Walt Auvil, Esq.                                                            Bryan R. Cokeley, Esq.
Pyles and Auvil                                                             Sandra K. Wilson, Esq.
Parkersburg, West Virginia                                           Steptoe & Johnson
Attorney for Appellee                                                   Charleston, West Virginia
                                                                                    Attorneys for Appellants

Ricklin Brown, Esq.                                                    Steven L. Thomas, Esq.
Bowles, Rice, McDavid, Graff & Love                        Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia                                            Charleston, West Virginia
Attorney for Amicus Curiae West Virginia                  Attorney for Amicus Curiae
Chamber of Commerce                                               West Virginia Hospital Association

JUSTICE STARCHER delivered the Opinion of the Court.

JUSTICE McGRAW concurs in part and dissents in part, and reserves the right to file a separate opinion.

JUSTICE SCOTT concurs and reserves the right to file a concurring opinion.

        This is an appeal from a circuit court's order entering judgment on a jury's finding that a hospital had committed disability discrimination against an ambulance paramedic employee of the hospital. We conclude that the jury was not properly instructed, and also that the plaintiff did not present a sufficient evidentiary case to prove disability discrimination. We reverse the circuit court's judgment order.

         The Hospital also argued that it did no harm to Mr. Stone in the job reassignment, because he was paid at his regular rate and because he was reinstated to his ambulance paramedic position without any detriment.

        At trial, the jury found for Mr. Stone, and awarded him damages of $2,125.44. The circuit court entered judgment on this verdict. It is from this judgment order that the Hospital appeals.
    

states in pertinent part:

         After commencement of employee's employment duties, an employer shall not require a medical examination and shall not make inquiries of an employee as to whether such employee has a disability or as to the nature and severity of the disability, unless:

        5.5.1. Such examination or inquiry is shown to be job related and consistent with business necessity . . . . See footnote 9 ⁹

        Thus, based on the clear language from the regulations that implement the Act, the West Virginia Human Rights Act, W.Va. Code, 5-11-9 [1998], requires that after commencement of an employee's employment duties, an employer shall not require an employee to submit to any medical examination, excepting tests for illegal drugs and voluntary examinations including histories which are part of an employee health program available to employees at that work site; and an employer shall not make inquiries of an employee as to whether such employee has a disability or as to the nature and severity of the disability -- unless such examination or inquiry is job-related and consistent with business necessity.

        This Court has recognized the right of an employer to protect employees, the public, and the workplace from danger or injury that might occur as a result of a person's possible impairments, when such protection is done in a fashion that is consistent with the duty of reasonable accommodation. We stated in Syllabus Points 2 and 3 of Davidson v. Shoney's Big Boy Restaurant, 181 W.Va. 65, 380 S.E.2d 232 (1989):

         2. In deciding whether an employee poses a risk to her personal safety [so as to permit an adverse employment action regarding a person with a disability based on such a risk], the employer must show a reasonable probability of a materially enhanced risk of substantial harm to the employee based on a consideration of the job requirements in light of the employee's handicap, and the employee's work and medical history.

         3. As a general rule, to satisfy the standard of a serious threat to one's health or safety, the employer must establish that it relied upon competent medical advice that there exists a reasonably probable risk of serious harm.

        Based on the right and duty of an employer to establish and maintain both a safe and non-discriminatory workplace, it seems clear to us that an employer may require an employee to work under temporary precautionary employment conditions and limitations, such as a “light duty” assignment, pending the results of an otherwise permissible inquiry or medical examination and employer assessment, if such temporary precautionary conditions are job-related, consistent with business necessity, and in compliance with the duty of reasonable accommodation.See footnote 10 ¹⁰

        Thus, under the West Virginia Human Rights Act, W.Va. Code, 5-11-9 [1998], when undertaken in a good-faith fashion that is consistent with the duty of reasonable accommodation,See footnote 11 ¹¹ the use of a light duty program or assignment does not establish disability discrimination, and the mere fact that an employer places an employee on light duty does not prove disability discrimination.

