September 2018 • WSHRC Digest

Reasonable Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning reasonable accommodation? 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 concerning reasonable accommodation. See WAC 162-22-065, 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).

REASONABLE ACCOMMODATION

WAC 162-22-065 is the relevant regulation, and it addresses reasonable accommodation as follows:

(1) Reasonable accommodation means measures that:

(a) Enable equal opportunity in the application process;
(b) Enable the proper performance of the particular job held or desired;
(c) Enable the enjoyment of equal benefits, privileges, or terms and conditions of employment.

(2) Possible examples of reasonable accommodation may include, but are not limited to:

(a) Adjustments in job duties, work schedules, or scope of work;
(b) Changes in the job setting or conditions of work;
(c) Informing the employee of vacant positions and considering the employee for those positions for which the employee is qualified.

WAC 162-22-065 (emphasis added) (hyperlinks added).

LEARN MORE

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

Methods of Obtaining Information

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning methods of obtaining information? 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 regulations regarding methods of obtaining information. See WAC 162-08-09501, 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).

METHODS OF OBTAINING INFORMATION¹

WAC 162-08-09501 is the relevant regulation, and it addresses methods of obtaining information as follows:

(1) Pursuant to RCW 49.60.140 and 49.60.240, as part of the investigative process, staff members of the commission may obtain information by one or more of the following methods: Subpoenas, oral questions, written questions and answers, requests for specific documents and records.

(2) Use of these methods is available only to commission staff. Since the investigation is an internal agency process, and not an adversarial proceeding, use of the methods for obtaining information described in subsection (1) of this section are available only to commission staff members.

(3) Scope of inquiry. Commission staff members may obtain information regarding any matter, not privileged, which is relevant to the complaint filed with the commission.

(4) Methods of obtaining information.

(a) Subpoena and subpoena duces tecum. Subpoenas may be issued by the chairperson of the commission, any member of the commission designated by the chairperson, the executive director, or any staff member designated by the executive director, to compel the appearance of any person to give information relevant to a complaint which is under investigation.

(i) Subpoenas may be served in any manner authorized by WAC 162-08-041 and RCW 49.60.140 for the service of papers generally.

(ii) Pursuant to RCW 49.60.170, witnesses shall be paid the same fees and mileage as are paid witnesses in the courts of this state, and by the same party who would pay if the proceeding were before a court of this state. Any person authorized to issue subpoenas who desires the attendance of a witness residing outside of the county in which attendance is desired, or more than twenty miles from the place where attendance is desired, may compel the attendance of the witness by subpoena accompanied by ten dollars, tickets or other arrangements for travel, or an appropriate mileage allowance if the witness agrees to travel by automobile, plus not less than one day’s per diem at the rate specified by law for witnesses required to attend court proceedings. The executive director may order additional amounts for meals, lodging, and travel as the executive director may deem reasonable for the attendance of the witness, consistent with RCW 5.56.010 and other statutes governing allowances for witnesses in the courts of this state, if the witness objects to the arrangements or amounts provided by the person issuing the subpoena.

(iii) The party who calls an expert witness shall pay the professional fee charged by the expert witness and all other costs of the expert’s testimony. If the other party’s or parties’ questioning of an expert witness exceeds the time taken by the party who requested the expert, they shall reimburse the party who called the expert witness for that portion of the fee charged by the expert witness and the other costs of the expert’s testimony.

(iv) Questions relating to subpoenas shall be addressed by the executive director. Motions relating to subpoenas shall be addressed by the executive director or chairperson of the commission pursuant to the procedures set forth in WAC 162-08-019.

(b) Oral questions and answers. Oral questions and answers may be taken in any reasonable manner at any time after a complaint has been filed with the commission, provided all parties are notified that the information may be transcribed and used as evidence in any hearing arising out of the matter under investigation.

(i) Oral questions and answers may be taken before a member of the commission‘s staff who is not involved in the investigation of the complaint or matter, or before a person who has been commissioned to administer oaths by the chairperson of the commission, or before any person who is a notary public.

