ENVOY ON-LINE

The Newsletter of the Washington Protection & Advocacy System

Fall 2006

Contents:

State Supreme Court Weakens
Anti-Discrimination Law

WPAS, Human Rights Commission, Others ask for Reconsideration

 By Phil Jordan
September 15, 2006

The Washington State Supreme Court has issued a decision with serious implications for many people with disabilities.  In the case of McClarty v Totem Electric, the Court abruptly eliminated protection from discrimination for thousands of people with disabilities.

Several organizations have filed motions with the Court asking them to reconsider their decision.

At Issue – the Definition of a Disability in Washington State

The Court chose to discard the definition of disability that has been used for decades in Washington state, and replace it with the federal definition that is used in the Americans with Disabilities Act (ADA).  The differences between the two definitions are significant. 

The ADA definition states that a person has a disability if they have “a physical or mental impairment that substantially limits one or more of his major life activities.” 

Since 1973, Washington has had its own Law Against Discrimination (WLAD).  The regulation that defined disability for this law intentionally provided greater protection for people with disabilities.  It states that a person has a disability (and therefore is given protection by the law) if they have any “sensory, mental or physical condition that is medically . . . diagnosable,” or “exists as a record of history.” 

The most important difference between the two definitions is the phrase in the ADA that requires a disability to “substantially limit” a person’s major life activities. 

The Court’s adoption of the ADA definition means that if a person has an “impairment” that can be controlled or made better with medication or an accommodation, that person is not likely to be protected by the state law against discrimination. 

For example, a person with a mental illness whose condition is managed by taking medication may no longer be protected from being fired from their job because of their illness. 

Many people with epilepsy, depression, diabetes, heart conditions, post traumatic stress disorder, hypertension, and a wide range of other conditions may no longer enjoy the protections of the WLAD due to the Court’s decision.

Advocates Ask for Reconsideration

WPAS, the Human Rights Commission and other organizations are taking action to try to reverse this damaging decision.  These organizations have asked the Court to reconsider its ruling. 

The Human Rights Commission filed a motion with the Court and pointed out that the State Legislature intended the WLAD to be more comprehensive than the ADA.  By adopting the ADA definition of disability, the Court ignored the intent of the Legislature and its desire to protect everyone with a disability from discrimination. 

This argument is persuasive because it is the Legislature’s job to make laws, and it is the Court’s job to interpret those laws.  The Human Rights Commission is suggesting that the Court has overstepped its authority by ignoring the intent of the Legislature. 

WPAS and other advocates also filed motions with the Court.  In a brief presented to the Court in August, WPAS noted that people with disabilities face discrimination in a variety of ways.  WPAS argued that people with disabilities have been “subjected to a long history of pervasive discrimination in all aspects of society, including . . . housing, education, and employment.” 

WPAS, in its brief, also informed the Court of the serious effect that the decision will have on many people with mental disabilities.  “Employers can now freely deny such individuals employment or fire them from their existing jobs” if they think that the “employees’ mental illnesses makes them ‘strange’ or somehow undesirable as employees.” 

Other advocates voiced serious concerns about protections for people with mental illness.  Frank Jose is the Executive Director of the Greater Seattle chapter of the National Alliance on Mental Illness.  He also felt it was important to ask the Court to reverse their decision.  Jose noted that under the ADA definition, many people will have accommodations denied them.  He supports the broader, WLAD definition because it helps “build a recovery-based mental health system where people with serious mental illness . . . [are] not undermined by discrimination.” 

Next Steps

It is now up to the Court to decide whether or not to reconsider its position.  Advocates are hopeful, but not necessarily optimistic.  The Court does not have to reconsider its decision, and even if it does, it can take as long as it wants to reach a decision. 

If the Court does not reconsider, there are other options open to advocates.  Because the ruling changes the purpose the Legislature intended for the WLAD, it may become necessary for lawmakers to explicitly state that the law is to be interpreted more broadly than the ADA. 

