Fair Employment Practices Law Summaries

Fair Employment Practices Law Summaries

Washington, Fair Employment Practices Law Summaries

The Washington Law Against Discrimination generally prohibits employment discrimination in the state. The law is codified in Title 49, Ch. 49.60 of the Annotated Revised Code of Washington.

The full text of Washington's Law Against Discrimination is available beginning at Employment Practices Guide ¶50-20,025.10 .

DEFINITIONS

“Disability” means the presence of a sensory, mental, or physical impairment that (Sec. 49.60.040, as amended by S. 5340, L. 2007):

1. is medically cognizable or diagnosable; or

2. exists as a record for history; or

3. is perceived to exist whether or not it exists in fact.

A disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope of this chapter (Sec. 49.60.040, as amended by S. 5340, L. 2007).

For purposes of this definition, “impairment” includes, but is not limited to (Sec. 49.60.040, as amended by S. 5340, L. 2007):

1. any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

2. any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and (Sec. 49.60.040, as amended by S. 5340, L. 2007):

1. 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 or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions or employment; or

2. The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.

For purposes of items (1) and (2) just above, a “limitation” is not substantial if it has only a trivial effect.

“Employee” does not include any individual employed by a parent, spouse, or child, or in domestic service (Sec. 49.60.040, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

“Employer” includes any person acting in the interest of an employer, who employs eight or more persons (Sec. 49.60.040, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

The term does not include any religious or sectarian organization not organized for private profit (Sec. 49.60.040, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

“Protected status” is short for the phrase “age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability” and means the full phrase (WAC 162-12-100, as amended effective January 21, 2000).

“Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth (Sec. 49.60.040, as amended by H. 2661, L. 2005, enacted January 31, 2006).

COVERAGE

Employers covered under Washington's Law Against Discrimination include persons acting in the interest of an employer, who employ eight or more persons (Sec. 49.60.040, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

Not covered are religious or sectarian organizations not organized for private profit (Sec. 49.60.040, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

EXCEPTIONS

Bona fide occupational qualifications.- Bona fide occupational qualifications permit discriminatory behavior (Sec. 49.60.172; and Sec. 49.60.180, as amended by Ch. 271 (H. 1491), L. 1997, effective July 27, 1997).

The law recognizes an exception to unfair preemployment inquiries when the inquiries are based upon a bona fide occupational qualification (WAC 162-12-135, as amended effective January 21, 2000).

Preemployment inquiries.- The law recognizes an exception to unfair preemployment inquiries when the inquiries are based upon a bona fide occupational qualification (WAC 162-12-135, as amended effective January 21, 2000).

Employers must comply with the preemployment inquiry rules (see WHAT THE EMPLOYER MUST DO below) except where one or more of the following conditions exist (WAC 162-12-140, as amended effective January 21, 2000):

1. when there is a bona fide occupational qualification;

2. a voluntary affirmative action plan that is in compliance with the requirements of a government agency or other competent authority such as a court, and if made in a manner provided in WAC 162-12-160 and 162-12-170 (see WHAT THE EMPLOYER MUST DO below);

3. a requirement of federal law or regulation, as explained in WAC 162-12-150 (see WHAT THE EMPLOYER MUST DO below).

If one or more of the above conditions apply, the inquiries of employers must be accompanied by a written explanation of their purpose (WAC 162-12-140, as amended effective January 21, 2000).

WHAT THE EMPLOYER MUST DO

It is an unfair practice for any employer (Sec. 49.60.180, as amended by S. 5123, L. 2007, effective July 22, 2007):

1. to refuse to hire any person because of age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or honorably discharged veteran or military status. (The prohibition against discrimination because of disability does not apply if the particular disability prevents the proper performance of the particular worker involved, and this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation).

2. to discharge or bar any person from employment because of age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or, effective July 22, 2007, honorably discharged veteran or military status.

3. to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or honorably discharged veteran or military status.

Civil rights.- The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to, the right to obtain and hold employment without discrimination (Sec. 49.60.030, as amended by H. 1596, L. 2009).

Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (Sec. 49.60.030, as amended by H. 1596, L. 2009).