(ii) Record of examination. Questions and answers may be recorded mechanically or video-taped.

(iii) If signature is not waived, the witness shall have five days after submission of the transcription of their answers to register desired changes and sign it, and if the witness does not sign in the time allowed, the recording official may, the officer may certify the accuracy of the transcription.

(iv) The recording officer shall certify the transcription in the manner provided in CR 30(f) and shall send or deliver the original transcript to the clerk, unsealed. The recording officer need not notify parties of the transmittal.

(v) Upon receipt of a transcription certified as above, the clerk shall examine it to verify that it has been certified, and if it has been, the clerk shall file it. A transcription that has been so filed is published and is available for any use to which a deposition may be put, except to the extent that use is limited by a protective order (see WAC 162-08-096).

(vi) Transcriptions may be used in the same manner as depositions may be used under the civil rules for superior court, particularly CR 32.

(vii) Errors and irregularities in question and answer procedure are waived unless they substantially prejudice a party and are promptly objected to.

(c) Written questions and answers. Any commission staff person may serve written questions and answers on any party to be answered under oath.

(i) Form. Each written question shall be followed by adequate space for the answer.

(ii) Time for answer. Written questions shall be answered within ten days after service, unless their number, together with others served by the commission within the last ten days, exceed twenty questions, in which event they shall be answered within twenty days.

(d) Production of documents and records. Any staff member authorized by the commission may request production of documents and records relevant to a matter under investigation and issue a subpoena duces tecum for the same material when not produced upon request.

Time for response. The party upon whom the request for production is served shall serve its written response within ten days, unless the parties have stipulated to, or the commission staff person has specified, a shorter or longer time.

¹ This section is intended to cover informal methods of obtaining information pursuant to RCW 49.60.140 and 49.60.240. When more formal methods of discovery are invoked, WAC 162-08-263 applies.

WAC 162-08-09501 (emphasis added) (hyperlinks added).

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–gw

Evidence — Efforts at Conciliation Excluded

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning efforts at conciliation? 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 evidence regulations regarding efforts at conciliation. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: EFFORTS AT CONCILIATION EXCLUDED

WAC 162-08-292 is the relevant regulation, and it addresses efforts at conciliation as follows:

. . .

(7) Efforts at conciliation excluded. Any endeavors or negotiations for conciliation made under RCW 49.60.240 shall not be received in evidence as proof of whether or not an unfair practice was committed. RCW 49.60.250(2). If a respondent denies that the statutory step of endeavoring to eliminate the unfair practice by conference, conciliation, and persuasion took place, then evidence of whether such endeavors were made may be admitted, but the contents and details of offers, counteroffers, and discussions shall be excluded to the maximum extent possible. The commission‘s findings made pursuant to RCW 49.60.240 are prima facie evidence that the investigation, conciliation, and other statutory steps have been taken. In addition, offers of settlement or compromise and statements made in settlement or compromise negotiations, at any stage of the case, are privileged from use as proof of whether or not an unfair practice was committed. Evidence of such an offer or statement shall be excluded upon claim of the privilege by the party that made the offer or statement.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Stipulations Encouraged

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning stipulations? 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 evidence regulations regarding stipulations. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: STIPULATIONS

WAC 162-08-292 is the relevant regulation, and it addresses stipulations as follows:

. . .

(3) Stipulations encouraged. Counsel are requested to mark proposed exhibits in advance of hearing and to stipulate to the admission of all exhibits that will not be objected to.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Copies of Documents & Exhibits

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning copies of documents and exhibits? 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 evidence regulations regarding copies of documents and exhibits. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: COPIES OF DOCUMENTS AND EXHIBITS

WAC 162-08-292 is the relevant regulation, and it addresses copies of documents and exhibits as follows:

. . .