        Based on the foregoing reasoning, the instructional language proposed by the Hospital in the instant case, regarding when a medical examination can be required, was both an accurate statement of the law and directly pertinent to the Hospital's defense -- because the proposed language told the jury not to draw any adverse inference or conclusion of disability discrimination from the mere fact that the Hospital had required Mr. Stone to have an independent medical examination.

        The instructional language proposed by the Hospital stating that the mere fact of placing an employee on light duty does not prove a disability discrimination claim is of the same character as the medical examination language, because it correctly told the jury not to draw an adverse inference or conclusion of disability discrimination from an occurrence that was not in itself illegal.

        Based on the foregoing, we agree with the Hospital that the circuit court erroneously gave a charge that did not include correct statements of the applicable law regarding medical examinations and “light duty.” Because of this error, the Hospital would be at a minimum entitled to a new trial.

        The Hospital claims that Mr. Stone could not invoke the protection of our Human Rights Act's prohibition against disability discrimination because he did not provide evidence that would allow a jury to conclude that he fit within the statute's threshold “protected person” definitional requirement -- of being a “person with a disability.”

        In Syllabus Point 2 of Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996), we stated:

         To state a claim for breach of the duty of reasonable accommodation under the West Virginia Human Rights Act, W.Va. Code, 5-11-9 (1992), a plaintiff must allege the following elements: (1) The plaintiff is a qualified person with a disability; (2) the employer was aware of the plaintiff's disability; (3) the plaintiff required an accommodation in order to perform the essential functions of a job; (4) a reasonable accommodation existed that met the plaintiff's needs; (5) the employer knew or should have known of the plaintiff's need and of the accommodation; and (6) the employer failed to provide the accommodation.

(Emphasis added.)

        Thus, to have the status of being a “protected person” who can assert a claim for disability discrimination, a person must show that he is “a disabled person [or “person with a disability”] within the meaning of the law.” Skaggs v. Elk Run Coal Company, 198 W.Va. 51, 71 n.22, 479 S.E.2d 561, 581 n.22 (1996).

        Prior to 1989, our Human Rights Act statute prohibited employment discrimination against an “individual [who] is handicapped;” “handicap” was defined as “any physical or mental impairment which substantially limits one or more of an individual's major life activities.” W.Va. Code, 5-11-3 and -9 [1981].See footnote 12 ¹²

        Based on this definitional language, in Chico Dairy Co. v. W. Va. Human Rights Comm'n, 181 W.Va. 238, 382 S.E.2d 75 (1989), we held that the Human Rights Commission did not have statutory authority to issue regulations that would give “protected person” status to bring a disability discrimination claim -- not only to persons with actual substantially limiting impairments (“actual disability” claims)See footnote 13 ¹³ -- but also to persons who did not actually have significantly limiting impairments, but who were regarded, perceived, or treated as having a disability (“regarded-as” claims).

        In 1989, the definition of “disability” was amended by our Legislature to expand protected status to make a disability discrimination claim under our Human Rights Act to include not only persons who actually have substantially limiting impairments, but also to persons who have a record of such impairments or who are “regarded as” having such impairments. W.Va. Code, 5-11-3(m) [1998]. See footnote 14 ¹⁴

        The regulations implementing the Human Rights Act, W.Va. Code of State Regulations 77-1-2.8 [1994] further delineate the definition of “regarded as having an impairment” as meaning:

         1. Has a physical or mental impairment that does not sub- stantially limit major life activities but is treated by another as being such a limitation;
         2. Has a physical or mental impairment that substantially limits major life activities, only as a result of the attitudes of others toward such an impairment; or,
         3. Has none of the impairments defined above but is treated by another as having such an impairment.

(Emphasis added.)        

        This new statutory and regulatory language provides a broader definition -- defining who may have protected status as a “person with a disability within the meaning of the law” who can assert a disability discrimination claim -- than the pre-1989 law did, including for the first time explicit protection for persons with “regarded-as” disabilities. See Fourco Glass Co. v. W.Va. Human Rights Comm'n, 181 W.Va. 432, 383 S.E.2d 64 (1989).