Genetic testing.- See ¶49-8700 .

Advertisements.- Employers may not print or circulate any statement, advertisement or publication that express any limitation, specification or discrimination as to age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or honorably discharged veteran or military status (Sec. 49.60.180, as amended by S. 5123, L. 2007, effective July 22, 2007).

Retaliation.- Employers may not discharge, expel, or retaliate against an individual because the individual opposes any unlawful employment practices or files a charge, testifies, or assists in any enforcement proceeding (Sec. 49.60.210).

HIV/hepatitis C.- No person may require an individual to take an HIV test or hepatitis C test as a condition or hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question (Sec. 49.60.172(1), as amended by S. 5039, L. 2003).

No person may discharge or fail or refuse to hire any individual, or segregate or classify any individual in any way that would deprive or tend to deprive that individual of employment opportunities or adversely affect his or her status as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of the results of an HIV test or hepatitis C test unless the absence of HIV or hepatitis C infection is a BFOQ of the job in question (Sec. 49.60.172(2), as amended by S. 5039, L. 2003).

Employment applications.- Employers may not use any form of application for employment that expresses any limitation, specification or discrimination as to age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or honorably discharged veteran or military status (Sec. 49.60.180, as amended by S. 5123, L. 2007, effective July 22, 2007).

Preemployment inquiries.- Employers may not make any inquiry in connection with prospective employment that expresses any limitation, specification or discrimination as to age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or honorably discharged veteran or military status (Sec. 49.60.180, as amended by S. 5123, L. 2007, effective July 22, 2007).

Inquiries that convey to a reasonable person that applicants in a protected class will be discriminated against are prohibited whether or not they are connected to a discriminatory purpose (WAC 162-12-120(1), as amended effective January 21, 2000).

Any preemployment inquiry or the keeping of any record of protected status before employment for a discriminatory purpose is prohibited and may be evidence of an unfair practice when connected to the applicant's protected status unless the particular quality inquired about is a bona fide occupational qualification (WAC 162-12-130, as amended effective January 21, 2000).

The law recognizes an exception to unfair preemployment inquiries when the inquiries are based upon a bona fide occupational qualification (WAC 162-12-135, as amended effective January 21, 2000).

An employer may ask applicants about protected status to the extent that the employer is required to do so by the state or the U.S. government or a federal or state court decree. When the applicant data are required by the court or government, the information must be acquired by means other than inquiry to the applicants, unless the court or government expressly requires the inquiries or unless the inquiries are made in conformity with WAC 162-12-160 and 162-12-170 (below) (WAC 162-12-150, as amended effective January 21, 2000).

An employer may make inquiries as to race, sex, national origin or disability for purposes of affirmative action when the inquiries are made in the manner provided in WAC 162-12-170 (below) (WAC 162-12-160, as amended effective January 21, 2000).

Data on protected status may not be recorded on any record that is kept in the applicant's preemployment file, nor may such data be kept in any other place or form where it is available to those who process the application. Application records that identify the protected status of a particular person must be kept confidential, except to the extent necessary to implement an affirmative action program as authorized by law, to permit the compilation of statistics, and to permit verification of the statistics by top management of the employer, or by the Washington state human rights commission (WAC 162-12-160, as amended effective January 21, 2000).

An employer may ask an applicant to voluntarily state his or her protected status for reasons stated in WAC 162-12-150 and 162-12-160 (above) only if it has satisfied all of the following conditions (WAC 162-12-170, as amended effective January 21, 2000):

1. The employer must have adopted a written equal employment policy that authorizes the inquiries as a means of monitoring its enforcement, and that sets out detailed procedures for keeping the responses confidential and separate from other records relating to applicants (WAC 162-12-170, as amended effective January 21, 2000).

2. The form on which the question appears contains statements clearly informing the applicant the information is strictly voluntary, the reasons for asking for the information, the uses to which the information will be put, and the safeguards that will prevent use of the information by those who will process the application.

See also EXCEPTIONS above.

Public employment, education and contracts.- 1998 General Election Ballot Initiative 200, instituted the Washington State Civil Rights Act, prohibiting the state from discriminating against or giving preferential treatment to anyone based on race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting on all actions taken after Dec. 3, 1998.