(4) Copies of documents and exhibits. Unless excused from doing so by the administrative law judge, a party offering a document or other exhibit in evidence must furnish copies to all other parties.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Evaluation of Evidence

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning evaluation of evidence? 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 evidence regulations regarding evaluation of evidence. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: EVALUATION OF EVIDENCE

WAC 162-08-292 is the relevant regulation, and it addresses evaluation of evidence as follows:

. . .

(6) Evaluation of evidence. The administrative law judge’s findings of fact shall be based exclusively on the evidence presented at the administrative hearing and on matters officially noticed, but the administrative law judge may utilize his or her experience, technical competence, and specialized knowledge in evaluating the evidence.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — Identification of Exhibits

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning identification of exhibits? 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 evidence regulations regarding identification of exhibits. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: IDENTIFICATION OF EXHIBITS

WAC 162-08-292 is the relevant regulation, and it addresses identification of exhibits as follows:

. . .

(2) Identification of exhibits. All exhibits requested by any party shall be identified by a single series of numbers, in the order that the proposed exhibits are marked for identification. The numbers may be preceded by code letters indicating the acting party, including “C” for the commission, and “R” for a respondent. Example: The first exhibit, marked at the request of the commission, is C1. The second exhibit, if offered by a respondent, is R2, whether or not C1 was admitted.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Real Estate Transactions—Procedures

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning real estate transactions (procedures)? 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 real estate transactions (procedures). See WAC 162-08-09401, 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 statutory authority is established by RCW 49.60.240. See WAC 162-08-09401, WA State Legislature Website (bottom of page body)

REAL ESTATE TRANSACTIONS—PROCEDURES

WAC 162-08-09401 is the relevant regulation, and it addresses real estate transactions (procedures) as follows:

(1) Upon the filing of a complaint alleging an unfair practice in a real estate transaction, the commission shall serve notice upon the aggrieved person acknowledging such filing and advising the aggrieved person of the time limits and choice of forums provided under RCW 49.60.230 and 49.60.2235.

(2) The staff shall, not later than ten days after such filing or the identification of an additional respondent under this subsection, serve on the respondent(s) a notice identifying the alleged unfair practice and advising such respondent of the procedural rights and obligations of respondents under this chapter, together with a copy of the complaint.

(a) A person who is not named as a respondent in the course of investigation may be joined as an additional or substitute respondent upon written notice in accordance with subsection (2) of this section.

(b) In addition to meeting the requirements of subsection (2) of this section, such notice shall state the basis for the commission‘s belief that the person to whom the notice is addressed is properly joined as a respondent.

(3) Each respondent may file an answer to a complaint not later than ten days after receipt of notice from the commission.

(4) Subsequent to the filing of a complaint alleging an unfair practice in a real estate transaction under RCW 49.60.222 through 49.60.225, the commission shall commence proceeding with respect to the complaint within thirty days after receipt of the complaint.

(5) The commission shall complete its investigation of an allegation of an unfair practice in a real estate transaction within one hundred days of filing a duly prepared and signed complaint with the commission, unless it is impracticable to do so.

(6) If the commission is unable to complete the investigation of the complaint within one hundred days of filing, commission staff will advise the parties in writing of the reasons for not completing the investigation in the time allotted.

(7) The commission shall make final administrative disposition of a complaint alleging an unfair practice in a real estate transaction within one year of the date of receipt of the complaint, unless it is impracticable to do so. If the commission is unable to do so, it shall notify the parties in writing of the reasons therefor.

(8) The commission may also investigate unfair practices in a real estate transaction to determine whether a complaint should be brought by the commission itself pursuant to RCW 49.60.230 (1)(b).

WAC 162-08-09401 (emphasis added) (hyperlinks added).

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–gw

Evidence — Official Notice

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning official notice? 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 evidence regulations regarding official notice. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: OFFICIAL NOTICE

WAC 162-08-292 is the relevant regulation, and it addresses official notice as follows:

. . .

