(concurring in part/dissenting in part) — By allowing the plaintiffs cause of action for disability discrimination to go forward, the majority trivializes the discrimination suffered by persons with disabilities. Moreover, the extremely broad definition proposed by the majority perverts the objective of the laws against discrimination in employment based upon disability, allowing common personal injuries to stand in the stead of true disability. This is not the aim of such laws.
The majority concludes that physical injuries which heal in a relatively short period of time, here a strained back and a broken foot, are “disabilities” within our state laws granting a civil rights cause of action to any person who is discriminated against in employment on the basis of “the presence of any sensory, mental, or physical disability.” RCW 49.60.030(l)(a), .030(2); see RCW 49.60.180 (making it an unfair practice for any employer to discriminate “in compensation or in other terms or conditions of employment because of... the presence of any sensory, mental, or physical disability”). The majority reaches its conclusion after judicially defining “disability” and then applying that definition in a way that encompasses such injuries.
The majority’s holding is inconsistent with the Legislature’s classification of disabled persons’ right to be free from discrimination as civil rights. It is inconsistent with the history of such antidiscrimination laws in this country. It is inconsistent with the overwhelming number of state laws respecting disability discrimination. It is inconsistent with federal law having the same purpose as our state statutes.
I cannot join the majority’s efforts in taking this state so far afield.
The history of discrimination against those who are disabled has involved several generally recognized stages. *653Through much of Western history, being a person with a disability was seen through religion as a moral failing, involving commission of some sin warranting the condition. Wendy E. Parmet, Plain Meaning and Mitigating Measures: Judicial Interpretations of the Meaning of Disability, 21 Berkeley J. Empl. & Lab. L. 53, 56 (2000). Early in the twentieth century, things had changed, and disability was seen in medical terms, which could be diagnosed, treated, and sometimes cured. Id. “From this perspective, treatment, care, and pity were the typical social responses.” Id. Then, following the Second World War, “and the concomitant backlash against Nazi eugenicist policies, as well as the rise of the civil rights movement, a new disability rights movement emerged.” Id. This movement was premised in large part on the principle that the difficulties that disabled persons encounter are not so much the result of their disabilities as the result of their social treatment. Id. at 56-57.
This “social vision” of disability became the foundation for disability antidiscrimination laws, such as Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994), as amended in 1974, Pub. L. No. 93-516, 88 Stat. 1617 (1974), which prohibits recipients of federal funding from discriminating against “otherwise qualified individuals” because of a disability. Parmet, 21 Berkeley J. Empl. & Lab. L. at 57-58. The definition of disability in the act states that an individual with a disability is “[a]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such as impairment.” Id. 29 U.S.C. § 705(20)(B) (1994). The same approach was followed in the Americans with Disabilities Act of 1990 (ADA), which adopted the Rehabilitation Act’s definition of disability. Parmet, 21 Berkeley J. Empl. & Lab. L. at 59-60.
Washington State’s inclusion in 1973 of those with “the presence of any sensory, mental, or physical disability” as a protected class in our civil rights laws thus mirrors the *654national response to the post-world-war-II disability rights movement. Laws of 1973, 1st Ex. Sess., ch. 214. The historical antecedents of antidiscrimination laws such as ours involve discrimination, in a societal context, against those with disabilities. People were shunned, were excluded, were pitied — because of disability. They were denied housing and jobs. Many could not access the places where the rest of society carried on their lives — stores, theaters, parks, restaurants, buses.
There is nothing about a back strain of short duration, or a broken foot that heals, which brings it within this historical context.