        Since 1989, then, under our Human Rights Act, W.Va. Code, 5-11-1 et seq., a “person with a disability” within the meaning of the law is a person who has one or more physical or mental impairments that substantially limits one or more major life activities; a person who has one or more physical or mental impairments that does not substantially limit one or more major life activities, but that is treated by others as being such a limitation; a person who has one or more physical or mental impairments that substantially limits major life activities only as a result of the attitudes of others toward such impairment; and a person who has no such impairments, but who is treated by others as having such impairments. W.Va. C.S.R. 77-1-2.8 [1994].

        Applying the broader post-1989 definition, in St. Peter v. Ampak-Division of Gatewood Products, Inc., 199 W.Va. 365, 484 S.E.2d 481 (1997) (per curiam), we rejected the argument that an employee who had injured his shoulder and needed to work a limited schedule because he would need physical therapy was not a protected person under the Human Rights Act, because he was allegedly not “actually limited” in a major life activity. Noting that the 1989 statute was “meant to change the law,” we held that the employee, who was fired after his employer said that he was “half a man,” could invoke the protection of the Human Rights Act with a “regarded as” disabled claim, without proving that he actually had a substantially limiting impairment. 199 W.Va. at 370, 484 S.E.2d at 486.

         Thus, West Virginia law, in terms of whether a person is a “person with a disability within the meaning of the law,” Skaggs, supra, 198 W.Va. at 71 n.22, 479 S.E.2d at 581 n.22, who has standing to assert a claim under the protection of our disability discrimination law, has gone from a narrower definition to a broader definition. And under both definitions, whether a person is a “person with a disability within the meaning of the law” is ordinarily an issue of fact for a properly instructed jury or other fact-finder applying the appropriate definitional test set forth in the statute and implementing regulations. Strawderman v. Creative Label Co., Inc., 203 W.Va. 428, 508 S.E.2d 365 (1998) (per curiam) (under post-1989 law whether a person with a migraine had an impairment that qualifies as an actual disability was to be determined by the trier of fact); Teets v. Eastern Associated Coal Corp., Federal No. 2, 187 W.Va. 663, 421 S.E.2d 46 (1992) (per curiam) (under pre-1989-law it was a jury question whether a woman's impairments substantially limited her in her employment.) See also cases cited supra at note 13.

        However, in recent years a number of commentators on disability discrimination jurisprudence in the federal court arena have noted the development of a “startlingly diverse” body of federal case law, particularly in the “protected person” or standing area. See footnote 16 ¹⁶

        Because the Hospital cites us to several federal disability discrimination cases in support of its argument that Mr. Stone did not as a matter of law submit sufficient evidence to permit a jury to find that he had standing or protected status as a “person with a disability within the meaning of the law” so as to claim the protection of our Human Rights Act -- and because our cases to date have looked at federal case law in the disability discrimination area in only a brief fashion -- we direct our attention at this juncture to the question of who can make a claim of disability discrimination as that question has been addressed under federal law -- in light of the Hospital's argument.

        The Hospital argues that under the holdings of several federal cases, many of which have their origin in Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986), Mr. Stone does not have protected status to make a claim of disability discrimination because, says the Hospital, Mr. Stone merely showed that he was excluded from “only one job,” and not from a “broad class of jobs.” In other words, the Hospital argues that Mr. Stone did not as a matter of law present enough evidence for a jury to find that he was perceived or treated by the Hospital as having an impairment that would, as perceived, substantially limit his life activity of working.

        In Forrisi, the plaintiff, a utility repairman, had told his employer that he was afraid of heights, and so he was discharged -- because he could not do utility repairs at a certain altitude due to that fear of heights. The court held that Mr. Forrisi could not invoke the disability discrimination laws -- not even the “regarded as disabled” protection -- because he was seen by his employer as being “unsuited for one position in one plant -- and nothing more.” 794 F.2d at 935. The court noted that his employer “never doubted Forrisi's ability to work in his chosen occupation[.]” See footnote 17 ¹⁷ Id.