(5) Official notice. The administrative law judge may take notice of judicially cognizable facts, and in addition may take notice of general, technical, or scientific facts within his or her specialized knowledge. Any party may, by motion, ask the administrative law judge to take official notice of facts or material. When the administrative law judge takes official notice of any facts or material, the administrative law judge must notify the parties of what is noticed and afford them reasonable opportunity to contest the noticed facts. This may be done at any time before the administrative law judge’s order becomes final.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Evidence — General Rules on Admissibility

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the evidence regulations concerning general rules on admissibility? 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 evidence regulations regarding general rules on admissibility. See WAC 162-08-292, 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).

PRACTICE & PROCEDURE REGULATIONS: GENERAL RULES ON ADMISSIBILITY

WAC 162-08-292 is the relevant regulation, and it addresses general rules on admissibility as follows:

(1) General rules on admissibility. Administrative law judges shall admit and give probative effect to evidence that is admissible in the superior courts of the state of Washington in a nonjury trial. In addition, an administrative law judge may admit and give probative effect to other evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Administrative law judges shall give effect to the rules of privilege recognized in the courts of this state. Administrative law judges may exclude irrelevant, immaterial, and unduly repetitious evidence.

. . .

WAC 162-08-292 (emphasis added) (hyperlinks added).

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–gw

Relationship of Commission to Complainant

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning the relationship of the commission to complainant? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning relationship of the commission to complainant. See WAC 162-08-061, 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).

RCW 49.60.240

RCW 49.60.240 is additional statutory authority enabling the WSHRC to adopt rules concerning relationship of the commission to complainant. See WAC 162-08-061, WA State Legislature Website (bottom of page body). The text of the statute is as follows:

Complaint investigated—Procedure—Conference, conciliation—Agreement, findings—Rules.

(1)(a) Except as provided for in (c) of this subsection, after the filing of any complaint, the chairperson of the commission shall refer it to the appropriate section of the commission’s staff for prompt review and evaluation of the complaint. If the facts as stated in the complaint do not constitute an unfair practice under this chapter, a finding of no reasonable cause may be made without further investigation. If the facts as stated could constitute an unfair practice under this chapter, a full investigation and ascertainment of the facts shall be conducted.

(b) If the complainant has limitations related to language proficiency or cognitive or other disability, as part of the review and evaluation under (a) of this subsection, the commission’s staff must contact the complainant directly and make appropriate inquiry of the complainant as to the facts of the complaint.

(c) After the filing of a complaint alleging an unfair practice in a real estate transaction pursuant to RCW 49.60.222 through 49.60.225, the chairperson of the commission shall refer it to the appropriate section of the commission’s staff for prompt investigation and ascertainment of the facts alleged in the complaint.

(2) The investigation shall be limited to the alleged facts contained in the complaint. The results of the investigation shall be reduced to written findings of fact, and a finding shall be made that there is or that there is not reasonable cause for believing that an unfair practice has been or is being committed. A copy of the findings shall be provided to the complainant and to the person named in such complaint, hereinafter referred to as the respondent.

(3) If the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission’s staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion.

If an agreement is reached for the elimination of such unfair practice as a result of such conference, conciliation, and persuasion, the agreement shall be reduced to writing and signed by the respondent, and an order shall be entered by the commission setting forth the terms of said agreement. No order shall be entered by the commission at this stage of the proceedings except upon such written agreement, except that during the period beginning with the filing of complaints alleging an unfair practice with respect to real estate transactions pursuant to RCW 49.60.222 through 49.60.225, and ending with the filing of a finding of reasonable cause or a dismissal by the commission, the commission staff shall, to the extent feasible, engage in conciliation with respect to such complaint. Any conciliation agreement arising out of conciliation efforts by the commission shall be an agreement between the respondent and the complainant and shall be subject to the approval of the commission. Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the commission determines that disclosure is not required to further the purposes of this chapter.

If no such agreement can be reached, a finding to that effect shall be made and reduced to writing, with a copy thereof provided to the complainant and the respondent.