Further demonstration of how far afield the majority’s view of what constitutes a disability is found in the laws of the vast majority of other states, which do not recognize minor injuries or conditions of short duration as disabilities. Of the other 49 states, 27 have laws defining “disability” in much the same way as the Rehabilitation Act and the ADA define the term.7 Courts in these states have held, as have the federal courts, that a temporary injury is not a disability for purposes of discrimination laws. Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 28, 875 P.2d 1327, 1333 (1994) (“trivial or minor impairments that do not affect an individual’s general ability to secure, retain, or *655advance in employment do not qualify the individual as handicapped”; “ ‘the very concept of an impairment implies a characteristic that is not commonplace’ ”) (citation omitted); Hallgren v. Integrated Fin. Corp., 42 Mass. App. 686, 679 N.E.2d 259 (1997) (knee injury from which plaintiff fully recovered in a month with no residual effects is not a handicap under state statute); Chiles v. Machine Shop, Inc., 238 Mich. App. 462, 481, 606 N.W.2d 398, 409 (1999) (temporary back injury with permanent lifting retroactions of 50 pounds did not constitute a disability under state statute; the “inclusion of common ailments and injuries would mean that nearly everyone would qualify as ‘disabled’ at some time during their life” and “[allowing nearly everyone to take advantage of the [state act] would undermine the purpose of the act itself, which was to assure that ‘the truly disabled’ will not face discrimination because of stereotypes”); Cook v. Atoma Int’l of Am., Inc., 930 S.W.2d 43, 47 (Mo. Ct. App. 1996) (temporary injuries which are medically treatable are not actionable under state statute; “[iff temporary injuries were to be covered under the act, nearly any injury suffered by a person would qualify under the statute and thereby render the act meaningless”); Maloney v. Barberton Citizens Hosp., 109 Ohio App. 3d 372, 376, 672 N.E.2d 223, 225 (1996) (employee’s temporary back injury which caused pain and inconvenience for a definite period of time, but had no adverse residual effects, was not a handicap under state statute); Imler v. Hollidaysburg Am. Legion Ambulance Serv., 731 A.2d 169, 174 (Pa. Super. Ct. 1999) (herniated disc condition causing back impairment for eighteen months was a disability of limited duration which did not constitute a disability for purposes of state’s Human Rights Act), appeal denied, 560 Pa. 706, 743 A.2d 920 (1999); Providence Journal Co. v. Mason, 116 R.I. 614, 621, 624, 359 A.2d 682, 687, 90 A.L.R.3d 383 (1976) (although literal reading of state statute suggests any physical disability caused by injury is a “physical handicap,” the legislature could not have intended that result; a “physical handicap” “must be a serious injury or impairment of more than a temporary nature”; *656plaintiffs whiplash injuries did not constitute a “physical handicap” within meaning of statute).
Other states’ laws also exclude minor and temporary injuries. A number of states have definitions which, while varying from the federal definition in some respect, are similar, and at least as restrictive in what constitutes a disability. For example, Va. Code Ann. § 51.5-3 (Michie) defines “person with a disability” as “any person who has a physical or mental impairment which substantially limits one or more of his major life activities or has a record of such impairment [.]” Georgia’s statute defines an individual with disabilities as “any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities and who has a record of such impairment.” Ga. Code Ann. § 34-6A-2(3) (emphasis added). The Georgia courts look to federal law in deciding whether an impairment “substantially limits” employment activity because of the similarity of the Rehabilitation Act’s definition. Hennly v. Richardson, 264 Ga. 355, 357, 444 S.E.2d 317, 320 (1994). New York’s statute defines “disability” as
(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic, or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment....
N.Y. Exec. Law § 292(21) (West 1993 & Supp. 2000). The court in Aquinas v. Federal Express Corp., 940 F. Supp. 73, 79-80 (S.D.N.Y. 1996) reasoned that to the extent that this law differs from the ADA, the New York law is the more restrictive because it requires “ ‘prevention,’ ” rather than “substantial impairment,” of a “ ‘normal bodily function’ ” rather than of “a major life activity.” Utah Code Ann. § 34A-5-102(5) (Michie 1997 & Supp. 2000) defines disability as “a physical or mental impairment that substantially limits one or more of an individual’s major life activities.” Wis. Stat. § 111.32(8) defines “individual with a disability” *657as one who “(a) [h]as a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) [h]as a record of such an impairment; or (c) [i]s perceived as having such an impairment.” Florida’s statute defines “physically disabled person” for purposes of discrimination in employment as “any person having a physical impairment that substantially limits one or more major life activities.” Fla. Stat. Ann. § 413.08(6)(a) (West). This statute has been construed in conformity with the federal Rehabilitation Act and the ADA. Greene v. Seminole Elec. Coop., 701 So. 2d 646, 647 (Fla. Dist. Ct. App. 1997) (citing Brand v. Florida Power Corp., 633 So. 2d 504 (Fla. Dist. Ct. App. 1994)).
