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Ethics & Conflicts of Interest

Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning ethics and conflicts of interest? Here’s my point of view.

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THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt guidelines regarding ethics and conflicts of interest. See WAC 162-04-050, 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 provided by RCW 42.18.250, 49.60.120, and chapter 49.60 RCW. See WAC 162-04-050, WA State Legislature Website (bottom of page body).

ETHICS AND CONFLICTS OF INTEREST

WAC 162-04-050 is the relevant regulation, and it addresses ethics and conflicts of interest as follows:

(1) Purpose. This section is intended to guide the commission‘s staff and commissioners on official ethics, and to carry out the policies and purposes of chapter 42.18 RCW, the Executive Conflict of Interest Act, as provided in RCW 42.18.250.

(2) General rule. It is the duty of all employees of the commission and of all commissioners to maintain the highest standard of ethics in all official actions, and specifically to comply strictly with the requirements of the Executive Conflict of Interest Act, chapter 42.18 RCW.

(3) Specific matters. The following applications of the rule are for guidance on common problems and are to serve as examples for extension by analogy; they are not a complete catalog of applications of the general rule:

(a) Dealing with parties. No commission employee who has duties with respect to a complaint pending before the commission shall deal in any way with the complainant or respondent, on a business or personal basis, except for routine transactions done on the same basis as other members of the public transact business with the party. An employee may continue to deal privately with a public utility or continue to shop at a party’s store, if the employee deals with appropriate customer service representatives or salespersons and does not identify his or her official position or mix official business into the transaction. In circumstances unlike these, employees shall either not deal with parties or shall report the matter to the employee’s supervisor, who shall relieve the employee of responsibility for the case. Commissioners who have nonroutine dealings with parties shall abstain from voting or other action on the matter.

(b) Accepting things of value. No commission employee or commissioner shall accept anything of economic value from a party to a complaint before the commission, or from any other person who is dealing with the commission, except under circumstances permitted in RCW 42.18.190. Permitting another person to pay for an employee’s lunch is within the prohibition of this paragraph, but accepting a cup of coffee under normal office hospitality is not. If the coffee is ordered in a restaurant the prohibition of this section applies.

(c) Honoraria for speaking. If the speaking engagement is within the course of a person’s official duties, acceptance of an honorarium or other compensation is prohibited. RCW 42.18.190. Payment of travel expenses and living expenses while traveling, or reimbursement of the commission for these expenses, is not prohibited, if the trip and payment arrangement have been approved by the employee’s supervisor. It is not necessary for a person who is on the program to pay for a meal that is served, or for the price of admission to the seminar, where the custom is to not charge persons on the program for the meal at which they are speaking, or for admission to the seminar. The prohibitions of this subparagraph do not apply to commissioners, because speaking outside of commission meetings is not a duty of commissioners.

(d) Job offers. No employee of the commission shall make or continue an application or request for employment with a party to a case or other matter before the commission while the employee has official duties with respect to that case or matter. If any employee is assigned a case or matter while he or she has an application pending for employment with a party to the case or matter, the employee shall either withdraw the application or report the facts to his or her supervisor. The executive director shall determine whether to relieve the employee from further responsibility for the case or matter. If any employee receives and considers a job offer from a party to a case or other matter pending before the commission with which the employee has official responsibilities, the employee shall report the facts to his or her supervisor and the supervisor shall relieve the employee from any further responsibility for the case or matter.

(4) Indirect transactions. These rules and the Executive Conflict of Interest Act apply to conflicts of interest and ethical problems whether they come directly or indirectly through members of a person’s family, through corporations of which the employee is an officer, director, trustee, partner, or employee, or through other means.

WAC 162-04-050 (emphasis and hyperlinks added).

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If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney 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; Williams Law Group; or the author of this article. Please see our DISCLAIMER.

–gw

WSHRC Membership Structure

Under Washington State law, what is the membership structure of the Washington State Human Rights Commission (WSHRC)? Here’s my point of view.

The membership structure of the WSHRC is laid out in both the Revised Code of Washington (RCW) and the Washington Administrative Code (WAC).

DEFINITION OF RCW & WAC

According to the WA State Legislature Website, the Revised Code of Washington (RCW) is defined as follows:

[A] collection of Session Laws (enacted by the Legislature, and signed by the Governor, or enacted via the initiative process), arranged by topic, with amendments added and repealed laws removed.

Id. And the Washington Administrative Code (WAC) is defined as follows:

Regulations of executive branch agencies are issued by authority of statutes. Like legislation and the Constitution, regulations are a source of primary law in Washington State. The WAC codifies the regulations and arranges them by subject or agency.

Id.

MEMBERSHIP STRUCTURE PER RCW

Per the RCW:

One of the original members of the WSHRC shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, one for a term of five years, but their successors shall be appointed for terms of five years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom the individual succeeds.

RCW 49.60.060.

Members “shall eligible for reappointment.” Id. Vacancies “in the commission shall be filled within thirty days, the remaining members to exercise all powers of the commission.” Id. (hyperlink added). And “[a]ny member of the commission may be removed by the governor for inefficiency, neglect of duty, misconduct or malfeasance in office, after being given a written statement of the charges and an opportunity to be heard thereon.” Id. (hyperlink added).

Importantly, as will be noted below, the WSHRC shall also have the function, power, and duty “[t]o appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.” RCW 49.60.120 (emphasis added and hyperlink added).

MEMBERSHIP STRUCTURE PER WAC

Per the WAC, the WSHRC “consists of five members, one of whom is designated as chairperson, appointed by the governor for staggered five-year terms.” WAC 162-04-020. “The executive director is the chief executive. He or she is responsible for carrying out the commission‘s programs and directing the commission‘s staff.” Id. (emphasis and hyperlinks added).

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–gw

WSHRC Functions, Powers, & Duties

Under Washington State law, what are the functions, powers, and duties of the Washington State Human Rights Commission (WSHRC)? Here’s my point of view.

The functions, powers, and duties of the WSHRC are provided in both the Revised Code of Washington (RCW) and the Washington Administrative Code (WAC) and may be categorized as follows:

I. The RCW Basics;

II. Advisory Agencies & Conciliation Councils;

III. Hold Hearings & Subpoena Witnesses; and

IV. The WAC Basics.

I. THE RCW BASICS

The RCW enumerates the basic WSHRC functions, powers, and duties as follows:

(1) To appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.

(2) To obtain upon request and utilize the services of all governmental departments and agencies.

(3) To 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.

(4) To receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in this chapter.

(5) To issue such publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of sex, sexual orientation, race, creed, color, national origin, marital status, 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.

(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies.

(7) To cooperate and act jointly or by division of labor with the United States or other states, with other Washington state agencies, commissions, and other government entities, and with political subdivisions of the state of Washington and their respective human rights agencies to carry out the purposes of this chapter. However, the powers which may be exercised by the commission under this subsection permit investigations and complaint dispositions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter. The commission may perform such services for these agencies and be reimbursed therefor.

(8) To foster good relations between minority and majority population groups of the state through seminars, conferences, educational programs, and other intergroup relations activities.

RCW 49.60.120.

II. ADVISORY AGENCIES & CONCILIATION COUNCILS (RCW)

In addition, the RCW mandates WSHRC powers regarding advisory agencies and conciliation councils as follows:

[T]o create such advisory agencies and conciliation councils, local, regional, or statewide, as in its judgment will aid in effectuating the purposes of this chapter. The commission may empower them to study the problems of discrimination in all or specific fields of human relationships or in specific instances of discrimination because of sex, race, creed, color, national origin, 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; to foster through community effort or otherwise good will, cooperation, and conciliation among the groups and elements of the population of the state, and to make recommendations to the commission for the development of policies and procedures in general and in specific instances, and for programs of formal and informal education which the commission may recommend to the appropriate state agency.

RCW 49.60.130.

III. HOLD HEARINGS & SUBPOENA WITNESSES (RCW)

Per RCW, the WSHRC also “has power to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the commission.” RCW 49.60.140.

And “[t]he commission may make rules as to the issuance of subpoenas by individual members, as to service of complaints, decisions, orders, recommendations and other process or papers of the commission, its member, agent, or agency, either personally or by registered mail, return receipt requested, or by leaving a copy thereof at the principal office or place of business of the person required to be served.” Id.

IV. THE WAC BASICS

Lastly, according to the WAC, it’s the WSHRC’s “duty to administer the law against discrimination, chapter 49.60 RCW, which has as its purpose the elimination and prevention of discrimination because of race, creed, color, national origin, sex, marital status, age or handicap.” Additional authority and duties include the following:

(a) Study and report on all things having an impact on human rights;

(b) Make recommendations to the governor, legislature, and agencies of state and local government;

(d) In the areas of employment, public accommodations, real property transactions, credit transactions and insurance transactions, initiate, receive and process complaints of unfair practices, hold hearings, issue orders, and seek enforcement of the orders in court.