(4) The commission may adopt rules, including procedural time requirements, for processing complaints alleging an unfair practice with respect to real estate transactions pursuant to RCW 49.60.222 through 49.60.225 and which may be consistent with the federal fair housing amendments act of 1988 (42 U.S.C. Sec. 3601 et seq.), but which in no case shall exceed or be more restrictive than the requirements or standards of such act.

RCW 49.60.240.

RELATIONSHIP OF COMMISSION TO COMPLAINANT

WAC 162-08-061 is the relevant regulation, and it addresses the relationship of the commission to complainant as follows:

(1) Commission‘s role and objectives. In investigating cases the commission seeks to ascertain the facts in order to make an impartial finding of “reasonable cause” or “no reasonable cause.” It has no predisposition in favor of either complainants or respondents. If “reasonable cause” is found, then the objective of the commission is to obtain the remedy that will best eliminate the unfair practices and prevent their recurrence. The judgment as to what will eliminate an unfair practice for purposes of reaching an agreement under RCW 49.60.240 is made initially by the executive director, or other staff persons pursuant to the executive director‘s direction, and ultimately by the commissioners. The judgment as to what will eliminate an unfair practice and carry out the purposes of the human rights law after hearing under RCW 49.60.250 is made by the administrative law judge. The commission was not designed to compete with the courts as a forum for the vindication of private rights; its task is to work for the public good of eliminating and preventing discrimination. Although the facts and circumstances giving rise to a claim of discrimination may sometimes give rise to other claims based upon other statutes or principles of common law, the commission will investigate only claims of unfair practices arising under chapter 49.60 RCW et seq. The law against discrimination expressly preserves the right of complainants and/or aggrieved parties to seek other civil or criminal remedies in court or other available forums, either simultaneously with a complaint filed with the commission or in lieu of such a complaint, subject to any limitations or conditions provided in WAC 162-08-062 or elsewhere.

(2) Independence from complainant. The commission‘s primary objective is to eliminate and prevent discrimination, which may or may not be consistent with the goals or objectives of a particular complainant or aggrieved person. In negotiating a settlement or seeking an order, the commission generally works for provisions restoring the complainant as nearly as possible to the position he or she would be in if he or she had not been discriminated against, because this is usually an effective way to eliminate the discrimination and prevent its recurrence. But where, in the commission‘s judgment, provisions fully restoring the complainant (for instance, reinstatement to the job with back pay) would be inadequate to eliminate a pattern of discrimination, the commission will hold out for additional terms, even though the respondent is willing to settle on the basis of full relief for the complainant only. Except as may be otherwise provided for complaints alleging unfair practices in real estate transactions, the commission may determine that discrimination will be effectively eliminated and prevented by an order that does not afford the complainant every item of relief to which he or she may have a legal claim. The commission assumes that persons who complain to it are as interested in the elimination and prevention of discrimination in general as in their individual cases. If a person is interested only in relief for himself or herself, he or she is advised to seek his or her remedy directly in court pursuant to RCW 49.60.020, 49.60.030 and/or WAC 162-08-062.

WAC 162-08-061 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Structural Barriers to Accessibility

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning structural barriers to accessibility? 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 Public Accommodations (Disability Discrimination) regulations regarding structural barriers to accessibility. See WAC 162-26-100, 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).

PUBLIC ACCOMMODATIONS, DISABILITY DISCRIMINATION – STRUCTURAL BARRIERS TO ACCESSIBILITY

WAC 162-26-100 is the relevant regulation, and it addresses structural barriers to accessibility as follows:

(1) Laws requiring accessibility. The commission enforces the law against discrimination, chapter 49.60 RCW, not other state or federal laws. The commission provides the following references as guidance to places of public accommodation. The principal laws requiring that places of public accommodation be made accessible include, but are not limited to:

(a) The Washington State Building Code.

(b) Chapter 219, Laws of 1971 ex. sess.

(c) Chapter 35, Laws of 1967.