775 Ill. Comp. Stat. 5/1-103(1) provides that “handicap” means a “determinable physical or mental characteristic of a person, including, but not limited to, a determinable physical characteristic which necessitates the person’s use of a guide, hearing or support dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder . . ..” While this does not limit disabilities to conditions which are “ ‘grave or extreme in nature!,]’ ” it excludes “ ‘transitory and insubstantial’ ” conditions and “ ‘conditions which are not significantly debilitating or disfiguring.’ ” Anderson v. Modern Metal Prods., 305 Ill. App. 3d 91, 98, 711 N.E.2d 464, 468, 238 Ill. Dec. 361 (1999) (quoting 56 Ill. Admin. Code 2500.20(b) (1996)). In Anderson the employee’s medical records disclosed only a 1994 diagnosis of right ulnar neuritis, thoracolumbar strain, and right shoulder strain, from which she was released to regular work with no restrictions except to avoid repetitive work; a 1995 diagnosis of chronic lumbar strain and a 25-pound weight limit; and a post-discrimination-claim diagnosis of myofascial syndrome, for which she was placed on light duty. The court held that the record supported the investigator’s conclusion that the employee’s condition was transitory in nature. Anderson, 711 N.E.2d 468.
*658Some states have specific statutory restrictions which preclude temporary conditions. Conn. Gen. Stat. Ann. § 1-1f(b) (West) provides that an individual is physically disabled “if he has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device.” (Emphasis added.) Georgia’s statute also falls into this category.
Several states require that a physical disability be a “substantial” disability for a person to come within the scope of the laws against discriminating against persons with a disability. Idaho Code § 56-701A(3) (Michie); Iowa Code Ann. § 216.2(5) (West 1994 & Supp. 2000) (also includes HIV positive persons and persons with AIDS); Ky. Rev. Stat. Ann. 207.130(2) (Lexis); Ind. Code Ann. § 22-9-1-3(r) (Lexis 1997 & Supp. 2000); S.C. Code Ann. § 43-33-560 (Law. Coop. 1985 & West Supp. 1999). The Supreme Court of Iowa has looked to federal law as analogous as to what constitutes a “disability” within state law. Bearshield v. John Morrell & Co., 570 N.W.2d 915, 918 (Iowa 1997).
Some states provide a detailed definition of what constitutes a disability. Such statutes also provide definitions that are generally more restrictive than the majority’s. For example, the California statute provides that a physical disability includes
[Waving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: . . . [a]ffects one or more of the following bodily systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine ... [and] [l]imits an individual’s ability to participate in major life activities.
Cal. Gov’t Code § 12926 (k) (West) (emphasis added). Also included is “any other health impairment. .. that requires special education or related services.” “Mental disabilities” *659are also defined, and include “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Id. § 12926(i). Conditions excluded under the ADA are also exclusions under California law. Id.8
The only other state with language like that in RCW 49.60 is Arkansas. Ark. Code Ann. § 16-123-107(a) (Michie) provides that “[t]he right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. Th[e] right.. . include[s] . . . [t]he right to obtain and hold employment without discrimination[.]” Id., § 16-123-107(a)(l). Unlike Washington’s statute, which does not define “any sensory, mental, or physical disability,” *660Arkansas defines “disability” as “a physical or mental impairment that substantially limits a major life function, but ‘disability’ does not include” specific named conditions, including compulsive gambling, current use of illegal drugs, and alcoholism. Id., § 16-23-102(3) (emphasis added).
Other state’s statutes do not prohibit discrimination in the private sector on the basis of disability.9
Tennessee’s statutes prohibit employment discrimination based solely upon “any physical, mental or visual handicap of the applicant....” Tenn. Code Ann. § 8-50-103 (Michie). Texas law defines “person with a disability” as “a person who has a mental or physical disability, including mental retardation, hearing impairment, deafness, speech impairment, visual impairment, or any health impairment that requires special ambulatory devices or services.” Tex. Hum. Res. Code Ann. § 121.002(4) (West 1990 & Supp. 2000).
As can be seen, most state laws are far more restrictive in the definition of what constitutes a disability than the majority’s view that a temporary back injury and a broken bone which heals may be disabilities under chapter 49.60 RCW. Far from suggesting that our law is more protective, this fact demonstrates how far out of step the majority opinion is. I cannot believe that our state legislature intended to include such temporary injuries as disabilities subject to civil rights protection.