WAC 162-04-020.

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–gw

Practice and Procedure Definitions – Person

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

DEFINITION OF PERSON: WAC

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

“Person” has the broad meaning given the word in RCW 49.60.040. It includes the commission.

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

DEFINITION OF PERSON: RCW

Pursuant to the rule above, the term “Person” as defined in RCW 49.60.040 is as follows, unless the context clearly requires otherwise:

(19) “Person” includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

Id. (emphasis 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

Real Estate Transactions — Definition of Real Estate Transaction

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Real Estate Transactions Regulations, what is the definition of “real estate transaction“? 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 “real estate transaction.” 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 REAL ESTATE TRANSACTION

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

(4) “Real estate transaction” includes the sale, appraisal, brokering, exchange, purchase, rental, or lease of real property; transacting or applying for a real estate loan; the provision of brokerage services; or the making or purchasing of loans secured by residential real estate[.]

WAC 162-36-001(4) (emphasis added) (hyperlinks added).

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–gw

Employment–Handicapped Persons–Unfair Practice

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning unfair practice? 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 unfair practice. See WAC 162-22-025, 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).

UNFAIR PRACTICE

WAC 162-22-025 is the relevant regulation, and it addresses unfair practice as follows:

It is an unfair practice for any employer, employment agency, labor union, or other person to:

(1) Refuse to hire, discharge, bar from employment, or otherwise discriminate against an able worker with a disability or because of the use of a trained dog guide or service animal by an able worker with a disability; or

(2) Fail or refuse to make reasonable accommodation for an able worker with a disability or the use of a trained dog guide or service animal by an able worker with a disability, unless to do so would impose an undue hardship (please see WAC 162-22-065 and 162-22-075); or

(3) Refuse to hire or otherwise discriminate against an able worker with a disability because the employer would be subject to the requirements of this chapter if the person were hired, promoted, etc.

WAC 162-22-025 (emphasis added) (hyperlinks added).

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–gw

Pregnancy, Childbirth, and Pregnancy Related Conditions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sex Discrimination Regulations, what are the rules concerning pregnancy, childbirth, and pregnancy related conditions? 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 pregnancy, childbirth, and pregnancy related conditions. See WAC 162-30-020, 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).

PREGNANCY, CHILDBIRTH, AND PREGNANCY RELATED CONDITIONS

WAC 162-30-020 is the relevant regulation, and it addresses pregnancy, childbirth, and pregnancy related conditions as follows:

(1) Purposes. The overall purpose of the law against discrimination in employment because of sex is to equalize employment opportunity for men and women. This regulation explains how the law applies to employment practices that disadvantage women because of pregnancy or childbirth.

(2) Findings and definitions. Pregnancy is an expectable incident in the life of a woman. Discrimination against women because of pregnancy or childbirth lessens the employment opportunities of women.

(a) “Pregnancy” includes, but is not limited to, pregnancy, the potential to become pregnant, and pregnancy related conditions.

(b) “Pregnancy related conditions” include, but are not limited to, related medical conditions, miscarriage, pregnancy termination, and the complications of pregnancy.

(3) Unfair practices.

(a) It is an unfair practice for an employer, because of pregnancy or childbirth, to:

(i) Refuse to hire or promote, terminate, or demote, a woman;
(ii) Impose different terms and conditions of employment on a woman.

(b) The sole exception to (a) of this subsection is if an employer can demonstrate business necessity for the employment action. For example, an employer hiring workers into a training program that cannot accommodate absences for the first two months might be justified in refusing to hire a pregnant woman whose delivery date would occur during those first two months.

(c) It is an unfair practice to base employment decisions or actions on negative assumptions about pregnant women, such as:

(i) Pregnant women do not return to the job after childbirth;
(ii) The time away from work required for childbearing will increase the employer’s costs;
(iii) The disability period for childbirth will be unreasonably long;
(iv) Pregnant women are frequently absent from work due to illness;
(v) Clients, co-workers, or customers object to pregnant women on the job;
(vi) The terms or conditions of the job may expose an unborn fetus to risk of harm.

(4) Leave policies.

(a) An employer shall provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth. Employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disabilities. For example:

(i) If an employer provides paid leave for sickness, or other temporary disabilities, the employer should provide paid leave for pregnancy related sickness or disabilities;
(ii) If the uniform policy requires a physician’s statement to verify the leave period, a physician’s statement may be required to verify the leave period relating to pregnancy or childbirth.
(iii) If the uniform policy permits the retention and accrual of benefits, such as seniority, retirement, and pension rights, during the leave period for other temporary disabilities, the policy must also permit it during leave for pregnancy related temporary disabilities.
(iv) If the employer permits extensions of leave time (e.g., use of vacation or leave without pay) for sickness or other temporary disabilities, the employer should permit such extensions for pregnancy related sickness or disabilities.

(b) There may be circumstances when the application of the employer’s general leave policy to pregnancy or childbirth will not afford equal opportunity for women and men. One circumstance would be where the employer allows no leave for any sickness or other disability by any employee, or so little leave time that a pregnant woman must terminate employment. Because such a leave policy has a disparate impact on women, it is an unfair practice, unless the policy is justified by business necessity.

(c) An employer shall allow a woman to return to the same job, or a similar job of at least the same pay, if she has taken a leave of absence only for the actual period of disability relating to pregnancy or childbirth. Refusal to do so must be justified by adequate facts concerning business necessity.

(d) Employers may be required to provide family medical leave, in addition to leave under this chapter. Please see appropriate federal and state family and medical leave laws and regulations.

(5) Employee benefits. Employee benefits provided in part or in whole by the employer must be equal for male and female employees. For example, it is an unfair practice to:

(a) Provide full health insurance coverage to male employees but fail to provide full health insurance coverage, including pregnancy and childbirth, to female employees.

(b) Provide maternity insurance to the wives of male employees but fail to provide the same coverage to female employees.

(6) Marital status immaterial. The provisions of this chapter apply irrespective of marital status.

(7) Labor unions and employment agencies. The provisions of this chapter apply equally to employers, labor unions, and employment agencies.

WAC 162-30-020 (emphasis added) (hyperlinks added).

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–gw

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).

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–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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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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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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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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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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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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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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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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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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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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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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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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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

Public Accommodations — Requirements of Other Law

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning requirements of other law? 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 requirements of other law. See WAC 162-26-120, 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 – REQUIREMENTS OF OTHER LAW

WAC 162-26-120 is the relevant regulation, and it addresses requirements of other law as follows:

(1) Guidance. Failure to meet requirements of related law protecting persons with disabilities in places of public accommodation may be evidence of an unfair practice under RCW 49.60.215. The commission may refer to standards established in related law for guidance in determining whether an unfair practice under RCW 49.60.215 has occurred.

(2) References to selected laws. Related law may include, but is not limited to:

(a) Chapter 28A.13 RCW (education for handicapped children);
(b) Sections 503 and 504 of the United States Rehabilitation Act of 1973, 29 U.S.C. §§793 and 794;
(c) Chapter 70.84 RCW, the “white cane law”;
(d) Chapter 2.42 RCW (Interpreters in legal proceedings);
(e) The Washington State Building Code;
(f) The Americans with Disabilities Act of 1990;
(g) The Individuals with Disabilities Education Act;
(h) The Air Carriers Access Act;
(i) The Federal Fair Housing Act.

WAC 162-26-120 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Behavior Causing Risk

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning behavior causing risk? 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 behavior causing risk. See WAC 162-26-110, 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 – BEHAVIOR CAUSING RISK

WAC 162-26-110 is the relevant regulation, and it addresses behavior causing risk as follows:

(1) Proviso interpreted. This section interprets the following proviso of RCW 49.60.215:

“Provided, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.”

(2) General rule. It is not an unfair practice under RCW 49.60.215 to deny a person service in a place of public accommodation because that person’s behavior or actions constitute a risk to property or other persons.

(3) Individual judgment required. To come within this exception, the denial of service must be based on knowledge of the present behavior or actions of the individual who is not served. It is an unfair practice to exclude all persons who have a disability or who have a particular disability unless the operator of the place of public accommodation can show that all persons with the disability will present a risk to persons or property.

(4) Likelihood of injury. Risk to property or other persons must be immediate and likely, not remote or speculative.

(5) Degree of risk. Risk of injury to persons may be given more weight than risk of injury to property. Risk of severe injury may be given more weight than risk of slight injury.

(6) Risk to person with a disability. Risk to the person with a disability is not a reason to deny service. Law other than the law against discrimination governs liability for injury to customers with a disability. The law against discrimination affects tort liability only insofar as it includes persons with a disability within the public for which public accommodations must be made safe.

(7) Annoyance to staff or other customers. Annoyance on the part of staff or customers of the place of public accommodation at the abnormal appearance or behavior of a person with a disability is not a “risk to property or other persons” justifying nonservice.