(d) RCW 35.68.075.

(e) United States law; including The Americans with Disabilities Act of 1990, codified at 42 U.S.C. 12101 et seq., the Rehabilitation Act of 1973, and the Federal Fair Housing Act.

(2) Practices that are not unfair. It is not an unfair practice under RCW 49.60.215 to operate a place of public accommodation with structural barriers to accessibility of the person with a disability when the structural barriers:

(a) Were lawful when constructed; and

(b) Are presently lawful under the state building code and other law outside of the law against discrimination.

This exemption does not relieve the operator of a place of public accommodation of the duty to make reasonable accommodation to the needs of disabled persons as described in WAC 162-26-080.

(3) When required by law. It is an unfair practice under RCW 49.60.215:

(a) To deny service to any person because of a barrier to accessibility when accessibility is required by law;

(b) To build or remodel in a way that does not comply with requirements of law on accessibility;

(c) To operate a place of public accommodation that is out of compliance with a law requiring accessibility;

(d) To fail to maintain or fail to continue the accessibility of a place of public accommodation that was required by law to be accessible when it was built, remodeled, or rehabilitated.

(4) Nonstructural changes. It is an unfair practice under RCW 49.60.215 for a person who is making nonstructural changes in a place of public accommodation to fail to eliminate barriers to same service when this can be done without substantially changing the scope or cost of the project or requiring structural changes that are not otherwise required by law. Specifically, it is an unfair practice:

(a) When installing a nonstructural fixture or component, to choose and install one that is not accessible to the person with a disability or that makes the place of public accommodation less accessible to the person with a disability.

(b) When replacing a nonstructural fixture or component, to replace it with one that is not accessible to the person with a disability or one that makes the place of public accommodation less accessible to the person with a disability.

(c) When relocating a nonstructural fixture or component, to relocate it to a place that is not accessible to the person with a disability, unless no suitable place is accessible.

(d) When modifying a nonstructural fixture or component, to do so in a way that does not eliminate barriers to the person with a disability, when possible.

WAC 162-26-100 (emphasis added) (hyperlinks added).

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–gw

Real Estate Transactions — Definition of Brokerage Services

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Real Estate Transactions Regulations, what is the definition of “brokerage services“? 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 “brokerage services.” 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 BROKERAGE SERVICES

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

(1) “Brokerage services” means access to or membership or participation in a multiple-listing service, real estate brokers’ organization or other service, organization, or facility relating to the business of selling or renting dwellings.

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

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–gw

Complaints by Aggrieved Persons

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning complaints by aggrieved persons? 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 complaints by aggrieved persons. See WAC 162-08-071, 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 statutory authority is established by RCW 49.60.240 and RCW 34.04.020. See WAC 162-08-071, WA State Legislature Website (bottom of page body)

COMPLAINTS BY AGGRIEVED PERSONS

WAC 162-08-071 is the relevant regulation, and it addresses complaints by aggrieved persons as follows:

(1) Scope of section. This section applies to complaints by persons claiming to be aggrieved by an alleged unfair practice filed under RCW 49.60.230 (1)(a), to complaints by employers or principals filed under RCW 49.60.230 (1)(c), and to complaints by “aggrieved persons” under RCW 49.60.040(15). Complaints issued by the commission are covered by WAC 162-08-072.

(2) Signature and oath. A complaint shall be in writing, signed by the complainant or the complainant’s lawyer, and sworn to before a notary public or other person authorized by law to administer oaths, or subscribed and signed under the following declaration: “I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct.” Notarial service for this purpose is available without charge at all offices of the commission.

(3) Contents. A complaint shall contain the following:

(a) The name of the person making the complaint;

(b) The name, address and telephone number, if any, of the person against whom the complaint is made, if known to the complainant;

(c) A specific charge of an unfair practice(s);

(d) A clear and concise statement of the facts which constitute the alleged unfair practice(s);

(e) The date or dates of the alleged unfair practice(s), and if the alleged unfair practice is of a continuing nature, the dates between which said continuing acts of discrimination are alleged to have occurred.

