(1) Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.
(2) He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.
(3) Barnes contends that he does not now, nor did he ever have, epilepsy.
(4) He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.
(5) After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.
(6) The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.
(7) After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.
(8) The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.
(9) The Court refused the invitation.
(10) The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.
(11) The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.
-Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979).
ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?
UNFAIR PRACTICES OF EMPLOYERS: RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Id. at 578.
WASHINGTON ADMINISTRATIVE CODE: “The Washington State Human Rights Commission (The Commission) has adopted regulation WAC 162-22-040 [currently WAC 162-22-020] as follows:
(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:
(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)
(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:
(i) is medically recognizable or diagnosable;
(ii) exists as a record of history; or
(iii) is perceived to exist, whether or not it exists in fact.
(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.” Id. at 579.
“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.
JUDICIAL REVIEW OF REGULATIONS: “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)). The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314.).
LEGISLATIVE INTENT: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582. But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.
ESSENCE OF EMPLOYMENT DISCRIMINATION: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id. It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id. The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.
LEGISLATIVE PURPOSE: The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id. The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id. The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.” The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.
PROTECTED CLASS: Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.
APPLICATION OF POLICY: The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.
EMPLOYER’S INTERESTS: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).
The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.
ISSUE #2: Is [former] WAC 162-22-040(1)(b)(iii) valid?
PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted). The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).
See analysis under Issue #1 above..
The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.
NOTABLES & IMPLICATIONS:
[~1] “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.
WASHINGTON STATE HUMAN RIGHTS COMMISSION
[~2] “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010. The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. at 583 n. 2