(8) Least discriminatory solution required. It is an unfair practice to deny a person with a disability the enjoyment of an entire place of public accommodation because the person presents a risk of injury when using part of the place. When risk justifies not serving a person with a disability in the same way or same place as other customers, the person should be served through reasonable accommodation (WAC 162-26-060, 162-26-080), if possible.

WAC 162-26-110 (emphasis added) (hyperlinks added).

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–gw

Public Accommodation — Reasonable Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) 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 Public Accommodations (Disability Discrimination) regulations regarding reasonable accommodation. See WAC 162-26-080, 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 – REASONABLE ACCOMMODATION

WAC 162-26-080 is the relevant regulation, and it addresses reasonable accommodation as follows:

(1) Unfair practice to not accommodate. It is an unfair practice for a person in the operation of a place of public accommodation to fail or refuse to make reasonable accommodation to the known physical, sensory, or mental limitations of a person with a disability or to the use of a trained dog guide or service animal by a disabled person, when same service would prevent the person from fully enjoying the place of public accommodation.

(2) Determining reasonableness. Whether a possible accommodation is reasonable or not depends on the cost of making the accommodation, the size of the place of public accommodation, the availability of staff to make the accommodation, the importance of the service to the person with a disability, and other factors bearing on reasonableness in the particular situation.

(3) Carrying not favored. Carrying a mobility-impaired person is not required by law and is not an acceptable accommodation, except in rare circumstances. Carrying should be done only when there is no other way for the mobility-impaired person to use the facility and when it is agreeable to the person with a disability.

(4) “Arranged service.” The concept of “arranged service,” as formerly defined in commission rules, is incorporated fully within the scope of reasonable accommodation.

WAC 162-26-080 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — General Rules

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the general rules? 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 general rules. See WAC 162-26-070, 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 – GENERAL RULES

WAC 162-26-070 is the relevant regulation, and it addresses general rules as follows:

These rules apply except where exempted by RCW 49.60.215 for structural changes or behavior causing risk, or excepted by ruling of the commissioners under WAC 162-06-030. It is an unfair practice under RCW 49.60.215 for any person in the operation of a place of public accommodation, because of disability or use of a trained dog guide or service animal:

(1) To refuse to serve a person;

(2) To charge for reasonably accommodating the special needs of a disabled person;

(3) To require a disabled person accompanied by a trained dog guide or service animal in any of the places listed in RCW 70.84.010(3) to pay an extra charge for the trained dog guide or service animal;

(4) To treat a disabled person as not welcome, accepted, desired, or solicited the same as a nondisabled person;

(5) To segregate or restrict a person or deny a person the use of facilities or services in connection with the place of public accommodation where same service is possible without regard to the disability; or

(6) To fail to reasonably accommodate the known physical, sensory, or mental limitations of a disabled person, when same service would prevent the person from fully enjoying the place of public accommodation, as provided in WAC 162-26-080.

WAC 162-26-070 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — General Principles

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning general principles? 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 general principles. See WAC 162-26-060, 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 – GENERAL PRINCIPLES

WAC 162-26-060 is the relevant regulation, and it addresses general principles as follows:

(1) Same service preferred. The purposes of the law against discrimination are best achieved when disabled persons are treated the same as if they were not disabled. The legislature expresses this policy in RCW 49.60.215 with the words “regardless of.” Persons should, if possible, be treated without regard to their disability or use of a dog guide or service animal. This is called “same service” in this chapter.

(2) Reasonable accommodation. The law protects against discrimination because of the “presence” of a disability. It does not prohibit treating disabled persons more favorably than nondisabled persons in circumstances where same service will defeat the purposes of the law against discrimination.

For example, this would be true if persons in wheelchairs and nondisabled persons are equally entitled to use the stairway to reach the second floor of a store. In such circumstances, the operator of the place of public accommodation should use the next best solution: Reasonable accommodation.

A reasonable accommodation would be to permit the shopper in the wheelchair to use an elevator to reach the second floor, even though the public in general is not permitted to use the elevator. If there is no elevator and no other safe and dignified way for the customer to reach the second floor, another reasonable accommodation would be to bring merchandise requested by the customer to the first floor. Reasonable accommodations may also include, but are not limited to, providing sign language interpreters and making printed materials available in alternate formats.

(3) Overall objective. People with disabilities must be afforded the full enjoyment of places of public accommodation to the greatest extent practical.

WAC 162-26-060 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Scope of Chapter

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning the scope of chapter? 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 the scope of chapter. See WAC 162-26-010, 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 – SCOPE OF CHAPTER

WAC 162-26-010 is the relevant regulation, and it addresses the scope of chapter as follows:

This chapter interprets and implements the disability discrimination coverage of RCW 49.60.215, unfair practices of places of public resort, accommodation, assemblage, and amusement. This chapter does not define the scope of the civil right to be free from discrimination because of disability declared in RCW 49.60.030 or interpret other statutes.

WAC 162-26-010 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Dog Guide

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of dog guide? 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 defining the term dog guide. See WAC 162-26-040, 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).

DEFINITION OF DOG GUIDE

WAC 162-26-040 is the relevant regulation, and it defines the term dog guide as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Dog guide” means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Structural

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of structural? 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 defining the term structural. See WAC 162-26-040, 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).

DEFINITION OF STRUCTURAL

WAC 162-26-040 is the relevant regulation, and it defines the term structural as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Structural” means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations, or fittings. Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators. Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting or other floor covers.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Service

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of service? 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 defining the term service. See WAC 162-26-040, 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).

DEFINITION OF SERVICE

WAC 162-26-040 is the relevant regulation, and it defines the term service as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Service” means everything available to persons from a place of public accommodation.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Same Service

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of same service? 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 defining the term same service. See WAC 162-26-040, 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).

DEFINITION OF SAME SERVICE

WAC 162-26-040 is the relevant regulation, and it defines the term same service as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Same service” means service without regard to the existence of a disability. See WAC 162-26-060.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Reasonable Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of 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 Public Accommodations (Disability Discrimination) regulations defining the term reasonable accommodation. See WAC 162-26-040, 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).

DEFINITION OF REASONABLE ACCOMMODATION

WAC 162-26-040 is the relevant regulation, and it defines the term reasonable accommodation as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Reasonable accommodation” means action, reasonably possible in the circumstances, to make the regular services of a place of public accommodation accessible to persons who otherwise could not use or fully enjoy the services because of the person’s sensory, mental, or physical disability. See WAC 162-26-080.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Place of Public Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of place of public 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 Public Accommodations (Disability Discrimination) regulations defining the term place of public accommodation. See WAC 162-26-040, 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).

DEFINITION OF PLACE OF PUBLIC ACCOMMODATION

WAC 162-26-040 is the relevant regulation, and it defines the term place of public accommodation as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Place of public accommodation” is short for “place of public resort, accommodation, assemblage, or amusement” and means the full term.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Disability

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of disability? 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 defining the term disability. See WAC 162-26-040, 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).

DEFINITION OF DISABILITY

WAC 162-26-040 is the relevant regulation, and it defines the term disability as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

…

“Disability” is short for the term “the presence of any sensory, mental, or physical disability” used in the law against discrimination, and means the full term.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Public Accommodations — Definition of Accessible

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what is the definition of “accessible“? 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 defining the term accessible. See WAC 162-26-040, 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).

DEFINITION OF ACCESSIBLE

WAC 162-26-040 is the relevant regulation, and it defines the term accessible as follows:

…

(2) General definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

“Accessible” means usable or understandable by a person with a disability, with reasonable effort and in reasonable safety.

…

WAC 162-26-040 (emphasis added) (hyperlinks added).

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–gw

Soliciting Buyers from Neighbors of a Listed House

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) real estate transactions regulations, what are the rules concerning soliciting buyers from neighbors of a listed house? 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 soliciting buyers from neighbors of a listed house. See WAC 162-36-010, 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 provides additional statutory authority enabling the WSHRC to adopt regulations regarding soliciting buyers from neighbors of a listed house. See WAC 162-36-010, WA State Legislature Website (bottom of page body).

SOLICITING BUYERS FROM NEIGHBORS OF A LISTED HOUSE

WAC 162-36-010 is the relevant regulation, and it addresses soliciting buyers from neighbors of a listed house as follows:

Some real estate firms have a practice of sending letters, post cards or printed circulars to residents of a neighborhood where they have a home listed for sale in order to obtain referrals of prospective buyers of the home. Such a practice does not necessarily discriminate against persons on the basis of race, creed, color, national origin, sex, sexual orientation, gender expression or gender identity, marital status, families with children status, the presence of a sensory, mental or physical disability or the use of a trained dog guide or service animal by a disabled person. However, the practice can have a discriminatory effect, and thereby constitute an unfair practice in a real estate transaction within the meaning of this chapter, where:

(1) It is used only in neighborhoods occupied entirely or predominantly by persons of a single race, creed, color, national origin, sex, sexual orientation, gender expression or gender identity, marital status, families with children status, have the presence of a sensory, mental or physical disability, or who use a trained dog guide or service animal as a disabled person, or

(2) Persons of a particular race, creed, color, national origin, sex, sexual orientation, gender expression or gender identity, marital status, families with children status, have the presence of a sensory, mental or physical disability, or use a trained dog guide or service animal as a disabled person living in the same neighborhood are not sent solicitations, or

(3) The content or language of the solicitation invites, promotes or perpetuates residential segregation or discrimination on the basis of race, creed, color, national origin, sex, sexual orientation, gender expression or gender identity, marital status, families with children status, the presence of a sensory, mental or physical disability, or the use of a trained dog guide or service animal by a disabled person.