(4) Forms. Printed complaint forms are available at all commission offices.

(5) Time for filing. For claims alleging an unfair practice in a real estate transaction under RCW 49.60.222 through 49.60.225, the complaint must be filed with the commission not later than one year after the alleged unfair practice occurred or was terminated. In all other unfair practice claims, the complaint must be filed within six months after the date of occurrence of the alleged unfair practice(s). RCW 49.60.230. If the alleged unfair practice is of a continuing nature, the date of the occurrence of the unfair practice shall be deemed to be any date subsequent to the commencement of the alleged unfair act up to and including the date when the alleged unfair practice stopped.

(6) Computation of time. The one-year period for filing a complaint alleging an unfair practice in a real estate transaction expires at 5:00 p.m. on the day before the corresponding day of the year following the event. The six-month period for filing a complaint alleging any other unfair practice expires at 5:00 p.m. on the day before the corresponding day of the sixth month following the event. If the last day of the filing period is a Saturday, Sunday, or legal holiday, the time expires at 5:00 p.m. on the next day which is not a Saturday, Sunday, or legal holiday. For example, a complaint of an event occurring on 5 January would ordinarily have to be filed by 5:00 p.m. on 4 July, but since 4 July is a legal holiday, the time for filing the complaint would expire at 5:00 p.m. on 5 July, or at 5:00 p.m. Monday, if 5 July comes on a Saturday or Sunday.

(7) Technical defects. A complaint shall not be considered defective if the defect is technical and can be corrected by subsequent amendment. The statutory requirements set forth in RCW 49.60.230, including the requirement of a signature under oath, are jurisdictional and failure to comply cannot be corrected by subsequent amendment.

WAC 162-08-071 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Use of Trained Dog Guide or Service Animal

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning use of a trained dog guide or service animal? 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 Public Accommodations (Disability Discrimination) regulations regarding use of a trained dog guide or service animal. See WAC 162-26-130, 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).

PUBLIC ACCOMMODATIONS, DISABILITY DISCRIMINATION – USE OF TRAINED DOG GUIDE OR SERVICE ANIMAL

WAC 162-26-130 is the relevant regulation, and it addresses use of a trained dog guide or service animal as follows:

(1) Coverage of statute. RCW 49.60.215 requires fair service in a place of public accommodation “regardless of . . . the use of a trained dog guide or service animal by a disabled person . . .” as well as because of disability itself.

(2) Same rules apply. All of the rules of this chapter with respect to disability itself apply equally to service of a person with a disability who is using a trained dog guide or service animal. See particularly WAC 162-26-060 and 162-26-070.

WAC 162-26-130 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Unfair to Request or Require Waiver of Rights

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning requesting or requiring waiver of rights? 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 Public Accommodations (Disability Discrimination) regulations regarding requesting or requiring waiver of rights. See WAC 162-26-140, 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).

PUBLIC ACCOMMODATIONS, DISABILITY DISCRIMINATION – UNFAIR TO REQUEST OR REQUIRE WAIVER OF RIGHTS

WAC 162-26-140 is the relevant regulation, and it addresses requesting or requiring waiver of rights as follows:

This section is intended to prohibit waivers on the basis of disability, but is not intended to preclude waivers required on a nondiscriminatory basis.

(1) It is an unfair practice for any person to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a disabled person.

(2) It is an unfair practice to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a disabled person using a dog guide or service animal.

WAC 162-26-140 (emphasis added) (hyperlinks added).

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–gw

Public Access To Records

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning public access to records? 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 regulations regarding public access to records . See WAC 162-04-030, 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).

PUBLIC ACCESS TO RECORDS

WAC 162-04-030 is the relevant regulation, and it addresses public access to records as follows:

(1) Records available.

