March 2018 • WSHRC Digest

Practice & Procedure Definitions – Administrative Hearing

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what is the definition of the term “Administrative Hearing”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF ADMINISTRATIVE HEARING

WAC 162-08-017 is the relevant regulation, and it defines the term “Administrative Hearing” as follows:

“Administrative hearing” means a public hearing brought pursuant to RCW 49.60.250.

WAC 162-08-017 (emphasis added). In the Practice-and-Procedure Chapter, the term is used with the meaning given, unless the context clearly indicates another meaning. Id.

THE ADMINISTRATIVE HEARING (RCW 49.60.250)

An RCW 49.60.250 Hearing (Administrative Hearing) referenced in the definition above typically occurs when the parties associated with a complaint of discrimination fail “to reach an agreement for the elimination of such unfair practice,” and “upon the entry of findings to that effect, the entire file, including the complaint and any and all findings made, shall be certified to the chairperson of the commission.” RCW 49.60.250 (hyperlinks added). Accordingly, the Commission Chairperson must then request the following:

[T]he appointment of an administrative law judge under Title 34 RCW to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the administrative law judge, at a time and place to be specified in such notice.

Id. (hyperlinks added).

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If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Paper Submission Guidelines

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the guidelines for paper submissions? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt guidelines regarding paper submissions. See WAC 162-08-051, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

THE GENERAL RULE

The Commission allows papers to be submitted in any form, subject to the exceptions below. However, it “requests, but does not require, that all papers be typewritten on white paper of letter size (8 1/2 x 11″).” WAC 162-08-051.

THE EXCEPTIONS

There are two exceptions to the above rule as follows: (1) papers filed with an administrative law judge that are covered by WAC 162-08-241; and (2) any other papers wherein the form is specified by rule. WAC 162-08-051.

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Interpretation & Waiver

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the rules regarding interpretation and waiver of Practice-and-Procedure WACs? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules regarding the interpretation and waiver of its Practice-and-Procedure chapter. See WA State Legislature Website (bottom of page body), WAC 162-08-013. The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

THE PRACTICE & PROCEDURE RULES

Chapter 162.08 WAC contains the Practice-and-Procedure rules for the Commission. These rules “govern all practice and procedure before the commission, including practice before administrative law judges.” WAC 162-08-011 (hyperlink added).

INTERPRETATION

Practice-and-Procedure rules (WAC 162.08) “shall be interpreted liberally to promote justice and to facilitate the decision of cases on the merits.” WAC 162-08-013.

WAIVER

Moreover, “[t]he chairperson of the commission or an administrative law judge, on their own initiative or on motion of a party, may waive or alter the procedures in any of these rules and may enlarge or shorten the time within which an act must be done in a particular case, in order to serve the ends of justice.” Id.

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Practice & Procedure Amendments

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, do Practice and Procedure Amendments apply to pending cases? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

PRACTICE & PROCEDURE AMENDMENTS

Chapter 162-08 WAC (Practice & Procedure) is the relevant law, and it addresses amendments to that chapter as follows:

(4) Amendments apply to pending cases. An amendment to this chapter applies to cases pending at the time of the adoption of the amendment, unless the amendment or rule-making order says that it does not apply to pending cases. An amendment to this chapter does not require that anything already done be redone to comply with the amendment, unless the amendment expressly says so.

WAC 162-08-011(4). Thus, amendments to the Practice and Procedure Chapter apply to pending cases unless indicated otherwise.

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The Interrelationship Between WSHRC, WLAD & APA

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the interrelationship between the WSHRC, the Washington Law Against Discrimination (WLAD), and the Administrative Procedure Act (APA)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WSHRC, WLAD & APA

WSHRC is a state agency established in 1949 by the Washington State Legislature. It is responsible for administering and enforcing the WLAD. Official WSHRC Website, last visited 3/21/18

WLAD “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, 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 prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower complaints.” Id.

APA is a state law enacted in 1988 to “clarify the existing law of administrative procedure, to achieve greater consistency with other states and the federal government in administrative procedure, and to provide greater public and legislative access to administrative decision making.” RCW 34.05.001.

THE INTERRELATIONSHIP

Under the WAC, chapter 162-08 governs “all commission practice and procedure before the commission, including before administrative law judges.” WAC 162-08-011 (hyperlink added).

The rules in WAC 162-08 “supplement the statutory procedures in the Administrative Procedure Act, chapter 34.05 RCW, and the law against discrimination, chapter 49.60 RCW.” Id. (hyperlink added).