Also contrary to the majority’s view, the ADA and cases interpreting it should not be summarily dismissed. Both the ADA and our civil rights laws seek to prevent discrimination against the disabled in employment. This court has previously held that “when Washington statutes or regulations have the same purpose as their federal counterparts, we will look to federal decisions to determine the appropri*661ate construction.” Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 118, 720 P.2d 793 (1986). In Clarke, which involved a claim of disability discrimination, the court looked to federal case law construing the definition of “otherwise qualified” person in the federal Rehabilitation Act, and said “[w]e believe a similar construction applies to RCW 49.60.180.” Clarke, 106 Wn.2d at 119; see also Dean v. Municipality of Metro. Seattle, 104 Wn.2d 627, 637, 708 P.2d 393 (1985) (stating that federal law may be considered instructive with regard to our state discrimination laws); Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 861, 621 P.2d 1293 (1980), (because federal law, Title VTI of the Civil Rights Act of 1964, is to be construed broadly, and the legislature has directed that RCW 49.60 be liberally construed, relevant federal cases may be looked to for guidance); cf. Fell v. Spokane Transit Auth., 128 Wn.2d 618, 911 P.2d 1319 (1996) (looking to the ADA to determine compliance with state law on accommodating persons with disabilities).
While this court is not bound by federal case law construing the ADA, the civil rights for disabled persons embodied in this state’s statutes have the same purpose as the ADA— the prevention of, and redress for, discrimination on the basis of disability. It is appropriate to consider what constitutes a disability under federal law. As the majority acknowledges, temporary conditions do not constitute disabilities under the ADA.
Finally, commentators have also rejected the premise that common injuries constitute disabilities under laws against discrimination based upon disability. As a leading treatise states: *6623A Arthur Larson & Lex K. Larson, Employment Discrimination, § 107.32(c), at 22-131 (1991). In an article analyzing the federal Rehabilitation Act and Washington’s law, another author wrote that
*661To include only serious conditions of some extended duration within the meaning of the term “handicap” will prevent an unwarranted extension of handicapped discrimination legislation to subsume a more trivial type of personal injury .... [I] t is doubtful that any legislature intended, or even envisioned, that its handicapped discrimination laws would be interpreted to address the problems associated with a sprained finger or ankle.
*662it would seem that the proper approach to coverage is to limit the definition of “handicap” to individuals who have real and substantial disabilities along the lines set forth under the [federal] Rehabilitation Act [of 1973] [the same definition is used in the Americans with Disabilities Act]. This approach offers guidance to employers in terms of the prospective application of the law. It focuses administrative and judicial resources where they are needed most, and it offers protection to those who need protection without opening the floodgates to frivolous or vexatious litigation. Moreover, some limitation in defining who is handicapped is essential in order for the concept of reasonable accommodation to be workable.
Lee Miller, Hiring the Handicapped: An Analysis of Laws Prohibiting Discrimination Against the Handicapped in Employment, 16 Gonz. L. Rev. 23, 35 (1980-81) (footnotes omitted).
I agree with the majority that the Human Rights Commission’s regulatory definition of a “sensory, mental or physical disability” is unworkable. First, it is circular, though not for the reason stated by the majority. The definition in WAC 162-22-040(1) is circular because it first requires a finding of discrimination in order to determine what constitutes a disability for purposes of the laws against discrimination. Second, it is so expansive that it “bring[s] virtually everyone within its ambit.” See Miller, 16 Gonz. L. Rev. at 30-31.10 However, I would not trade the *663regulatory definition for the majoritys inclusion of commonplace injuries. 11
I would hold that as a matter of law plaintiff’s claimed disabilities do not constitute disabilities within the meaning of our statutes prohibiting discrimination on the basis of disability.
Alexander, J., concurs with Madsen, J.