(a) General rule and exceptions. All public records as defined by chapter 42.17 RCW (this includes photographs, tapes, and other materials as well as written documents) prepared, owned, used or retained by the Washington state human rights commission shall be available for public inspection and copying during normal office hours in the office where they are located, except for the following:

(i) Personal information in files maintained for the commission‘s employees or members to the extent that disclosure would violate their right to privacy.

(ii) The file, except for the complaint, compiled in investigating a complaint filed under RCW 49.60.230, during the time until a finding as provided by RCW 49.60.240 or settlement is adopted by the commission or the case is referred to the attorney general for preparation for public hearing. Specific records in the file may be kept sealed and not made available after this time if the executive director has issued a protective order which states the general nature of the records and the reason why they are not open to inspection, and the records are exempt from public inspection under RCW 42.17.310.

(iii) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended, except that a specific record shall not be exempt when publicly cited by the commission or another agency in connection with any agency action.

(iv) Records which are relevant to a controversy to which the commission is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(v) Any other information which is exempt from public inspection under RCW 42.17.310 and where disclosure would violate personal privacy or vital government interest.

(b) Conditions which override the exceptions. Even where it comes within one of the above exceptions to public access, a particular record shall nevertheless be available for inspection and copying if:

(i) Its disclosure would not violate personal privacy or impair a vital governmental interest;

(ii) The information which would violate personal privacy or impair a vital governmental interest can be deleted from the record; or

(iii) The record contains statistical information not descriptive of any readily identifiable person or persons.

(2) Copying. Persons may copy any record which may be inspected. In offices where a copying machine is kept by the commission, machine copies shall be made available to a person on request. No charge shall be made for up to ten sheets in connection with a single request, but ten cents a sheet shall be charged for each sheet beyond ten. Copying facilities may be denied when making them available would unreasonably disrupt the operation of the office, because of the volume of copying or other valid reasons. The absence or unavailability of agency copying facilities shall be given weight in determining whether there are special circumstances justifying removal of a record from the office as provided in subsection (3) of this section.

(3) Protection of records. No record shall be allowed to be removed from a commission office by anyone other than a staff member or other officially authorized person unless special circumstances make the removal necessary or desirable, and protection of the record is reasonably assured. Before such removal is allowed a receipt itemizing the contents of the record and giving the address and telephone number of the place where it will be kept shall be signed by the person taking the record and approved in writing by the person in charge of the office or division responsible for the record.

(4) Personnel records. Requests for inspection of materials in the personnel files of commission employees or members shall be referred to the executive director, or in his or her absence, the deputy director, and promptly acted upon by him or her. When inspection is denied, it shall be the responsibility of the person making that decision to issue within twenty-four hours the written statement required by RCW 42.17.310(4) and 42.17.320 identifying RCW 42.17.310 (1)(b) as the exemption authorizing withholding of the record, and explaining how inspection of the record would violate the employee’s or commissioner’s right of privacy. The decision of the executive director or deputy director shall be final agency action for purposes of judicial review.

(5) Other records; review of denial. Requests for inspection of records not in the personnel files of commission employees or members (that is, not covered by subsection (4) of this section) shall be acted upon immediately by the staff person who has charge of the record at the time the request is made. When that person believes that a request to inspect a record must be denied, he or she shall immediately contact his or her supervisor by telephone and obtain concurrence from the supervisor before denying inspection. The supervisor shall then issue, or cause to be issued, the written statement required by RCW 42.17.310(4) and chapter 42.17 RCW identifying the specific exemption authorizing the withholding of the record (or part) and briefly explaining how the exemption applies to the record withheld. A copy of the statement shall be immediately delivered or mailed to the deputy director.

(6) Interpretation. It is the policy of the Washington state human rights commission to carry out the spirit as well as the letter of chapter 42.17 RCW, and thus to afford the public maximum access to its records, subject to necessary respect for the right of individuals to privacy and the need for efficient administration of government. This regulation shall be interpreted in light of that spirit and this policy.

WAC 162-04-030 (emphasis added) (hyperlinks added).

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–gw