WAC 162-36-010 (emphasis added) (hyperlinks added).

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–gw

Real Estate Transactions & Retaliation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) real estate transactions regulations, what are the rules concerning retaliation? 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 real estate transactions and retaliation. See WAC 162-36-006, 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 provides additional statutory authority enabling the WSHRC to adopt regulations regarding real estate transactions and retaliation. See WAC 162-36-006, WA State Legislature Website (bottom of page body).

REAL ESTATE TRANSACTIONS AND RETALIATION

WAC 162-36-006 is the relevant regulation, and it addresses real estate transactions and retaliation as follows:

It is an unlawful practice to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, rights regarding real estate transactions, regardless of the merits of the underlying claim, contentions or allegations at issue.

WAC 162-36-006 (emphasis added) (hyperlinks added).

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–gw

English Language Limitations and National Origin Discrimination

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Schools–Equal Education–Equal Rights–National Origin Minority Group Children regulations, what are the rules concerning English language limitations and national origin discrimination? 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 English language limitations and national origin discrimination. See WAC 162-28-040, 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).

ENGLISH LANGUAGE LIMITATIONS AND NATIONAL ORIGIN DISCRIMINATION

WAC 162-28-040 is the relevant regulation, and it addresses English language limitations and national origin discrimination as follows:

It is an unfair practice for public and private schools to fail or refuse to provide equal educational opportunity to children who are deficient in English language skills because of their national origin. Schools attended by such children shall meet the following standards:

(1) Where inability to speak and understand the English language excludes children based on national origin from effective participation, the district must take steps to ensure all programs and activities do not bar such students from fully participating.

(2) The steps taken under part (1) shall build competency in the English language without detriment to the children’s skills in other languages, and without impairing or suppressing the children’s cultural identity and heritage. The steps may include bilingual education. The appropriateness of particular steps to be taken will depend in part on the number of children who require this service.

(3) Students who are deficient in English language skills because of their national origin must not be assigned to special education classes for students with mental or other disabilities solely on the basis of criteria which essentially measure or evaluate English language skills; nor may school districts deny children based on their national origin access to college preparatory courses on a basis directly related to the failure of the school system to address English language deficiencies.

(4) Any ability grouping or tracking system employed by the school system to deal with the special language skill needs of children based on their national origin must be designed to meet such language skill needs as soon as possible and must not operate as an educational deadend or permanent track.

(5) School districts have the responsibility to adequately notify parents, regardless of their national origin, of school activities which are called to the attention of other parents. In order to be adequate, such notice may have to be provided in a language other than English.

WAC 162-28-040 (emphasis added) (hyperlinks added).

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Schools Are Places of Public Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Schools–Equal Education–Equal Rights–National Origin Minority Group Children regulations, what are the rules concerning whether schools are places of public 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 regulations regarding whether schools are places of public accommodation. See WAC 162-28-030, 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).

SCHOOLS ARE PLACES OF PUBLIC ACCOMMODATION

WAC 162-28-030 is the relevant regulation, and it addresses whether schools are places of public accommodation as follows:

(1) All public and private schools and other educational facilities in the state of Washington, except those operated or maintained by a bona fide religious or sectarian institution, are “places of public resort, accommodation, assemblage or amusement” for purposes of the Washington state law against discrimination, chapter 49.60 RCW.

(2) Definition: In this chapter, the following words are used in the meaning given, unless the context clearly indicates another meaning.

“Protected status” is short for the phrase, “race, creed, color, national origin, sex, 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 49.60.215).

(3) Except for conditions and limitations established by law and applicable to all persons, regardless of protected status, it is an unfair practice under RCW 49.60.215 for public and private schools or educational facilities or their agents or employees, on the basis of protected status, to:

(a) Commit any act which directly or indirectly results in any distinction, restriction or discrimination;

(b) Require any person to pay a larger sum than the uniform rates charged other persons;

(c) Refuse or withhold from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in a place of public accommodation.

WAC 162-28-030 (emphasis added) (hyperlinks added).

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State Environmental Policy Act

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning the State Environmental Policy Act? 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 the State Environmental Policy Act. See WAC 162-04-040, 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).

STATE ENVIRONMENTAL POLICY ACT

WAC 162-04-040 is the relevant regulation, and it addresses the State Environmental Policy Act as follows:

Pursuant to RCW 43.21C.120 and the SEPA guidelines, chapter 197-11 WAC, the commission has reviewed its authorized activities and has found them all to be exempt under the provisions of chapter 197-11 WAC.

WAC 162-04-040 (emphasis added) (hyperlinks added).

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Protective Orders to Seal Produced Documents

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning protective orders to seal produced documents? 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 protective orders to seal produced documents. See WAC 162-04-035, 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).

PROTECTIVE ORDERS TO SEAL PRODUCED DOCUMENTS

WAC 162-04-035 is the relevant regulation, and it addresses protective orders to seal produced documents as follows:

(1) May be requested. Any person who is asked or compelled to produce records may request a protective order to have a particular document or part of document that has been produced or will be produced kept confidential for official use only, without public access.

(2) To whom addressed. Prior to notice of hearing, a request for a protective order shall be made to the chairperson of the commission pursuant to the procedures established in WAC 162-08-020. After notice of hearing, a request for a protective order shall be made by motion to the administrative law judge, as provided in WAC 162-08-263(3).

(3) Form of request. Requests for a protective order shall be in written affidavit form and shall state the requestor’s reasons why a protective order should be issued for the documents covered.

(4) Grounds for issuance. A protective order may be made only upon findings that:

(a) The document or part of document is exempt from public disclosure under RCW 42.17.260 and 42.17.310 (Initiative 276) and the commission‘s implementing regulation, WAC 162-04-030, and;

(b) The requestor has shown legitimate need for confidentiality of the document or part of document.

(5) Form of order. The protective order shall be in writing and shall bear the caption of the case, date of entry of the order, and signature of the executive director or other authorized staff person or the administrative law judge. The text of the order shall contain:

(a) A description in general terms of each document covered by the order. Example: “Report dated . . . . . . . . of Dr. . . . . . . . . to respondent on results of physical examination of the complainant, two pages.”

(b) A statement of the specific exemption from the disclosure provisions of chapter 42.17 RCW authorizing the withholding of the record or part of record and a brief explanation of how the exemption applies to what is withheld. See RCW 42.17.310(4).

(c) A statement of why there is need for confidentiality of the document or part of document.

(6) Filing of order. The protective order shall be affixed to a sealed envelope containing the protected document and both shall be kept in the case file, or, alternatively, the original order and protected document may be kept at another place and a copy of the protective order placed in the case file along with a notation as to where the original order and protected document are kept.

(7) Effect of order. Except as may be provided in the protective order, documents covered by the protective order shall not be revealed to anyone other than commissioners, members of the commission‘s staff, and the commission‘s legal counsel for official purposes and shall not become public when the rest of the file becomes public as provided in WAC 162-04-030 (1)(a)(ii), but:

(a) Nothing shall prevent the use of a protected document in an administrative hearing or court case, including admission of the document into the public record of the hearing or case, and;

(b) Nothing herein is intended to prevent a court from ordering production of a protected document under RCW 42.17.310(3) or other authority.

(8) Other protective orders. Issuance of other kinds of protective orders concerning discovery is governed by WAC 162-08-096.

WAC 162-04-035 (emphasis added) (hyperlinks added).

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Credit Transactions — Scope of Chapter

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Credit Transaction Regulations, what is the scope of the chapter? 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 determine the scope of the Credit Transactions chapter. See WAC 162-40-010, 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).

CREDIT TRANSACTIONS — SCOPE OF CHAPTER

WAC 162-40-010 is the relevant regulation, and it addresses the scope of the Credit Transactions chapter, as follows:

This chapter carries out the policies and practices of the commission in connection with the law against discrimination covering credit transactions. The principal statutes involved are RCW 49.60.175, 49.60.176, and 49.60.222 (1)(j).

WAC 162-40-010 (emphasis added) (hyperlinks added).