“Where provisions of the law against discrimination are inconsistent with the Administrative Procedure Act, the Administrative Procedure Act governs.” Id. (hyperlink added).

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Executive Director Opinions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, may the executive director issue opinions? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WSHRC regulations authorize the executive director to issue opinions subject to limitations within the following categories: (1) Authorization; (2) Review by Commission; (3) Revocation or Revision; (4) Supersedure; (5) Reliance; (6) Subdelegation; and (7) Authentication.

EXECUTIVE DIRECTOR MAY ISSUE OPINIONS

WAC 162-04-070 is the relevant regulation, and it provides as follows:

1. Authorization

The executive director may issue written opinions to persons who request advice as to the application of the law against discrimination or rules or practices of the commission. The opinions shall not be inconsistent with the statute, or the regulations or policies of the commission.

2. Review by Commission

The executive director shall send a copy of each opinion to each commissioner before, or promptly after, it is sent to the person requesting it. Any commissioner may have the question of commission approval, disapproval, or revision of an opinion put on the agenda of a commission meeting, and the commission shall then approve, disapprove, or revise the opinion.

3. Revocation or Revision

An opinion of the executive director may be revoked or revised at any time by the executive director, or by action of the commissioners at a meeting. The revocation or revision shall not be effective as to the person who requested the opinion until that person has notice of the revocation or revision.

4. Supersedure

An opinion of the executive director is automatically superseded by any material change in the applicable statutes, regulations, or case law. Notice to the person who requested the opinion is not necessary for supersedure under this paragraph.

5. Reliance

When any person has relied in good faith on an opinion of the executive director, the commission will not thereafter assert a contrary position against that person, unless the opinion is revoked or revised, or is superseded by a material change in the applicable statutes, regulations, or case law. This paragraph covers persons other than the person who requested the opinion, if the persons have justifiedly relied on the opinion.

6. Subdelegation

The executive director may authorize members of the commission’s staff or the commission’s legal counsel to issue opinions in the name of the executive director, subject to the supervision of the executive director, and subject to all of the requirements of this section.

7. Authentication

Nothing shall be an opinion of the executive director for purposes of …[WAC 162-04-070] unless it is designated as such in its caption or in its text.

See WAC 162-04-070 (internal and external hyperlinks added).

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Delegation of Executive Director Duties & Powers

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, may the executive director delegate his/her duties and powers? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

EXECUTIVE DIRECTOR MAY DELEGATE DUTIES & POWERS

WAC 162-04-060 is the relevant regulation, and it states as follows:

Unless a statute or rule provides otherwise, all duties and powers assigned to the executive director may be delegated by the executive director to other staff persons of the commission, with the executive director remaining responsible. The general practice of the commissioners is to assign all staff duties and powers to the executive director, with the understanding that the executive director will allocate and reallocate the tasks among the staff and see that the tasks are performed.

WAC 162-04-060 (emphasis and hyperlink added). Thus, the executive director may delegate his/her duties and powers to other staff persons of the commission. Ultimately, the executive director will remain responsible.

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Executive Director Responsibilities

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the responsibilities of the executive director? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

EXECUTIVE DIRECTOR’S RESPONSIBILITIES

WAC 162-04-020 is the relevant regulation, and it states that the executive director’s responsibilities are as follows:

(4) Executive director. The executive director is the commission’s chief executive. He or she is responsible for carrying out the commission’s programs and directing the commission’s staff.

WAC 162-04-020 (emphasis and hyperlink added). The term is used with the meaning given under the regulations, unless the context clearly indicates another meaning. See WAC 162-04-010.

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WSHRC Objectives for Employment Regulations

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the objectives of its employment regulations, WAC 162-16? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

EMPLOYMENT DISCRIMINATION PROTECTIONS

The Washington Law Against Discrimination (WLAD) provides protections against employment discrimination (RCW 49.60.180, 49.60.190, and 49.60.200). See WAC 162-16-200. Further protections against employment discrimination are enumerated in RCW 49.60.172 (unfair practices with respect to HIV infection), RCW 49.60.174 (actual or perceived HIV infection), and RCW 49.60.210 (unfair to discriminate against person opposing unfair practice). See id.

THE OVERALL OBJECTIVE

The overall objective of the WLAD and the commission’s first objective in both writing the associated employment regulations (WAC 162-16) and making future decisions on questions not addressed in the chapter, is to eliminate and prevent discrimination. See id.

