WPI 330.33 Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden ...

Use this instruction with WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability). This instruction is designed to be used together with WPI 330.34 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definition) and WPI 330.37 (Employment Discrimination—Essential Function—Definition) or, alternatively, WPI 330.36 (Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof).

An essential functions instruction may be appropriate depending on the facts and circumstances of the particular case. When there is a disagreement as to the essential functions of the position, use WPI 330.37 (Employment Discrimination—Essential Function—Definition).

This instruction may need to be modified for cases involving medical necessity. See discussion in the Comment below.

In 2007, the Legislature adopted new definitions of disability and impairment in an accommodation analysis. RCW 49.60.040(7). See discussion in the Comment to WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof).

For purposes of an accommodation analysis, “a limitation is not substantial if it has only a trivial effect.” RCW 49.60.040(7)(e).

When duty to accommodate arises. Pursuant to RCW 49.60.040(7)(d), the duty to accommodate arises in two general circumstances: (1) when the impairment has a substantially limiting effect on the employee's ability to perform the duties of the position or affect other aspects of his/her employment opportunities; or (2) when there is medical evidence that failure to accommodate a known impairment will aggravate the impairment, limiting the employee's ability to perform the job or affect other aspects of his/her employment opportunities. See Johnson v. Chevron U.S.A., Inc., 159 Wn.App. 18, 30, 244 P.3d 438 (2010):

In impairment cases, the Legislature clarified that 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 for or be considered for a position, or the individual's access to equal benefits, privileges, or terms or conditions of employment. RCW 49.60.040(7)(d)(i). In the aggravation of impairment cases, the employee must notify the employer of the impairment, and provide medical documentation that establishes a reasonable likelihood that engaging in the employee's job function without an accommodation “would aggravate the impairment to the extent, that it would create a substantially limiting effect.” RCW 49.60.040(7)(d)(ii).

The duty of reasonable accommodation does not arise until the employer is “aware of respondent's disability and physical limitations.” Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 391, 583 P.2d 621 (1978)). If the disability is not otherwise known to the employer, the employee must give the employer notice of the disability; the employer then must take “‘positive steps’ to accommodate the employee's limitations.” Goodman, 127 Wn.2d at 408. Once notice is given, the employer has a duty to inquire regarding the nature and extent of the disability, while the employee has a duty to cooperate with the employer's efforts by explaining the employee's disability and qualifications. Goodman, 127 Wn.2d at 408–09; Hume v. Am. Disposal Co., 124 Wn.2d 656, 880 P.2d 988 (1994).

If there is a factual question whether the parties cooperated in the reasonable accommodation process, Washington law is unclear how non-cooperation impacts the burden of proof. See Comment to WPI 330.34 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definition).

Damages. In Martini v. Boeing, 137 Wn.2d 357, 367, 971 P.2d 45 (1999), the Washington Supreme Court held that an employee who resigned because of a failure to accommodate a disability was not required to prove constructive discharge before being entitled to damages under RCW 49.60.030(2). A plaintiff bringing a claim under RCW Chapter 49.60 need only establish that the damages were proximately caused by the discrimination. Martini, 137 Wn.2d at 368.