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Clerk

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning clerks? 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 clerks. See WAC 162-04-026, 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 provided by RCW 42.18.250, 49.60.120, and chapter 49.60 RCW. See WAC 162-04-026, WA State Legislature Website (bottom of page body).

CLERK

WAC 162-04-026 is the relevant regulation, and it addresses clerks as follows:

(1) Designation. The executive director with the advice and consent of the chairperson shall designate a staff member to serve as clerk of the commission.

(2) Qualifications. The person designated as clerk shall not have any duties involving the investigation or conciliation of complaints or the prosecution of administrative hearings. If the clerk has been actively involved in the investigation or conciliation of a case or the prosecution of an administrative hearing in any capacity other than as clerk, he or she shall not thereafter serve as clerk for that case, and a substitute clerk shall be designated. The purpose of this subsection is to ensure compliance with chapter 34.05 RCW, restricting consultation with hearing officers, and RCW 49.60.250(2).

(3) Duties. The clerk shall have the duty and power to:

(a) Attend commission meetings and provide aid and services to the chairperson and commissioners as requested by the executive director.

(b) Assist the chairperson of the commission in requesting appointment of an administrative law judge, issuing notices of hearing and carrying out all other duties of the chairperson under RCW 49.60.250.

(c) Keep custody of the minutes of commission meetings, declaratory rulings, rule-making orders, and the commission‘s order register, and other records of action by the commissioners.

(d) Keep custody of the file of complaints after they are referred to the commission for action or report of no reasonable cause at a meeting, or upon certification of the file to the chairperson under RCW 49.60.250(1). The clerk shall deliver the investigator’s file of cases ready for hearing to the commission‘s chief counsel at the onset of the contested case process and shall obtain return of the file when litigation is completed.

(e) Respond to requests for information on actions by the commissioners or administrative law judge and furnish copies of records and files in the clerk‘s possession pursuant to WAC 162-04-030, Public access to records.

(f) Have custody of the commission‘s seal.

(g) Certify copies of commission records under the commission‘s seal.

(h) Serve as clerk of administrative hearings. In this capacity, the clerk, subject to the direction of the administrative law judge, shall keep custody of the official file of the administrative hearing, date stamp and file all papers filed in the proceeding when the hearing is not convened, serve all notices and papers required to be served by the administrative law judge, make the physical arrangements for hearings, provide for making and preserving the record of hearings, respond to inquiries about administrative practices and procedures, and generally do all things necessary and appropriate for the clerk of a judicial body to do.

(i) Serve as personal advisor to the chairperson of the commission and administrative law judge on matters relating to the hearing process.

(j) Perform such other duties as the chairperson of the commission or the administrative law judge shall assign from time to time, consistent with their duties.

(4) Upon direction from the chairperson of the commission, the administrative law judge, or the executive director, whichever is the appropriate authority, the clerk may enter upon his or her own signature, procedural orders, notices of hearing, orders appointing administrative law judges, notices of rule making, and similar items.

(5) Independence. The clerk when assisting the chairperson of the commission to carry out the chairperson‘s duties under RCW 49.60.250 and when serving as clerk of an administrative hearing shall be free from supervision of the executive director and other staff members of the commission to the extent necessary to ensure that the chairperson of the commission and the administrative law judges are free from influence from staff persons having a prosecutorial function.

WAC 162-04-026 (emphasis added) (hyperlinks added).

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Chairperson Pro Tem

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) general provisions regulations, what are the rules concerning chairpersons pro tem? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 42.18.250, 49.60.120, and chapter 49.60 RCW is the statutory authority enabling the WSHRC to adopt regulations regarding chairpersons pro tem. See WAC 162-04-024, WA State Legislature Website (bottom of page body).

CHAIRPERSON PRO TEM

WAC 162-04-024 is the relevant regulation, and it addresses chairpersons pro tem as follows:

(1) The commission may designate one of its members as chairperson pro tem for a particular time or for an indefinite time, to serve at the will of the commission. If the commission has not designated a chairperson pro tem and the chairperson is absent from the state, ill, or otherwise unable to carry out the duties of chairperson, then the most senior member of the commission other than the chairperson shall serve as chairperson pro tem until the chairperson is again able to carry out the duties of chairperson.

(2) The chairperson pro tem may exercise all of the powers of the chairperson during the time when the chairperson is absent, ill, or otherwise unable to carry out the duties of chairperson.

WAC 162-04-024 (emphasis added) (hyperlinks added).

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Form of Papers Filed With Administrative Law Judge

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning form of papers filed with the administrative law judge? 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 form of papers filed with the administrative law judge. See WAC 162-08-241, 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).

FORM OF PAPERS FILED WITH ADMINISTRATIVE LAW JUDGE

WAC 162-08-241 is the relevant regulation, and it addresses form of papers filed with the administrative law judge as follows:

(1) Caption. The notice of hearing shall include a full caption in substantially the following form:

(2) Form in general. Papers filed with an administrative law judge shall be in the form used for superior court practice. See in particular Rule 10, civil rules for superior court.

(3) Signing. Every pleading, motion or other paper filed on behalf of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall similarly date and sign proceedings, motions and other papers and give the party’s address. The signature of a party or of an attorney constitutes a certificate by that person in accordance with the provisions of Rule 11, civil rules for superior court.

WAC 162-08-241 (emphasis added) (hyperlinks added).

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Jurisdiction — Independent Contractors

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning jurisdiction (independent contractors)? 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 jurisdiction (independent contractors). See WAC 162-16-230, 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).

JURISDICTION — INDEPENDENT CONTRACTORS

WAC 162-16-230 is the relevant regulation, and it addresses jurisdiction (independent contractors) as follows:

(1) Purpose of section. RCW 49.60.180 defines unfair practices in employment. A person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to the protection of RCW 49.60.180. This section outlines the standards that we will use to determine whether a person is an employee as distinguished from an independent contractor for the purpose of entitlement to the protection of RCW 49.60.180.

(2) Rights of independent contractor. While an independent contractor does not have the protection of RCW 49.60.180, the contractor is protected by RCW 49.60.030(1). The general civil right defined in RCW 49.60.030(1) is enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the Washington state human rights commission.

(3) General approach. We will consider all the relevant facts, particularly those bearing on the following factors. No one factor is determinative, but the most important is the extent to which the purchaser of work controls the manner and means of performance of the work.

(a) Control of work. An employment relationship probably exists where the purchaser of work has the right to control and direct the work of the worker, not only as to the result to be achieved, but also as to the details by which the result is achieved.

(b) Tools and place of work. Does the purchaser of the work or the worker furnish the equipment used and the place of work? Generally, the purchaser of work furnishes tools and equipment for employees while independent contractors furnish their own. Some employees furnish some of their own tools, however.

(c) Skill level involved. The skill required in the particular occupation. Skilled workers are typically less closely supervised than unskilled workers, but they are employees if indicia of employment other than close supervision are present.

(d) Type of work involved. The kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision. Some persons, such as lawyers or doctors, may be employees even though they are not closely supervised. The test for such specialists is not whether the lawyer or doctor is closely supervised, but whether he or she is treated the way that employed lawyers or doctors are commonly treated. Lawyers and doctors are typically independent contractors, however, with respect to their clients or patients.

(e) Duration of work. The length of time during which the person has worked or the length of time that the job will last. Independent contractors typically are hired for a job of relatively short duration, but there are instances of independent contracts for an indefinite period – for example, contracts for janitorial service.

(f) Method of payment. The method of payment, whether by time or by the job. Independent contractors are usually paid by the job but are sometimes paid by time. Employees are usually paid by time but are sometimes paid by the job.

(g) Ending the work relationship. Whether the work relationship is terminable by one party or both parties, with or without notice and explanation. An employee is usually free to quit and is usually subject to discharge or layoff without breach of the employment contract. An independent contractor usually has more fixed obligations.

(h) Leave. Whether annual leave is afforded. Leave with pay is almost exclusively accorded to employees.

(i) Integration of the work in the purchaser’s operations. Whether the work is an integral part of the business of the purchaser of it. Usually, employees rather than independent contractors do the regular work of a business.

(j) Accrual of benefits. Whether the worker accumulates retirement benefits. Retirement benefits are almost exclusively accorded to employees.

(k) Taxation. Whether with respect to the worker the purchaser of work pays taxes levied on employers, such as the Social Security tax, unemployment compensation tax, and worker’s compensation tax, or withholds federal income tax. The tax laws do not have the same purposes as the law against discrimination, so employee status for tax purposes is helpful but not controlling.

(l) Salary or income. Whether the worker treats income from the work as salary or as business income. See subsection (3)(k) of this section.

(m) Employer records. Whether with respect to the worker the purchaser of work keeps and transmits records and reports required of employers, such as those required under the worker’s compensation act. Worker’s compensation coverage, like tax coverage, is helpful but not conclusive.

(n) The intention of the parties. The fact that a contract says that the worker is an independent contractor will be considered in this respect, but it is not conclusive for the purpose of coverage of RCW 49.60.180.

