The Ninth Circuit Court of Appeals earlier this week certified a question to the Washington Supreme Court, seeking that court’s help in defining "disability" under the Washington Law Against Discrimination (WLAD). 

Two years ago, in McClarty v. Totem Electric, 137 P.3d 844 (2006), the Washington Supreme Court significantly narrowed the definition of "disability" under the WLAD.  In 2007, the Washington Legislature passed a law codifying the broader, pre-McClarty definition of disability, and explicitly stated that definition would apply retroactively.   

This week, in Moore v. King County, the Ninth Circuit certified to the Washington Supreme Court the question of whether the retroactive application of the 2007 law is lawful under the separation of powers doctrine in the Washington Constitution, where the cause of action arose prior to the McClarty decision. 

This case is of interest to Washington employers with pending disability claims under the WLAD.  It will be a significant win for Washington employers if the Washington Supreme Court answers that the retroactive application is unlawful, as any WLAD disability cases arising before July 6, 2007 (the effective date of the new definition of "disability"), will be decided under the narrower McClarty definition of disability.