Several Legislators have already expressed a willingness to work on this issue. 

Want to learn more about McClarty v. Totem Electric?  Below are some of the legal papers filed regarding the case:

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Accessible Voting:
The Cowlitz County Story

by Phil Jordan
September 25, 2006

Sunnie Smith is smiling.  She knows a lot of people who are going to be able to vote without assistance for the very first time in their lives, and she is a big part of making it happen. 

Sunnie runs the Cowlitz County office of disAbility Resources of Southwest Washington.  She has been appointed to the Cowlitz County advisory board that makes recommendations about how elections can be more accessible for people with disabilities.  The board has a big job, because lately, there have been many changes in how elections are being conducted. 

One of the biggest changes is that  there are new voting machines.  These new machines allow people to vote independently, even if the person has trouble reading or seeing a regular ballot or if they are unable to fill out a paper ballot.  The machines also have detailed, on-screen instructions which can be helpful for people who are deaf or have hearing loss.

The machines can really help make voting more accessible, but Sunnie was concerned that not enough people with disabilities would know that they were available.  If nobody knew about them, people would miss out on one of the best things about living in a democracy - making up your own mind and voting for the candidate of your choice. 

Sunnie urged the advisory committee to make outreach a priority, and the rest of the committee agreed.  The Cowlitz County election official, Sharon Weinhold, was extremely helpful.  She sent flyers describing the new machine to every social service agency in the county.  She also thought of some very creative ways to do outreach.  The elections office had the machine available at the County Fair so anyone could practice voting.  Even better, machine was actually used at the fair!  Children were allowed to vote for their choice for County Fair mascot.  This created a lot of positive community feeling about the machines and accessible elections.   

There were other imaginative outreach efforts.  Sunnie and another advisory board member, Maurine Coon, each wrote letters to the editor of the local newspaper and both were published.  Flyers were placed on buses and connections were made with organizations that have contact with people with disabilities. 

The election staff and the advisory board are both trying to think of other ways to bring accessible voting to the people of Cowlitz County.  Many people with disabilities live in rural areas of the county, or in small towns like Castle Rock, Woodland or Toutle.  For these people, transportation is a major barrier to voting. 

Fortunately, the County election staff and the advisory board members are committed to finding answers to problems like this.  Other places around the country have created voting centers in centralized places like malls and town centers.  Others have begun to take voting machines around the area by van; bringing the voting machine to the people, instead of the other way around.

Looking at the experience of Cowlitz County, it is easy to have hope for the future.  Working together with mutual respect, people with disabilities and county officials are finding ways to make voting more accessible.  If accessible voting is important to you, there is something you can do.  Every county in Washington state is supposed to have an advisory board like the one in Cowlitz County.  Call your county elections office and tell them you are interested in being on their accessible voting advisory board.

Want to know more about disAbility Resources of Southwest Washington?  Check out their website at:
<http://www.darsw.com/>

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WPAS has entered into an agreement that would settle a lawsuit called Boyle v Arnold-Williams.  The Boyle lawsuit was filed in November of 2001. Before the Boyle lawsuit was filed, clients of the Division of Developmental Disabilities (DDD) were incurring a number of problems in receiving their Medicaid Home and Community Based Services (HCBS).  For example, one problem was that many DDD clients receiving waiver services also were not getting services in a timely fashion once they requested them and DDD had authorized them.  Many DDD clients were also not getting adequate assessments of their needs and/or not having their needs addressed in their individual support plans.  In addition, DDD clients receiving Medicaid waiver services were not being provided the full range of services offered under the waiver on which they were placed.

Several years ago, DDD went from having one Medicaid HCBS waiver to four different HCBS waivers.  The four new waivers were: 1) the Basic waiver; 2) the Basic Plus waiver; 3) the Core waiver; and 4) the Community Protection waiver.  When DDD went from the CAP waiver to the 4 waivers, many people were placed on one of the four waivers without proper assessments of their needs to determine upon which waiver they should be placed. They were also not given an opportunity to appeal their placement on one of the four waivers.