(4) Burden of persuasion. The party asserting that the complainant is an independent contractor has the burden of proving that status.

WAC 162-16-230 (emphasis added) (hyperlinks added).

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Preemployment Inquiry Guide — Purpose

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Preemployment Inquiry Guide, what is the purpose of the chapter? 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 the purpose of the chapter. See WAC 162-12-100, 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).

PURPOSE OF CHAPTER

WAC 162-12-100 is the relevant regulation, and it addresses the purpose of the chapter as follows:

(1) These regulations carry out the law against discrimination as stated generally in RCW 49.60.010 and 49.60.030, and interpret RCW 49.60.180 and 49.60.200 which declare certain preemployment inquiries to be unfair practices.

(2) The commission generally follows chapter 49.60 RCW and federal court decisions that interpret comparable statutes and rules. The commission will not follow federal precedents when a different interpretation of state statutes and rules will better carry out the purposes of chapter 49.60 RCW.

(3) This regulation cannot cover every question that might arise in connection with inquiries prior to employment. The commission expects that in most cases these rules, either directly or by analogy, will guide those who are covered by the law.

(4) Definition: In this chapter, the following words are used in the meaning given, 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 162-12-100 (emphasis added) (hyperlinks added).

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Definition of Health Care Professional

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what is the definition of health care professional? 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 the definition of health care professional. See WAC 162-22-020, 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).

DEFINITION OF HEALTH CARE PROFESSIONAL

WAC 162-22-020 is the relevant regulation, and it defines health care professional as follows:

In this chapter the following words are used in the meaning given, unless the context clearly indicates another meaning:

…

(6) “Health care professional” means a person whose license to practice includes diagnosis and assessment of the particular disability for which she or he issues a health care opinion.

WAC 162-22-020 (emphasis added) (hyperlinks added).

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Definition of Dog Guide

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what is the definition of dog guide? 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 the definition of dog guide. See WAC 162-22-020, 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).

DEFINITION OF DOG GUIDE

WAC 162-22-020 is the relevant regulation, and it defines dog guide as follows:

In this chapter the following words are used in the meaning given, unless the context clearly indicates another meaning:

…

(4) “‘Dog guide‘ means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.”

WAC 162-22-020 (emphasis added) (hyperlinks added).

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Definition of Able Worker With A Disability

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what is the definition of able worker with a disability? 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 the definition of able worker with a disability. See WAC 162-22-020, 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).

DEFINITION OF ABLE WORKER WITH A DISABILITY

WAC 162-22-020 is the relevant regulation, and it defines able worker with a disability as follows:

In this chapter the following words are used in the meaning given, unless the context clearly indicates another meaning:

…

(3) An “able worker with a disability” is a person whose disability does not prevent the proper performance, with or without reasonable accommodation, of the particular job in question.

WAC 162-22-020 (emphasis added) (hyperlinks added).

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Dog Guides & Service Animals

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning dog guides and service animals? 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 the dog guides and service animals. See WAC 162-22-100, 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).

DOG GUIDES & SERVICE ANIMALS

WAC 162-22-100 is the relevant regulation, and it addresses dog guides and service animals as follows:

(1) General rule. It is an unfair practice for an employer, employment agency, labor union, or other person to request that a trained dog guide or service animal be removed from the workplace, unless that employer, employment agency, labor union, or other person can show that the presence, behavior or actions of that dog guide or service animal constitutes an unreasonable risk to property or other persons.

It is an unfair practice to remove a trained dog guide or service animal from the entire workplace because the animal presents a risk of injury or harm when in part of the workplace.

(2) Assessing risk of injury or harm.

(a) Risk to property or other persons must be immediate or reasonably foreseeable under the circumstances, not remote or speculative. Risk to persons may be given more weight than risk to property. Risk of severe injury or harm may be given more weight than risk of slight injury or harm. For example, a principal excludes a teacher’s dog guide because; “A neighborhood dog bit one of our kids last year, so I don’t allow any dogs at school.” This is not “reasonably foreseeable risk” justifying removal of the dog guide.

(b) Annoyance on the part of staff or other customers of the workplace at the presence of the dog guide or service animal is not an unreasonable “risk to property or other persons” justifying the removal of the dog guide or service animal.

(c) Risk of injury or harm to the dog guide or service animal is not a reason for an employer to remove or exclude the animal. The decision whether to bring the animal to the worksite under such conditions most properly rests with the person with a disability using the dog guide or service animal.

(3) Reasonable accommodation. When risk justifies the removal of a dog guide or service animal from the workplace, efforts must be made to reasonably accommodate the person with the disability.

(4) Liability. Law other than the law against discrimination governs liability for injury or harm. Generally, a person with a disability using a dog guide or service animal is responsible for the animal and may be held liable for the behavior and actions of the animal.

WAC 162-22-100 (emphasis added) (hyperlinks added).

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–gw

Health Care Opinions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning health care opinions? 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 the health care opinions. See WAC 162-22-090, 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).

HEALTH CARE OPINIONS

WAC 162-22-090 is the relevant regulation, and it addresses health care opinions as follows:

(1) Employers may seek a health care professional’s opinion on whether a person’s disability affects the proper performance of a particular job. The employer may also seek a health care professional’s opinion on possible effective accommodations that would enable the person with a disability to properly perform the job. The health care professional’s opinion will be given due weight in view of all the circumstances, including the extent of the health care professional’s knowledge of the particular person and job, and the health care professional’s relationship to the parties.

(2) A health care professional’s conclusion will not be considered to be an opinion on whether the person can properly perform the particular job unless it:

(a) Is based on the individual capabilities of the particular person, and not on generalizations as to the capabilities of all persons with the same disability; and

(b) Is based on knowledge of the actual sensory, mental, and physical qualifications needed for proper performance of the particular job.

(3) Employers are advised to provide the health care professional with the necessary information about the particular job and to inform the health care professional of the need for an individualized opinion.

(4) Employee health care information shall be kept in a confidential manner, separate from the employee’s regular personnel files. The employer may share health care information only on a need to know basis. Supervisors and/or safety personnel may be informed of employee needs only if necessary to make appropriate work assignments or develop appropriate emergency response plans.

WAC 162-22-090 (emphasis added) (hyperlinks added).

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–gw

Employment–Handicapped Persons–Undue Hardship Exception

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning the undue hardship exception? 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 the undue hardship exception. See WAC 162-22-075, 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).

UNDUE HARDSHIP EXCEPTION

WAC 162-22-075 is the relevant regulation, and it addresses the undue hardship exception as follows:

An employer, employment agency, labor union, or other person must provide reasonable accommodation unless it can prove that the accommodation would impose an undue hardship. An accommodation will be considered an undue hardship if the cost or difficulty is unreasonable in view of:

(1) The size of and the resources available to the employer;

(2) Whether the cost can be included in planned remodeling or maintenance; and

(3) The requirements of other laws and contracts, and other appropriate considerations.

WAC 162-22-075 (emphasis added) (hyperlinks added).

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–gw

Preference For Disabled Not Unfair Practice

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning preference for disabled? 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 preference for disabled. See WAC 162-22-035, 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).

PREFERENCE FOR DISABLED IS NOT AN UNFAIR PRACTICE

WAC 162-22-035 is the relevant regulation, and it addresses preference for disabled as follows:

The law protects against discrimination because of the presence of any disability or the use of a trained dog guide or service animal by a person with a disability. Discrimination in favor of a person because of the person’s disability is not an unfair practice. This is different from the operation of the statutes in all other areas, except for age discrimination. For example, it is an unfair practice for an employer to discriminate either for or against persons of any race or either sex.

WAC 162-22-035 (emphasis added) (hyperlinks added).

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–gw

Employment–Handicapped Persons–Scope of Chapter

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning scope of chapter? 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 scope of chapter. See WAC 162-22-010, 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).

SCOPE OF CHAPTER

WAC 162-22-010 is the relevant regulation, and it addresses scope of chapter as follows:

This chapter interprets and implements the disability discrimination coverage of:

(1) RCW 48.60.174 (unfair practices based on actual or perceived HIV infection);

(2) RCW 49.60.180 (unfair practices of employers);

(3) RCW 49.60.190 (unfair practices of labor unions);

(4) RCW 49.60.200 (unfair practices of employment agencies);

(5) RCW 49.60.210 (unfair to discriminate against persons opposing unfair practices); and

(6) RCW 49.60.220 (unfair to aid violation).

WAC 162-22-010 (emphasis added) (hyperlinks added).

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–gw

Sexual Orientation & Gender Identity – Employee Benefits and Privileges

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sexual Orientation & Gender Identity Regulations, what are the rules concerning employee benefits and privileges? 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 employee benefits and privileges. See WAC 162-32-030, 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).

