WSHRC Digest Archives — LAW OFFICE OF GREGORY A. WILLIAMS

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning bona fide occupational qualification? Here’s my point of view.

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WSHRC — EMPLOYMENT — BONA FIDE OCCUPATIONAL QUALIFICATION

In Washington State, discrimination in employment based on protected characteristics is prohibited under the Washington Law Against Discrimination. However, the Washington Administrative Code (WAC 162-16-240) recognizes a narrow exception to this rule: the bona fide occupational qualification (BFOQ).

A BFOQ allows an employer to consider a person’s protected status only when it is genuinely necessary to the job. This isn’t a loophole for bias—it’s a specific, limited carve-out. The Washington State Human Rights Commission emphasizes that BFOQs must be applied narrowly and thoughtfully.

THE BLACK LETTER LAW: WAC 162-16-240

The relevant provision is WAC 162-16-240*, and it states as follows:

WAC 162-16-240
Bona fide occupational qualification.

Under the law against discrimination, there is an exception to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of protected status; that is if a bona fide occupational qualification (BFOQ) applies. The commission believes that the BFOQ exception should be applied narrowly to jobs for which a particular quality of protected status will be essential to or will contribute to the accomplishment of the purposes of the job. The following examples illustrate how the commission applies BFOQs:

(1) Where it is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress) or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter) the commission will consider protected status to be a BFOQ.

(2) A 911 emergency response service needs operators who are bilingual in English and Spanish. The job qualification should be spoken language competency, not national origin.

(3) An employer refuses to consider a person with a disability for a receptionist position on the basis that the person’s disability “would make customers and other coworkers uncomfortable.” This is not a valid BFOQ.

(4) A person with a disability applies for promotion to a position at a different site within the firm. The firm does not promote the person because doing so would compel the firm to install an assistive device on equipment at that site to enable the person to properly perform the job. This is not a valid BFOQ.

WAC 162-16-240* (emphasis and hyperlinks added).

What Qualifies as a BFOQ?

Thus, some key examples clarify when a BFOQ may or may not apply:

• Authenticity or Privacy: A protected status may be essential when authenticity matters—such as hiring an actor for a culturally specific role—or when maintaining privacy is necessary, like hiring locker room attendants or intimate apparel fitters.

• Skill Over Status: Requiring bilingual ability for a 911 operator position is acceptable. However, the requirement should be based on language skills, not the applicant’s ethnic background.

• Discomfort Isn’t a Defense: Employers cannot reject a person with a disability simply because coworkers or customers might feel “uncomfortable.” That’s not a valid BFOQ.

• Accommodation is Not Optional: Refusing to promote someone with a disability to avoid the cost of accommodations—like assistive equipment—also fails to meet the BFOQ standard.

CONCLUSION

The BFOQ rule exists to ensure that only in rare, well-justified cases can an employer factor in protected status. Washington law draws a clear line between legitimate job requirements and discriminatory practices disguised as necessity.

Employers should tread carefully—and consult legal guidance—before invoking a BFOQ. Misusing this exception can lead to serious legal consequences and undermine workplace equity.

We invite you to read more of our articles related to this topic:

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Functions, Powers, and Duties

» WSHRC: From Complaint to Conclusion

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-gw

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning findings? Here’s my point of view.

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Understanding WAC 162-08-098: Findings in Human Rights Commission Investigations

When the Washington State Human Rights Commission (WSHRC) investigates a discrimination complaint, its ultimate goal is to determine whether there is reasonable cause to believe that an unfair practice has occurred. WAC 162-08-098* outlines how the Commission formalizes those determinations through official findings, which serve as a critical turning point in the complaint process.

Purpose of the Findings Document

Every investigation concludes with a written findings document containing two key elements:

1. Findings of fact — A summary of what the investigation determined actually occurred, based on evidence gathered.

2. Ultimate finding — A formal conclusion stating whether there is:

• Reasonable cause to believe discrimination or another unfair practice has occurred,

• No reasonable cause, or

• A jurisdictional finding, as discussed below.

This document provides transparency and structure, ensuring that both parties understand the Commission’s basis for its conclusions.

Jurisdictional Findings

Sometimes, the facts reveal that the matter is not within the Commission’s jurisdiction—for example, if the complaint involves a federal agency or an employer too small to be covered under Washington’s Law Against Discrimination (WLAD). In such cases, the Commission issues a finding of “no jurisdiction.”

In extraordinary circumstances, even when the Commission technically has jurisdiction, it may decline to exercise it for overriding reasons of law or policy. A rare example is when the complaint is filed against the Commission itself, which would create a conflict of interest. In these situations, the ultimate finding is “jurisdiction declined.”

Scope of a “Reasonable Cause” Finding

When the Commission finds reasonable cause, it must specify:

• The specific unfair practice found (such as discriminatory discharge or housing denial),

• The individual(s) affected, and

• If applicable, the class of persons impacted.

This level of detail ensures that remedial efforts—such as conciliation or negotiated settlements—address the actual harm uncovered during investigation.

Commissioner Involvement and Actions

Findings of no reasonable cause are reported to the Commissioners at a meeting and become official unless the Commissioners vote to set them aside.

Findings of reasonable cause empower Commission staff to pursue conciliation efforts—attempting to resolve the matter voluntarily through dialogue and agreement.

Proposed findings of “no jurisdiction” or “jurisdiction declined” require formal approval by the Commissioners through a vote at a meeting.

The Legal Effect of Findings

Importantly, a finding of reasonable cause or no reasonable cause is not a legal adjudication. It does not determine whether discrimination actually occurred in the legal sense—it merely reflects the Commission’s administrative conclusion based on its investigation.

Implications

WAC 162-08-098 ensures that the Human Rights Commission’s processes remain fair, consistent, and transparent. By clearly defining how and when findings are made—and distinguishing investigative conclusions from legal determinations—the rule protects the integrity of both complainants’ and respondents’ rights. It also reinforces the Commission’s role as a neutral fact-finder, dedicated to resolving discrimination claims efficiently while maintaining public trust in the enforcement of Washington’s anti-discrimination laws.

We invite you to read more of our articles related to this topic:

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Functions, Powers, and Duties

» WSHRC: From Complaint to Conclusion

» WSHRC: Organization and Operations

» WSHRC: Relationship of Commission to Complainant

» WSHRC: Withdrawal of Complaint