employee’s medical condition during an interview or on an
application?
You cannot ask about an employee’s medical condition during the hiring process.
This includes questions about medications, past medical history, or past workers
compensation claims. You may ask if the employee is able to perform the essential
functions of the job with or without accommodations.
Can an employer require a physical examination as part of a job application?
An employer can require that an applicant take a physical examination as part of a
hiring process if the physical exam takes place after a conditional offer of
employment. The employer must follow the same procedure and give the same
physical examination to all conditional employees in a particular position. An
employer cannot single out a particular conditional hire for a medical exam.
Can I ask about an employee’s medical condition after they are employed?
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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Generally, it is not permissible to ask questions about an employee’s medical
condition. You want to avoid the appearance of regarding the employee as
disabled. An employer can ask about medical issues if there is a change in work
performance, and if the questions are related to the person’s ability to do the job.
An employer can ask about medical information as part of the interactive process
in a reasonable accommodation situation.
Do I need to allow a service animal at work?
If the animal is trained to provide a disability-related service to a person with a
disability, you need to allow the service animal in the workplace. These animals
are not pets, so a “no pets” policy does not apply. You can refuse to allow the
service animal only if the animal poses an immediate or reasonably foreseeable
risk or danger to people or property. Speculation that the animal poses a risk or
danger is not enough to refuse the animal. A service animal must be trained, and
owners can train their own service animals. Service animals should be under the
control of their owners. Service animals should not create sanitary problems or
make loud noises. There are very specific types of medical and food service
operations where animals can be excluded under certain circumstances. There is
no requirement that the employer provide food, water, or toileting facilities for
service animals. There is further information in the Washington Administrative
Code (WAC) 162-22-100.
If a person requests an animal at work to assist with an emotional or psychological
disability, but the animal is not specifically trained to provide a service for a
disability, the animal is most likely an emotional support animal (other common
terms are comfort animal, companion animal, and therapy animal, though this
latter term most accurately describes an animal which visits hospitals and nursing
homes). Emotional support animals do not meet the definition of service animal.
When a person requests to have an emotional support animal at work, the employer
should enter into a reasonable accommodation interactive process with the
employee to determine the employee’s limitations, reasonable accommodation
needs, and the animal as a reasonable accommodation.
When can I terminate the employment of an employee with a disability?
If the employee is unable to complete the essential functions of his or her job with
or without reasonable accommodation, there are no other open jobs for which the
employee is qualified, and time spent on medical leave will not alleviate the
medical condition, then you may separate the employee, as you would any other
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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employee. You may also apply workplace rules and regulations regarding
production and behavior to employees with disabilities, as long as you consistently
apply the same rules to all employees. However, be aware that a few courts have
held that if the person’s disability is causing a particular behavior that violates a
workplace rule, and the behavior and the disability are linked, then the employee
cannot be terminated for the behavior. This is a difficult situation to analyze, so
consult an attorney for advice, or contact the WSHRC for guidance. No court
decision permits an employee to be violent, to harm others, to steal, to be
insubordinate, or to refuse to follow a lawful order. Also see related guidance on
the Gambini case.
Do I have any other obligations to the employee after I let them go?
If you separated the employee because they were no longer able to complete the
essential functions of the job due to a disability or medical restrictions, then you
have a continuing obligation to inform the employee of job openings for which
they are qualified and which meet their medical needs. The Ninth Circuit Court of
Appeals has determined that reassignment to an open position constitutes a
reasonable accommodation, and that an employer needs to continue to attempt to
reassign an employee to another job for a “reasonable” period. This means that it
is a good idea for employers to be proactive about informing their former
employees of openings, at least for a few months after a disability separation.
Questions for Employees
What protections do I have at work if I am a person with a disability?
You have the right to not be discriminated against. You can request reasonable
accommodations in the job application process. On the job, as long as you are able
to do your job, with or without a reasonable accommodation, you are protected. If
you request a reasonable accommodation in order to do your job, your employer
needs to enter into an interactive process with you to determine a reasonable
accommodation. Your co-workers and managers are prohibited from harassing
you because of your disability.
When do I have to discuss a medical condition with my employer?
When you request a reasonable accommodation for a medical condition, be
prepared to provide medical information. If your work performance has declined
due to a medical reason, your employer may request information about your
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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medical condition as it relates to your ability to do your job. This medical
information is protected by privacy laws.
Should I inform a potential employer about my disability during an
interview?
This is up to you, but you are not required to disclose that you are a person with a
disability. An employer cannot ask about disabilities during an interview or on an
application.