EMPLOYEE BENEFITS & PRIVILEGES

WAC 162-32-030 is the relevant regulation, and it addresses employee benefits and privileges as follows:

(1) Consistent and equal basis. Employee benefits provided in whole or in part by an employer must be consistent between all employees and equal for all employees, regardless of the employee’s sexual orientation or gender expression or gender identity. For example, it is an unfair practice to:

(a) Provide health insurance coverage to an employee’s opposite/different sex spouse but to fail to provide health insurance coverage to an employee’s same sex spouse (except in situations where such a rule is prohibited or preempted by federal law.)

(b) Provide parental leave or bonding time for the father of a child newly born or adopted into a heterosexual relationship, but fail to provide the same parental leave or bonding time to the parent of a child newly born or adopted into a same-sex relationship.

(2) Other benefits and privileges of employment. All other employee benefits, provided formally or informally including, but not limited to, health club memberships, discount programs, training, staff retreats, company gatherings and parties, and use of company vehicles or other company services, shall be provided on an equal basis to all employees regardless of the employee’s sexual orientation or gender expression or gender identity. If the benefit or privilege is extended to the employee’s opposite/different sex spouse, it must be extended to an employee’s same sex spouse as well.

WAC 162-32-030 (emphasis added) (hyperlinks added).

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–gw

Sexual Orientation & Gender Identity – Leave Policies & Reasonable Accommodation

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sexual Orientation & Gender Identity Regulations, what are the rules concerning leave policies and 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 leave policies and reasonable accommodation . See WAC 162-32-020, 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).

LEAVE POLICIES & REASONABLE ACCOMMODATION

WAC 162-32-020 is the relevant regulation, and it addresses leave policies and reasonable accommodation as follows:

(1) Leave. When an employer grants leave or time off of work to employees for medical or health reasons, the employer shall treat leave requests to address medical or health care needs related to an individual’s gender expression or gender identity in the same manner as requests for all other medical conditions. For example:

(a) If an employer provides paid sick leave for periods of disability that require medical leave, the employer must provide paid sick leave for periods of disability related to an individual’s gender expression or gender identity that require medical leave;

(b) If the employer’s policy requires a medical provider’s statement to verify the leave period as a reasonable accommodation, a medical provider’s statement may be required to verify the leave period as a reasonable accommodation when the disabling condition is related to the individual’s gender expression or gender identity, however, an employer may not inquire if the leave is related to gender expression or gender identity or gender transition, nor can the employer require that the note specify if the leave is related to gender expression or gender identity or gender transition;

(c) If the employer’s policy permits the retention and accrual of benefits, such as seniority, retirement, and pension rights, during the leave period for other disabilities, the policy must also permit such accrual of benefits during leave for disabling conditions related to an individual’s gender expression or gender identity;

(d) If an employer allows an employee to use shared leave for disabling conditions, the employer must apply the same policies and procedures for disabling conditions related to an individual’s gender expression or gender identity.

(2) Reasonable accommodation. An employer shall provide reason-able accommodation for a disability when the disability is related to the individual’s gender expression or gender identity, absent undue hardship to the employer. Such reasonable accommodation includes, but is not limited to, medical leave for medical and counseling appointments, surgery, and recovery from surgery that are related to gender reassignment procedures and treatments. An undue hardship as a reason for denying an accommodation in situations involving disabilities related to gender expression or gender identity shall be analyzed in the same manner as with accommodations for any other disability. To the extent consistent with personal medical information connected to other disabilities, personal medical information connected to disabilities related to a person’s gender expression or gender identity must be kept confidential.

(3) Nothing in this section is intended to suggest that a per-son’s sexual orientation or gender expression or gender identity itself is a disabling condition.

WAC 162-32-020 (emphasis added) (hyperlinks added).

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–gw

Sexual Orientation & Gender Identity – General Purpose & Scope

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sexual Orientation & Gender Identity Regulations, what are the rules concerning general purpose and scope? 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 general purpose and scope. See WAC 162-32-010, 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).

GENERAL PURPOSE & SCOPE

WAC 162-32-010 is the relevant regulation, and it addresses general purpose and scope as follows:

This chapter interprets and implements the sexual orientation and gender expression and gender identity discrimination protections of RCW 49.60.030, 49.60.180, and 49.60.215 and provides guidance regarding certain specific forms of sexual orientation and gender expression and gender identity discrimination.

WAC 162-32-010 (emphasis added) (hyperlinks added).

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–gw

General Purpose & Scope

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sex Discrimination Regulations, what are the rules concerning general purpose and scope? 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 general purpose and scope. See WAC 162-30-010, 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).

GENERAL PURPOSE & SCOPE

WAC 162-30-010 is the relevant regulation, and it addresses general purpose and scope as follows:

The general purpose of the law against discrimination in employment because of sex is to equalize employment opportunity for men and women. This chapter interprets and implements the sex discrimination protection of RCW 49.60.180, and provides guidance regarding certain specific forms of sex discrimination.

WAC 162-30-010 (emphasis added) (1st & 2nd hyperlinks added).

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–gw

General Purpose & Definitions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning both the general purpose and definitions? 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 the general purpose and definitions. See WAC 162-16-200, 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).

GENERAL PURPOSE & DEFINITIONS

WAC 162-16-200 is the relevant regulation, and it addresses general purpose and definitions as follows:

The law against discrimination protects persons from discrimination in employment (RCW 49.60.180, 49.60.190, and 49.60.200). Persons are also protected from discrimination as provided 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).

(1) The commission‘s first objective in writing the rules in this chapter and in making future decisions on questions not addressed in this chapter is to eliminate and prevent discrimination. This is the overall purpose of the law against discrimination.

(2) Other objectives in writing these rules are:

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(3) The state law against discrimination covers employers with eight or more employees. Persons should also educate themselves on relevant local or federal antidiscrimination laws.

(4) Definition:
In this chapter, the following words are used in the meaning given, 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 (emphasis added) (hyperlinks added).

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–gw

Recruiting Statements

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning recruiting statements? 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 recruiting statements. See WAC 162-16-290, 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).

RECRUITING STATEMENTS

WAC 162-16-290 is the relevant regulation, and it addresses recruiting statements as follows:

(1) Employers are encouraged to seek a broad pool of applicants through recruitment efforts. It is permissible to use advertisements that contain nonexclusionary recruitment phrases, such as:

(a) “Equal opportunity employer.”

(b) “We encourage workforce diversity.”

(2) IT IS NOT PERMISSIBLE, however, to express or exercise a hiring preference based on protected status, UNLESS:

(a) The employer has a court order to do so or an authorization from this commission or another governmental agency of competent authority and jurisdiction; or

(b) The employer can prove that the expression is justified by a bona fide occupational qualification (please see WAC 162-16-240). In the absence of proof, the advertisement will be considered evidence of an unfair practice under the law.

WAC 162-16-290 (emphasis added) (hyperlinks added).

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–gw

Newspapers and Other Advertising Media

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning newspapers and other advertising media? 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 newspapers and other advertising media. See WAC 162-16-280, 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).

NEWSPAPERS & OTHER ADVERTISING MEDIA

WAC 162-16-280 is the relevant regulation, and it addresses newspapers and other advertising media as follows:

(1) It is an unfair practice for a newspaper or other advertising medium to publish or circulate within the state an employment advertisement under a column heading or designation which segregates or expresses a preference on the basis of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240).

(2) It is not an unfair practice for any newspaper or other advertising medium to print, publish, or circulate employment advertisements expressing the wording of the advertisement, or subtly, directly or indirectly a preference, specification or limitation on the basis of protected status, provided the newspaper or other advertising medium furnishes, on request of a duly authorized representative of the commission, the name and address of the person who submitted the advertisement for publication.

(3) The commission encourages advertising media that circulate employment advertisements to:

(a) Maintain lists of discriminatory job titles and terms and suggested substitutes, as compiled by the commission;

(b) Instruct their ad-takers to advise employers and employment agencies of these terms; and

(c) Have copies of this regulation available for distribution to advertisers on request.

WAC 162-16-280 (emphasis added) (hyperlinks added).

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–gw

Employment Agencies

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning employment agencies? 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 employment agencies. See WAC 162-16-270, 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).

EMPLOYMENT AGENCIES

WAC 162-16-270 is the relevant regulation, and it addresses employment agencies as follows:

(1) It is an unfair practice for any employment agency to:

(a) Handwrite, print, or circulate any interoffice or interagency communication, job order, advertisement, brochure, or notice which expresses overtly or subtly, directly or indirectly a preference, specification or limitation on the basis of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240).

(b) Maintain, formally or informally, agency division titles that are not clearly neutral in terms of sex.

(2) It is not an unfair practice for an employment agency to assist an employer in recruiting applicants based on protected status when:

(a) The employer has a documented affirmative action plan; and

(b) The employer’s affirmative action plan is authorized or required by a governmental agency or court of competent authority and jurisdiction.