FOUR ADDITIONAL OBJECTIVES

The commission maintains four additional objectives in writing the employment regulations under WAC 162-16, as follows:

(1) To be consistent with interpretations of federal antidiscrimination law and the antidiscrimination laws of other states, where these are comparable to Washington law, and where the commission does not find that a different rule would better serve the state of Washington.

(2) To avoid the uncritical adoption of definitions from areas of law other than antidiscrimination law. It is appropriate to define employment differently in different areas of the law to carry out the separate purpose of each area of law.

(3) To give effect to the purposes of the exemption of employers of less than eight from public enforcement of the law against discrimination, as identified in RCW 49.60.040.

(4) The public and commission staff need standards that are certain and that are easy to understand and apply. Therefore we must sometimes simply draw a line, although reasonable persons could differ as to where the line should be drawn.

See WAC 162-16-200.

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–gw

WSHRC Definition of Protected Class

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “protected class”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF PROTECTED CLASS (GENERALLY)

WAC 162-04-010 is the relevant regulation, and it defines the term “protected class” as follows:

“Protected class” means the persons who are members of (or who are treated as members of) one of the groups against whom discrimination is declared to be an unfair practice by the law against discrimination. Protected classes include persons between the ages of forty and seventy, persons of any race, creed, color, national origin, sex, or marital status, and persons who are handicapped.

WAC 162-04-010 (emphasis added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

REGARDING EMPLOYMENT DISCRIMINATION

For purposes of WSHRC employment regulations (WAC 162-16), protected class means as follows (unless the context clearly indicates another meaning):

“Protected status” is short for the phrase, “age, sex, sexual orientation, gender expression or gender identity, 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 disabled person,” and means the full phrase (see RCW 49.60.180).

WAC 162-16-200.

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–gw

WSHRC Definition of Member

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “member”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF MEMBER

WAC 162-04-010 is the relevant regulation, and it defines the term “member” as follows:

“Member” means a member of the commission, except where the context indicates another meaning is intended.

WAC 162-04-010 (emphasis added) (hyperlink added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

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–gw

Real Estate Transactions — Definition of Dwelling

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Real Estate Transactions Regulations, what is the definition of “dwelling“? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to define the term “dwelling.” See WAC 162-36-001, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added). Additional enabling authority is provided under RCW 49.60.240.

REAL ESTATE TRANSACTIONS — DEFINITION OF DWELLING

WAC 162-36-001 is the relevant regulation, and it defines the term “dwelling” as follows:

(2) “Dwelling” means any building, structure or portion thereof that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof[.]

WAC 162-36-001(1) (emphasis added) (hyperlinks added).

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–gw

WSHRC Definition of Marital Status

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “marital status”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF MARITAL STATUS

WAC 162-04-010 is the relevant regulation, and it defines the term “marital status” as follows:

“Marital status” refers to the legal status of being married, single, divorced, or widowed.

WAC 162-04-010 (emphasis added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

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–gw

WSHRC Definition of Handicap

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “handicap”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF HANDICAP

WAC 162-04-010 is the relevant regulation, and it defines the term “handicap” as follows:

“Handicap” is short for the phrase “the presence of any sensory, mental, or physical handicap” used in the law against discrimination, and means the full phrase. See WAC 162-22-040.

WAC 162-04-010 (emphasis added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

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–gw

WSHRC Definition of Age

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “Age”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF AGE

WAC 162-04-010 is the relevant regulation, and it defines the term “Age” as follows:

“Age” means between forty and seventy years of age.

WAC 162-04-010 (emphasis added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

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–gw

WSHRC Quorum

by Gregory Williams, Esq. | Under Washington State law, what is a quorum within the Washington State Human Rights Commission (WSHRC)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

REVISED CODE OF WASHINGTON

Per the Revised Code of Washington, the WSHRC shall have the functions, powers, and duties “[t]o adopt, amend, and rescind suitable rules to carry out the provisions of … [the Washington Law Against Discrimination], and the policies and practices of the commission in connection therewith.” RCW 49.60.120.

WASHINGTON ADMINISTRATIVE CODE

Per the Washington Administrative Code, “[t]hree members constitute a quorum.” WAC 162-04-020. Accordingly, “[t]he affirmative vote of a majority of those present is action of the commission when there is a quorum at a meeting.” Id.

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–gw