These are just some of the many issues that led to the filing of the Boyle lawsuit.  The proposed settlement, if approved by the court will address all of these and other issues raised in the case. Among other things, the Proposed Settlement Agreement will help to make sure that DDD clients who are currently on one of the waivers or receive waiver services, get proper assessment of their service need and get their services on time. The settlement will also make sure that DDD notifies people properly of their appeal rights. For a detailed description of how these issues will be addressed by the proposed settlement, please see the Boyle Proposed Settlement Agreement information,  which is one of the links, below.

Want to know more about the Boyle lawsuit?  Try these links:

WPAS to Assist Human Rights Commission with Public Forum

The Washington State Human Rights Commission has asked WPAS to assist with a public forum to be held on November 16.  The forum will consist of a panel discussing  the implications of the Supreme Court decision in McClarty v Totem Electric (see feature article, above), followed by public comment.  The decision narrows the scope of Washington State's Law Against Discrimination (WLAD). 

The forum will be held from 7:00 to 9:00 pm on the evening of November 16.  It will be held at the SeaTac Radisson Hotel located at  at 18118 International Blvd in SeaTac, across the street from the SeaTac International Airport. 

The Human Rights Commission plans to have Legislators, advocates and experts on the WLAD talk at the forum, but the most important people present will be the general public.  Since the Supreme Court's decision, there has been a groundswell of disappointment and opposition. 

When the Legislature passed the WLAD, they clearly intended the law to protect all people with disabilities from discrimination.  Many Legislators are already talking about new legislation that would reinforce their meaning, and essentially negate the harmful effects of the McClarty decision. 

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 P&A  Q&A - Answers to Questions People Ask WPAS

 Options for People who Experience Employment Discrimination

Date:  for the Fall 2006 edition of Envoy On-Line
Prepared by:  Elizabeth Baldwin

My employer discriminated against me because I have a disability.  What can I do?  Are there deadlines for filing complaints?

If you think you have been discriminated against because of a disability, there are several things you can do.  You can:   

(1) Try to work out the problem with your employer informally.  You might try arranging a meeting with your supervisor or employer to confront him or her about the treatment that you feel was discriminatory. Or you might try writing your employer a letter alerting him or her to the discrimination you feel you experienced.  If you choose to write a letter, then keep a copy for your own records.  This way both you and your employer have proof that you had communication about the incident.

(2) Find out if your employer has an internal discrimination complaint process.  If s/he does, then you may file an internal complaint.  If your employer provides employees with an employee handbook, the handbook might be the best place to discover whether or not there is a complaint process.  Otherwise, you can ask your supervisor or your employer if there is a policy or procedure you should follow.

(3) File a complaint with the Washington State Human Rights Commission.  To file your complaint, contact your local Human Rights Commission office (the phone numbers are listed below) and ask to speak with an “intake coordinator.”  The intake coordinator will ask you questions about your situation to decide whether to send you a complaint form. 

Note: You must have your Human Rights Commission complaint form “notarized,” and your complaint form must be filed with the Human Rights Commission within 180 days of the discriminatory act described in your complaint.

(4) File a complaint with the U.S. Equal Employment Opportunity Commission (EEOC).  You must file your complaint with the EEOC within 180 days of the time you were discriminated against.  To file a complaint, contact the EEOC at 1-800-669-4000 (voice) or 1-800-669-6820 (TDD).

Note:  If you filed a complaint with the Human Rights Commission (see number 3, above), you must file your EEOC complaint no more than 30 days after the Human Rights Commission notifies you that their complaint process is completed. 

(5) File a complaint with your city or county civil rights enforcement agency.  Some cities and counties have their own ordinances that prohibit discrimination, and have their own civil rights agencies.  Some of these agencies are listed below.  To find out if your city or county has an enforcement agency, contact your city or county.

I don’t want to go through the administrative process.  I just want to sue my employer for violating the ADA right now.  Can I do that?