These states are: Alaska (Alaska Stat. § 18.80.300(12) (Lexis)); Arizona (Ariz. Rev. Stat. Ann. § 41.1461) (West); Colorado (Colo. Rev. Stat. § 24-34-301(2.5) (Bradford)); Delaware (Del. Code Ann. tit. 19 § 722(4) (Michie)); Hawaii (Haw. Rev. Stat. Ann. § 378-1) (Michie)); Kansas (Kan. Stat. Ann. § 44-1002(j)); Louisiana (La. Rev. Stat. Ann. § 46:2253(1) (West)); Massachusetts (Mass. Gen. Laws Ann. ch. 151B § 1(17) (West)); Michigan (Mich. Stat. Ann. § 3550(103)(d) (Lexis 1998 & Supp. 2000)); Minnesota (Minn. Stat. Ann. § 363.01(13) (West 1996 & Supp. 2000)); Missouri (Mo. Rev. Stat. § 213.010(4) (West 1996 & Supp. 2000)); Montana (Mont. Code Ann. § 49-3-101(3)); Nebraska (Neb. Rev. Stat. § 48-1102(9) (Michie)); Nevada (Nev. Rev. Stat. § 613.310(1)); New Hampshire (N.H. Rev. Stat. Ann. § 354-A:2(IV) (Michie)); New Mexico (N.M. Stat. Ann. § 28-1-2(M) (Michie)); North Carolina (N.C. Gen. Stat. Ann. § 168A-3(4a)); North Dakota (N.D. Cent. Code § 14-02.4-02(3)); Ohio (Ohio Rev. Code Ann. § 4112.01(13) (Anderson)); Oklahoma (Okla. Stat. Ann. tit. 25 § 1301 (4)(West)); Oregon (Or. Rev. Stat. Ann. § 659.400(1) (Butterworth)); Pennsylvania (43 Pa. Cons. Stat. Ann. § 954(p.1) (West 1991 & Supp. 2000)); Rhode Island (R.I. Gen. Laws § 28-5-6(9) (Michie)); South Dakota (S.D. Codified Laws § 20-13-1(4) (Michie)); Vermont (Vt. Stat. Ann. tit. 21, § 495d(5) (Butterworth)); West Virginia (W. Va. Code Ann. § 5-11-3(m) (Michie)); Wyoming (Wy. Rules and Reg. Emp. ls ch. 10, § 2(a)).
Other states also have detailed lists of disabling conditions. See Me. Rev. Stat. Ann. Tit. 5, § 4553(7-A) (West 1989 & Supp. 1999), which provides that “physical or mental handicap” means “any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions, or illness, and also includes the physical or mental condition of a person which constitutes a substantial handicap as determined by a physician or, in the case of mental handicap, by a psychiatrist or psychologist, as well as any other health or sensory impairment which requires special education, vocational rehabilitation or related services.” Maine’s statute goes on to provide that a person with a physical or a mental disability is a “person who . . . fifias a physical or mental disability. . . fifias a record of a physical or mental disability... or [i]s regarded as having a physical or mental disability.” Id. § 4553(7-B). Md. Code Ann. art. 49B, § 15 (Michie 1998 & Supp. 1999) provides that “disability’ means “any physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impediment or physical rebanee on a seeing eye dog, wheelchair, or other remedial appliance or device; and any mental impairment or deficiency as, but not limited to, retardation or such other which may have necessitated remedial or special education and related services.” N.J. Rev. Stat. Ann. § 10:5-5(q) (West) defines “handicapped” as “suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Handicapped shall also mean suffering from AIDS or HIV infection.”
Ala. Code § 21-7-1 (Law. Coop.) states that it is “the policy of this state to encourage and enable the blind, the visually handicapped and the otherwise physically disabled to participate fully in the social and economic life of the state and to engage in remunerative employment.” Alabama does prohibit discrimination against such disabled persons in the public sector. Id. § 21-7-8. Mississippi similarly prohibits discrimination in the public sector. Miss. Code. Ann. 43-6-15 (Law. Coop.). Neither of these states’ statutes defines handicap or disability.
This court defined “handicap” as used in former ROW 49.60.030 and .180 when rejecting a due process vagueness challenge, relying on the common dictionary definition. Chicago, M., St. P. & Pac. R.R. v. State Human Rights Comm’n, 87 Wn.2d 802, 805, 557 P.2d 307 (1976). The court said that a “handicap” connotes a “condition that prevents normal functioning in some way. A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental, or physical faculties.” The court noted the dictionary definition: “ ‘a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work.’ ” Id. (quoting Webster’s Third New International Dictionary (1961)). This definition is not helpful here because it does *663not resolve the question whether there is a durational aspect of “disability for purposes of RCW 49.60.
The majority’s analysis also inconsistently states that the employee has the burden to present a prima facie case of discrimination, including medical evidence of a handicap, and then allows the plaintiffs action to go forward based upon her own declaration and testimony. Majority at 642-43.
Significantly, the majority’s definition of disability does not leave any room for the case where the discrimination is based on a perceived disability, unlike the majority of states’ definitions.