The Washington State Civil Rights Act would not affect an otherwise lawful classification that is

1. based on sex and necessary for privacy or medical or psychological treatment

2. necessary for undercover law enforcement

3. necessary for film, video, or theatrical casting

4. provides for separate athletic teams for each sex

The Washington State Civil Rights Act would not invalidate a court order or consent degree already in force as of Dec. 3, 1998. Also, actions necessary to maintain eligibility for federal programs would not be prohibited if such prohibition would result in a loss of federal funds to the state.

“State” includes but is not limited to the state and any city, county, public college or university, community college, school district, special district, or other political subdivision or governmental instrumentality.

Remedies for violations are the same as those available for violations involving discrimination (Ballot Initiative 200, effective December 1998).

Governor Gary Locke issued Governor's Directive No. 98-01 on December 3, 1998, implementing Ballot Initiative Measure 200 regarding preferences based on sex and race. All executive agencies are directed to review their rules, policies, procedures and goals and to make changes where necessary to be consistent with this directive.

With regard to public employment, unless allowed under Secs. 4 or 6 of I-200:

1. race, sex, color, ethnicity and national origin may not be used in the final selection of an applicant;

2. plus 3, exception testing, and exam screening adjustment shall be discontinued when based on race, sex, etc.;

3. affirmative action plans and goals not in conflict with I-200 shall be maintained, but not binding; and

4. outreach and recruitment efforts shall be intensified.

With regard to public contracting, unless allowed under sections 4 or 6 of I-200:

1. race, sex, color, ethnicity and national origin shall not be considered in awarding construction or purchase of goods and services contracts;

2. laudatory goals shall be continued, but shall not be binding; and

3. outreach and recruitment efforts shall be intensified.

While the Governor cannot direct the actions of the state's institutions of higher education, the directive encourages student body diversity and consideration of the directive to ensure consistency across state government in the application of I-200.

Equal pay.- Any employer in Washington employing both males and females who discriminates in the payment of wages as between the sexes or who pays any female a less wage, be it time or piece work, or salary, than is being paid to males similarly employed, or in any employment formerly performed by males, will be guilty of a misdemeanor. If any female employee receives less compensation because of being discriminated against on account of her sex, and in violation of the equal pay law, she will be entitled to recover in a civil action the full amount of compensation that she would have received had she not been discriminated against. A differential in wages between employees based in good faith on a factor or factors other than sex does not constitute discrimination (Sec. 49.12.175).

Volunteer firefighters.- An employer (who had 20 or more full-time equivalent employees in the previous year) may not discharge or discipline a volunteer firefighter because of leave taken related to an alarm of fire or an emergency call (Sec. 49.12.460, as amended by Ch. 401 (S. 6054), L. 2003).

A volunteer firefighter who believes he or she was discharged or disciplined in violation of this section may file a complaint alleging the violation with the Director. The volunteer firefighter may allege a violation only by filing such a complaint within 90 days of the alleged violation (Sec. 49.12.460, as amended by Ch. 401 (S. 6054), L. 2003).

If the Director determines that this section was violated and the employer fails to reinstate the employee or withdraw the disciplinary action taken against the employee, within 30 days of receipt of notice of the Director's determination, the volunteer firefighter may bring an action against the employer alleging a violation of this section and seeking reinstatement or withdrawal of the disciplinary action (Sec. 49.12.460, as amended by Ch. 401 (S. 6054), L. 2003).

Broadcast industry employees.- If an employee of a broadcasting industry employer, other than a sales or management employee, subject to an employee noncompetition agreement is terminated without just cause or laid off by action of the employer, the noncompetition agreement is void and unenforceable. Nothing in this section restricts the right of an employer to protect trade secrets or other proprietary information by lawful means in equity or under applicable law. Nothing in this section has the effect of terminating, or in any way modifying, any rights or liabilities resulting from an employee noncompetition agreement that was entered into before December 31, 2005 (Sec. 49.44.190, as added by Ch. 176 (S. 5720), L. 2005).