        The “exclusion-from-only-one-job” rationale that the Forrisi court relied upon to say that the plaintiff in that case could not as a matter of law establish threshold protected status under federal disability discrimination law has been relied upon in some federal cases to deny threshold protected status as a matter of law to a range of persons with fairly substantial impairments.See footnote 18 ¹⁸

        In this regard, it should be remembered that if a person is prohibited from establishing threshold “protected status” as a person with a disability within the meaning of the law, an employer may inflict any sort of (otherwise legal) discriminatory conditions or acts on the person -- no matter how unfair, arbitrary, stereotyped, bigoted, or unrelated to business necessity that those acts or conditions may be -- and the person will have no standing to complain of or remedy the discrimination. And it should also be remembered that establishing the “protected person” status of being a “person with a disability within the meaning of the law,” who has standing to make a claim, in no way guarantees that a claim of disability discrimination will succeed. All other elements of a claim, such as a discriminatory adverse employment action, qualification to do the job, lack of reasonable accommodation, etc., must be shown before a person is entitled to any relief.

        An example of how this “only-one-job” approach has been relied upon in some federal cases to deny persons as a matter of law the right to present a disability discrimination claim to a court is Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993).

        In Chandler, city policy excluded insulin-dependent diabetics and a large class of persons with various vision impairments (that were corrected with glasses), per se, from city driving jobs. The 5th Circuit held that as a matter of law the plaintiffs were unable to challenge these blanket policies as unfairly discriminatory -- because the court held that “driving” was a single job function. The court held that no finder of fact could permissibly conclude that the plaintiffs were regarded as being substantially limited in their major life activity of working, by being treated as being unable to drive safely.

        In another example of this restrictive approach, Bridges v. City of Bossier, 92 F.3d 329 (5th Cir. 1996), a fire department applicant with a mild form of hemophilia (also an EMT in the National Guard) was denied employment. The appeals court held that he did not have standing to bring a disability discrimination claim -- because the court believed that as a matter of law, exclusion from firefighting, EMT, and paramedic jobs was not a substantial limitation of the major life activity of working. See footnote 19 ¹⁹

        As we have noted, the commentators on federal jurisprudence in the disability discrimination area have noted a state of “turmoil and diversity.” See note 17, supra. In contrast to the approach taken in the foregoing federal cases -- the approach that the Hospital argues that we should take -- in a number of other federal cases, a person was able to go before a finder of fact to show that by being excluded from a particular job they had been regarded, perceived or treated as a person with a substantially limiting impairment -- so as to be able to go before a jury with their claim of disability discrimination.

        For example, in Cook v. State of Rhode Island, 10 F.3d 17 (1st Cir. 1993), the appellate court considered a claim by an employer that the plaintiff, who had prevailed in a jury verdict, had not shown that employer had treated her as if her condition substantially limited her major life activity of working. The Cook court stated:

        [W]e think the degree of limitation fell squarely to the jury and that the evidence warrants its finding that appellant regarded plaintiff as substantially impaired.

        In another case, Deane v. Pocono Medical Center, 142 F.3d 138 (3d. Cir. 1998), the district court granted summary judgment against a woman who claimed disability discrimination based on a perceived disability. The plaintiff in Deane, echoing Mr. Stone's claims in the instant case, claimed that her employer had acted on the basis of misperceptions as to her limitations, misperceptions that were the result of a “'snap judgment' arrived at without making a good faith analysis, investigation, or assessment of the nature of her injury.” 142 F.3d at 142.