How can I request a reasonable accommodation?
The best way to request a reasonable accommodation is to put the request in
writing, or obtain a note from your doctor stating the request. Present the request
to your manager or to the human resources department. The request must relate to
your disability, must assist you in doing your job, or must lower barriers to your
performance of your job.
What should happen after I request a reasonable accommodation?
You and your employer should enter into an “interactive process” – that is, you
both participate in a discussion about potential accommodations. The employer
may accept the request, might offer other suggestions, or might need further
medical information. You need to be an active participant in the process, and
provide necessary medical information. Do not stop taking part in this process.
Questions Regarding Public Accommodations
How does the Law Against Discrimination affect places of public
accommodation?
Places of public accommodation must be accessible for all persons who meet the
new definition of disability, not just to persons who meet the ADA definition of
disability. There are special rules about architectural accessibility. For further
information, consult the Washington State Building Code at WAC 51-40, WAC
38-97-410, RCW 35.68.075, the Americans with Disabilities Act at 42 U.S.C.
12101 et. seq., and the Federal Fair Housing Act at 42 U.S.C. 3601 et.seq. You do
not need to provide personal attendant or medical services, unless you are in the
medical services field.
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
Page 13 of 15
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How do I determine if a person has a disability?
The disability may be obvious, such as a person who uses a wheelchair. In other
cases a person using a public accommodation may need to inform you of the
disability so that you can make the place of public accommodation accessible for
that person.
Is a place of public accommodation required to make reasonable
accommodation to persons with a disability?
It is an unfair practice for a public accommodation to fail or refuse to make
reasonable accommodation for a known disability. Reasonable accommodations
might include the use of a freight elevator if that is the only available elevator;
bringing information, services, or merchandise to a patron; providing a sign
language interpreter; or installing grab bars in restrooms. Note that services
provided are only required to be equally effective to those provided to people
without disabilities.
When is an accommodation not considered to be reasonable?
An accommodation is not considered to be reasonable when the cost or difficulty
in providing the accommodation is prohibitive to the providing entity. The size of
the place of public accommodation, the availability of staff, the organization’s total
budget, and the resources available are considered when determining
reasonableness.
What if a person has a dog or other animal with them?
A service animal is an animal that is trained for the purpose of assisting a person
with a disability. You may ask the person if the animal is a service animal, and
what service the animal provides. If the animal is a service animal, you cannot ask
for proof or ask about the person’s disability. The animal does not need to wear a
vest or special tags. You must allow service animals into any parts of the premises
that are available to members of the public. This includes dining areas, restroom
areas, and areas in which foods are sold. Service animals are not considered to be
pets, so a “no pets” policy does not apply. The service animal will often be a dog,
but can also be another kind of animal. You can refuse to allow the service animal
only if the animal poses an immediate or reasonably foreseeable risk or danger to
people or property. Speculation that the animal poses a risk is not enough to refuse
the animal. You can find more information in Washington Administrative Code
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Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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(WAC) 162-26-130 and 162-26-135. See also information on services animals
elsewhere in this document.
What does it mean when an animal is a “trained” service animal?
The animal is trained to assist the person with a disability in a way connected to
the disability. This could be a miniature horse which guides a blind person, a small
dog which makes its owner aware of a pending seizure, or a dog that retrieves and
carries items and performs tasks for a mobility impaired person. The animal does
need training, but the training does not need to be formal and the animal does not
need to be certified. Generally, use of a service animal, especially those that
provide unusual services, should not be self-prescribed. Animals in-training are
not covered.
What if a building is not physically accessible?
If a building is old and has not been recently remodeled, it may be “grandfathered
in” under the building code, meaning that the building does not need to meet
current accessibility requirements. Newer construction, or buildings that have
undergone a major remodel recently, need to meet current accessibility standards.
If you suspect that a building should meet accessibility standards but does not, you
may contact the WSHRC for guidance. There are special rules about architectural
accessibility. For further information, consult the Washington State Building Code
at WAC 51-40, WAC 38-97-410, RCW 35.68.075, the Americans with Disabilities
Act at 42 U.S.C. 12101 et. seq., and the Federal Fair Housing Act at 42 U.S.C.
3601 et.seq.
Additional Resources Include:
Equal Employment Opportunity Commission (206) 220-6883 (800) 435-7232
Governor’s Committee on Disability Issues and Employment (360) 438-3168
Department of Justice (ADA issues) (202) 514-0301
Job Accommodation Network (800)232-9675
Laura Lindstrand
Washington State Human Rights Commission
Disability Guide
2007/updated 2012
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