“Employer” means any person, firm, corporation, partnership, business trust, legal representative, or other entity that engages in any business, industry, profession, or activity in Washington and employs one or more employees, and includes the state, counties, cities, and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations (Sec. 49.44.190, as added by Ch. 176 (S. 5720), L. 2005).

Sexual harassment.- The Director of Personnel shall adopt rules establishing guidelines for policies, procedures and mandatory training programs on sexual harassment for state employees to be adopted by state agencies and establishing reporting requirements for state agencies on compliance with Sec. 2, S. 5118, L. 2007 (below) (Sec. 1, S. 5118, L. 2007).

State agencies shall (1) update or develop and disseminate among all agency employees and contractors a policy that (a) defines and prohibits sexual harassment in the workplace; (b) includes procedures that describe how the agency will address concerns of employment who are affected by sexual harassment in the workplace; (c) identifies appropriate sanctions and disciplinary actions; and (d) complies with guidelines adopted by the Director of Personnel under Sec. 1, S. 5118, L. 2007 above; (2) respond promptly and effectively to sexual harassment concerns; (3) conduct training and education for all employees in order to prevent and eliminate sexual harassment in the organization; (4) inform employees of their right to file a complaint with the Washington state human rights commission under Ch. 49.60, or with the federal equal employment opportunity commission under Title VII of the Civil Rights Act of 1964; and (5) report to the Department of Personnel on compliance with this section. The cost of the training programs shall be borne by state agencies within existing resources (Sec. 2, S. 5118, L. 2007).

DEADLINES

Anyone aggrieved by an alleged unlawful employment practice must file a charge with the Washington Human Rights Commission six months of the date of occurrence of the alleged violation (Sec. 49.60.230).

TESTING

HIV/hepatitis C.- See WHAT THE EMPLOYER MUST DO above.

Genetic testing.- See ¶49-8700 .

ENFORCEMENT

A person aggrieved by an alleged unlawful employment practice may file a charge with the Washington Human Rights Commission within six months of the date of occurrence, or the Commission itself may issue a charge (Sec. 49.60.230).

Investigation and conciliation.- If there is reasonable cause that the unfair employment practice occurred, the Commission's staff will try to eliminate the unfair practice by conference, conciliation, and persuasion (Sec. 49.60.240).

Complaint and hearing.- If conciliation is not successful, the Commission staff must prepare a written complaint and file it with the Human Rights Commission. The Chairperson of the Commission will request the appointment of an Administrative Law Judge and a hearing will be held. Judicial review may be obtained (Sec. 49.60.250, as amended by Ch. 266 (S.B. 6776), L. 2008, effective June 12, 2008).

WHO TO CONTACT

Contact the Human Rights Commission, 711 S. Capitol Way, Suite 402, P.O. Box 42490, Olympia, WA 98504-2490, Telephone: (360) 753-6770, Fax: (360) 586-2282, TDD: (800) 300-7525.

RECORDKEEPING

Neither the Law Against Discrimination nor the preemployment inquiry rules (see WHAT THE EMPLOYER MUST DO above) prohibit making or keeping records of persons after they are employed, unless the records are used for the purpose of discrimination. To prevent improper use, records of an employee's protected status must be maintained in a manner accessible only on a need-to-know basis (WAC 162-12-180, as amended effective January 21, 2000).

PENALTIES

Relief or penalties for fair employment practice violations may include, separately or in combination, orders directing the employer to (Sec. 49.60.250, as amended by Ch. 266 (S.B. 6776), L. 2008, effective June 12, 2008):

1. cease and desist from the unfair practice;

2. hire, reinstate or upgrade the individual with or without back pay;

3. report as to the manner of compliance;

4. pay the individual damages for humiliation and mental suffering not to exceed $10,000.

Retaliation.- Violations of Washington's Law Against Discrimination retaliation provisions may be punishable by a civil penalty of up to $3,000 (Sec. 49.60.250).

<p>Retaliation.— Violations of Washington's Law Against Discrimination retaliation provisions may be punishable by a civil penalty of up to $3,000 (Sec.</p>

Washington, Fair Employment Practices Law Summaries

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