        In Deane, the district court had held that the plaintiff could not invoke the ADA because, inter alia, her employer “regarded her impairment as limiting only her ability to work as a nurse on the surgical/medical floor, not her ability to work as a nurse in general . . . .” 142 F.3d at 144. The Circuit Court of Appeals disagreed with the district court's rationale, holding that there was 'sufficient evidence to create a genuine issue of material fact as to whether [her employer] regarded her as substantially limited in the major life activity of working. . . . [including] deposition testimony . . . documenting confusion as to the extent of Deane's physical capacity, with regard to pushing, pulling, and lifting.” 142 F.3d at 144- 145.See footnote 20 ²⁰

        Summing up the foregoing discussion, it seems clear that the commentators are correct in identifying a diverse body of federal disability discrimination law -- with some cases taking a highly restrictive approach to the question of who may go before a jury to seek to prove that they are a person with a disability within the meaning of the law -- and other cases taking a less restrictive approach.See footnote 21 ²¹

        Based on the foregoing discussion, we recognize that the West Virginia Human Rights Act, as created by our Legislature and as applied by our courts and administrative agencies, represents an independent approach to the law of disability discrimination that is not mechanically tied to federal disability discrimination jurisprudence.See footnote 22 ²²

         In summary, there is substantial authority in state disability discrimination law for the approach to “protected person” status that we have seen in our state law and in some federal cases.

        Finally, it is worth comparing Mr. Stone's complaint with the complaints of the plaintiffs in the numerous disability discrimination cases that we have examined in this opinion. We do not believe that any of those plaintiffs -- even the unsuccessful ones -- were complaining of a temporary transfer to another job at the same rate of pay, and with no long- term or permanent job detriment, pending the outcome of a medical examination that was facially justified.  See footnote 26 ²⁷

        Understanding the considerations on both sides, we must make our decision in this case in a fashion that reflects the law's due regard for the need of employers to respond flexibly to perceived or suspected impairments in a fashion that promotes employee and workplace safety without violating the law's prohibitions against disability discrimination.

         Based on all of the foregoing, we believe that under the facts of this case, a temporary transfer of an employee to another suitable full-time position, at the employee's regular rate of pay and without any long-term or permanent detriment to the employee, pending the results of an otherwise permissible medical examination related to a perceived or suspected mental or physical impairment, and absent otherwise egregious circumstances, is not prohibited disability discrimination under our Human Rights Act, W.Va. Code, 5-11-1 et seq.

        Applying this conclusion to Mr. Stone's claim, we conclude that he presented insufficient evidence to sustain a jury finding of illegal disability discrimination. Consequently, the circuit court's judgment must be reversed, and this matter remanded for entry of judgment for the Hospital.

“reserve[d] the right to arrange a light duty assignment following the employee's physician criteria and with physician approval. Refusal to accept the light duty assignment disqualifies the employee from utilizing EIB benefits.” Hospital personnel admitted at trial that the “light duty” policy had never -- before Mr. Stone's case -- been applied to require an employee to involuntarily shift from their normal position when the employee's physician had said the employee was fully capable of performing their regular duties.

respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind or disabled[.]
    (We shall in this opinion refer to the most recent enactment of the provisions of the Human Rights Act except where the language of an earlier enactment is of consequence.)

501, 383 S.E.2d 305 (1989) (rejecting the employer's contention that a coal miner who could do his assigned work with continuous and substantial pain due to degenerative joint disease could not bring a claim, and holding that the protection of our disability discrimination law would not be denied to an employee simply because he had stoically endured the difficulties caused by his medical condition); Coffman v. W.Va. Bd. of Regents, 182 W.Va. 73, 386 S.E.2d 1 (1988) (holding that a woman who suffered back pain, who was medically limited to light lifting, and who had problems bending, could make a claim); Teets v. Eastern Associated Coal Corp., Federal No. 2, 187 W.Va. 663, 421 S.E.2d 46 (1992) (per curiam) (holding that under pre-1989 law there must be an individualized determination of whether an individual has an actual disability, and reversing a summary judgment that held that a person did not have protected status to claim discrimination based on a back injury); Anderson v. Live Plants, Inc., 187 W.Va. 364, 419 S.E.2d 305 (1992) (per curiam) (noting the 1989 broadening of the law's scope of coverage, and rejecting the argument that because the employee had successfully worked at delivering pizza, maintaining a graveyard, washing cars, driving a taxi, and performing general labor, he did not have protected status to invoke the protection of disability discrimination laws); O'Dell v. Jennmar Corp. of W.Va., Inc., 184 W.Va. 280, 400 S.E.2d 288 (1990) (coverage of disability discrimination law applicable to pre-1989 facts did not extend to truck driver with back injury, where injury did not in fact limit his return to truck driving).

use of the left hand, arm and leg. The individuals who had these conditions hardly fit the Forrisi image of someone “whose disability was minor and whose relative severity of impairment was widely shared.” [But t]hey never had the opportunity to litigate their contentions that their employers had engaged in illegal discrimination against them.
Burgdorf, supra, at 539-541 (footnotes omitted).