No.  In order to file a lawsuit under the ADA, you must first go through the EEOC complaint process and obtain a “Right to Sue” letter from the EEOC.  However, you can file a lawsuit in state court under the Washington’s’ law against discrimination without filing a complaint with the Human Rights Commission.  It is a good idea to consult with an attorney before deciding to file a lawsuit. 

I am a federal employee.  Are there special rules governing employment discrimination complaints by federal employees?

Yes.   If you believe that you have been discriminated against by a federal agency, you have the right to file a complaint with that agency.

First, you need to contact an “EEO Counselor” at the agency within 45 days of the discriminatory action.  You may choose to participate in either counseling, or in Alternative Dispute Resolution (ADR) when the agency offers ADR.  Usually, counseling must be completed within 30 days and ADR within 90 days of the incident.  At the end of counseling, or if ADR is unsuccessful, the individual may then file a complaint with the agency.

The agency must do an investigation of the complaint, unless the complaint is dismissed.  Once the agency finishes its investigation, you may request a hearing before an EEO administrative judge or an immediate final decision from the agency. 

If you are dissatisfied with the outcome of the agency’s complaint resolution process, you can appeal the agency’s decision to the EEOC.  Appeals to EEOC must be filed within 30 days of when the employee received notice of the agency’s final action.

Where can I find more information about employment discrimination complaints?

This publication is an information service of the Washington Protection & Advocacy System (WPAS).   It provides general information as a public service only, and is not legal advice.  If you need legal advice, you should contact an attorney.  You do not have an attorney-client relationship with WPAS.  If you would like more information about this topic, call (800) 562-2702 (voice) or (800) 905-0209 (TTY).

To receive this publication in an alternative format, such as large print or Braille, please call Washington Protection & Advocacy System (WPAS) at 1-800-562-2702.

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Washington Protection & Advocacy System
315 - Fifth Avenue South, Suite 850
Seattle, WA     98104
*Phone: (206) 324-1521 or in Washington State: (800) 562-2702
TTY:  (206) 957-0728 or in Washington State: (800) 905-0209
Fax: (206) 957-0729
*Interpreters Available in over 200 languages via AT&T Language Line
E-mail: wpas@wpas-rights.org
URL: http://www.wpas-rights.org

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Envoy On-Line Credits

Editor and Webmaster: Phil Jordan

Contributing Editors: Andrea Abrahamson, Betty Schwieterman, David Lord, David Carlson, Debbie Dorfman, Mark Stroh

Envoy On-Line is the newsletter of the Washington Protection and Advocacy System (WPAS), a private, non-profit agency that has been protecting the rights of people with disabilities since 1972. WPAS is a member of the National Disability Rights Network.  Eligibility for WPAS services is determined by federal law. Contact WPAS if you would like more information about our current priorities and available services.

Envoy On-Line is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may only be given in response to inquiries regarding particular factual situations.

Envoy On-Line is available at no charge to interested persons in Washington and is available in alternative formats upon request. To add your name to the ENVOY mailing list, call or write:

Washington Protection and Advocacy System
315 - Fifth Avenue South, Suite 850
Seattle, WA     98104
Phone: (800) 562-2702 or (206) 324-1521
TTY: (800) 905-0209 or (206) 957-0728
Fax: (206) 957-0729
E-mail: webmaster@wpas-rights.org

Do you have feedback, questions or an opinion about one of the stories in Envoy On-Line?  Email Us.

Interested in past issues of Envoy On-Line?  You can find them in the Envoy On-Line Archives. 

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Washington Protection & Advocacy System
315 - Fifth Avenue South, Suite 850
Seattle, WA     98104
*Phone: (206) 324-1521 or in Washington State: (800) 562-2702
TTY:  (206) 957-0728 or in Washington State: (800) 905-0209
Fax: (206) 957-0729
*Interpreters Available in over 200 languages via AT&T Language Line
E-mail: wpas@wpas-rights.org
URL: http://www.wpas-rights.org