Id. at 497.

of disability discrimination law -- because she was regarded as having a substantial impairment. The court said that a person is “'regarded as having an impairment' that substantially limits the person's major life activities when other people treat that person as having a substantially limiting impairment.” 554 N.W.2d at 704 (citations omitted). See also Mayerson, Arlene B., “Restoring Regard For the 'Regarded As' Prong: Giving Effect to Congressional Intent,” 42 Vill.L.Rev. 587 (1997).

not treated by her employer as being so limited. This is in contrast with Mr. Stone, who showed that the Hospital treated him as being at least temporarily unfit for driving and lifting, two major components of his regular job and of many jobs. Mr. Stone was treated as if he had an impairment that would have limited or even foreclosed his performing the same work for other ambulance companies, in contrast to Ms. Muller, who could have performed the same work but for another employer. In a third case to which the Hospital directs us, Fuqua v. Unisys Corp., 716 F.Supp. 1201 (D. Minn. 1989), the employee was a general laborer. He was temporarily laid off by his employer on the grounds that he was, for 13 months, perceived by his employer as unable to safely bend his back, twist his back, lift from the floor, or do overhead work. Although the opinion in Fuqua is somewhat confusing, the district court held inter alia that the employer did not perceive or treat the employee as having a condition that would substantially limit his employment, so the plaintiff had no protected status to invoke the law against disability discrimination. We cannot agree with the court's reasoning in Fuqua, because we believe (and our cases indicate) that for a general laborer, an inability to safely lift, bend, twist, and do overhead work is something that a fact- finder could see as a substantially limiting impairment. In a fourth case, Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985), a federal district court, apparently acting as a fact-finder, held that a postal employee did not have protected status to claim disability discrimination because his “cross-eyed” condition only prohibited him from using one machine, and there were many other positions he could fill. The court did not address “regarded-as” protected status, which distinguishes Jasany from Mr. Stone's case.

perceived disqualifying condition allowed the employee to invoke the law against disability discrimination. See also AT&T Technologies, Inc. v. Royston, 772 P.2d 1182 (Colo. 1989) (under state law a person who had a muscle strain in his back that caused him pain, required him to avoid heavy lifting and carrying, and restricted the use of his arms, was qualified to invoke the law against disability discrimination); Cisco Trucking Co., Inc. v. Human Rights Comm'n., 274 Ill.App.3d 72, 210 Ill.Dec. 791, 653 N.E.2d 986 (1995) (truck driver who had injured his back and was laid off was permitted to invoke the protection of the state disability discrimination law because the layoff was allegedly based on a perceived physical handicap); Turner v. City of Monroe, 634 So.2d 981 (La.Ct.App. 1994) (an employee who was treated as unable to return to his job as a signal technician following back surgery, after his treating physician had given him a clean bill of health, could invoke the protection of state law against disability discrimination); American National Insurance Company v. Fair Employment and Housing Commission, 32 Cal.3d 603, ___, 651 P.2d 1151, 1155, 186 Cal.Rptr. 345, ___ (1982) (“The law clearly was designed to prevent employers from acting arbitrarily against physical conditions that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.”); Howell v. Merritt Company, 585 N.W.2d 278 (Iowa 1998) (it was a jury question whether an employer terminated an employee in part because of a perception of disability associated with her use of a TENS device for back pain); Katz v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996) (applying state and federal law, holding that while it was a close question whether the plaintiff was “actually disabled” by his heart condition, he could invoke law against disability discrimination where he showed that his employer treated him as having a substantially limiting condition).