WAC 162-16-270 (emphasis added) (hyperlinks added).

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–gw

Discrimination Because of Marital Status

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning discrimination because of marital status? 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 discrimination because of marital status. See WAC 162-16-250, 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).

DISCRIMINATION BECAUSE OF MARITAL STATUS

WAC 162-16-250 is the relevant regulation, and it addresses discrimination because of marital status as follows:

(1) General rule. It is an unfair practice to discriminate against an employee or job applicant because of marital status. Examples of unfair practices include, but are not limited to:

(a) Refusing to hire a single or divorced applicant because of a presumption that “married persons are more stable.”

(b) Refusing to promote a married employee because of a presumption that he or she “will be less willing to work late and travel.”

(2) Exceptions to the rule. There are narrow exceptions to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of marital status:

(a) If a bona fide occupational qualification applies (please see WAC 162-16-240).

(b) If an employer is enforcing a documented conflict of interest policy limiting employment opportunities on the basis of marital status:

(i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;

(ii) Where one spouse would be responsible for auditing the work of the other;

(iii) Where other circumstances exist which would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer’s interest and their own; or

(iv) Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies, or others with whom the employer deals.

WAC 162-16-250 (emphasis added) (hyperlinks added).

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–gw

Bona Fide Occupational Qualification

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning bona fide occupational qualification? 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 bona fide occupational qualification. See WAC 162-16-240, 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).

BONA FIDE OCCUPATIONAL QUALIFICATION

WAC 162-16-240 is the relevant regulation, and it addresses bona fide occupational qualification as follows:

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 added) (hyperlinks added).

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–gw

Parties

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

PARTIES

WAC 162-08-288 is the relevant regulation, and it addresses parties as follows:

(1) Who are parties. The parties to the hearing shall be the commission, through its counsel presenting the case in support of the complaint, a complainant or aggrieved person under RCW 49.60.040(15) who has filed a notice of independent appearance under WAC 162-08-261, the respondent or respondents named in the notice of hearing or an amended notice of hearing, and any other person who moves to intervene and is permitted to do so by order of the administrative law judge.

(2) Adding parties. Any party may move to join an additional party or parties. The motion must be directed to the administrative law judge. If the motion is granted, the administrative law judge shall cause to be issued an amended notice of hearing showing the addition of the party or parties and making such other provisions as are appropriate for an orderly hearing.

(3) Substituting parties. If death, incompetency, transfer of interest, or other occurrence should make the substitution of parties necessary or desirable, the administrative law judge may make the substitution by order. The administrative law judge may act on his or her own motion, or on motion of a party or of the person asking to be substituted for a party.

(4) Intervention. A person claiming an interest in the subject matter of the hearing may move to intervene. The motion must be directed to the administrative law judge. The administrative law judge shall grant or deny the motion as a matter of discretion.

(5) Factors considered. The administrative law judge in ruling on a motion to add a party shall be guided by whether the presence of the party will be helpful in carrying out the purposes of the law against discrimination (compare WAC 162-08-061). In addition, the administrative law judge shall consider whether adding the party will cause unnecessary delay or will divert the hearing from the objectives of the statute and of the commission‘s amended complaint. The administrative law judge need not follow court rules or precedents on the joinder of parties.

(6) Not class actions. Hearings under RCW 49.60.250 are not class actions, in the technical sense of that term in court practice. The commission, presenting the case in support of a complaint, may ask that a respondent be ordered to pay back pay or to afford other relief to all persons injured by an unfair practice, and the administrative law judge may issue such an order to carry out the purposes of the law against discrimination (WAC 162-08-298(6)). If such an order is made, the right to have the payments made will belong to the commission, not to the injured persons (WAC 162-08-305). The legal rights of persons of the class alleged to have been injured are not at issue in the case, and those persons are not bound by the administrative law judge‘s decision unless they accept the benefits of it in full satisfaction of their potential claims. Only the commission and the respondent and other persons named as parties are bound by the order of an administrative law judge.

WAC 162-08-288 (emphasis added) (hyperlinks added).

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–gw

Prehearing Conference

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning prehearing conferences? 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 prehearing conferences. See WAC 162-08-286, 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).

PREHEARING CONFERENCE

WAC 162-08-286 is the relevant regulation, and it addresses prehearing conferences as follows:

(1) Conference. The administrative law judge, as a matter of discretion, with or without a motion from a party, may direct the attorneys for the parties to appear before the administrative law judge for a conference to consider:

(a) The simplification of the issues;

(b) The necessity or desirability of amendments to the pleadings;

(c) The possibility of obtaining admissions of fact and of documents which will be premarked for admission into evidence in order to avoid unnecessary proof;

(d) The limitation of the number of expert witnesses; and

(e) Other matters that may aid in the disposition of the case.

(2) Order. The administrative law judge shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements of counsel. The order when served and filed controls the subsequent course of the case, unless it is modified at the hearing to prevent manifest injustice.

WAC 162-08-286 (emphasis added) (hyperlinks added).

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Summary Judgment

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning summary judgment? 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 summary judgment. See WAC 162-08-282, 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).

SUMMARY JUDGMENT

WAC 162-08-282 is the relevant regulation, and it addresses summary judgment as follows:

(1) Authorized. At any time prior to the tenth day before the date of a hearing, any party may serve and file a motion for summary judgment in the party’s favor as to all or part of the case.

(2) Procedure. The usual procedure for motions made before an administrative law judge, WAC 162-08-271, shall apply except where this section provides a different procedure.

(3) Response. Any party may serve and file opposing affidavits and a response, or either of these, within seven days after the motion for summary judgment has been served on that party.

(4) When decided. The administrative law judge shall decide a motion for summary judgment promptly after ten days have elapsed since the motion was filed with the administrative law judge.

(5) Oral argument optional. Oral argument shall be heard only if ordered by the administrative law judge.

(6) What is decided. The administrative law judge‘s final order shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, and other documents and evidence properly before the administrative law judge, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of whether an unfair practice has been committed although there is a genuine issue as to the amount or nature of relief to be ordered. Otherwise, summary judgment shall be denied.

(7) Orders when case not fully adjudicated on motion. If summary judgment is not ordered for the whole case or for all of the relief asked and a hearing is necessary, the administrative law judge shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. The administrative law judge may summon counsel for all parties and interrogate them for this purpose. The administrative law judge shall then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount or nature of relief is not in controversy, and directing such further proceedings as are just. At the hearing, the facts so specified shall be deemed established, and the hearing shall be conducted accordingly.

(8) Form of affidavits; further testimony. Supporting and opposing affidavits must be made on personal knowledge, must set forth facts that would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to what is stated. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to the affidavit or served with it. The administrative law judge may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

(9) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the administrative law judge may refuse the motion, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or the administrative law judge may issue such other order as is just.

(10) Affidavits made in bad faith. Should it appear to the satisfaction of the administrative law judge at any time that any of the affidavits were presented in bad faith or solely for the purpose of delay, the administrative law judge shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the party to incur, including reasonable attorney’s fees. The administrative law judge shall include this order in the final order.

WAC 162-08-282 (emphasis added) (hyperlinks added).

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Motions Before Administrative Law Judge

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning motions before administrative law judges? 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 motions before administrative law judges. See WAC 162-08-271, 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).

MOTIONS BEFORE ADMINISTRATIVE LAW JUDGE

WAC 162-08-271 is the relevant regulation, and it addresses motions before administrative law judges as follows:

(1) Scope of section. This section governs all motions made to the administrative law judge except those made orally on the record during an administrative hearing.

(2) Form. A motion must be in writing. It must state the order or other relief requested and the grounds for the motion. It may be accompanied by affidavits. It must be supported by legal authorities, set out in the motion or in a supporting brief.

(3) Response. Any party may serve and file a response within five days after the motion has been served on that party.

(4) Filing. The original and one copy of every motion and response, with supporting papers, must be filed with the clerk, along with proof of service.

(5) Ruling. When the administrative law judge has received a response from all parties, or five days have elapsed since the last party was served, the administrative law judge shall rule on the motion without oral argument, unless the administrative law judge, in his or her discretion, orders that argument be heard.

WAC 162-08-271 (emphasis added) (hyperlinks added).

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Voluntary Dismissal

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

VOLUNTARY DISMISSAL

WAC 162-08-268 is the relevant regulation, and it addresses voluntary dismissal as follows:

(1) Prior to day of hearing. Except as may be provided for cases alleging unfair practices in real estate transactions, on the day when the hearing of a case commences the commission or any other party on the side supporting the complaint may voluntarily dismiss the party’s case or a claim by serving and filing a written notice of dismissal.

(2) After hearing commenced. Except as may be provided for cases alleging unfair practices in real estate transactions, after a hearing has commenced the commission or any other party on the side supporting the complaint may move for voluntary dismissal of the party’s case or a claim. A motion that is made before the party rests at the conclusion of its opening case shall be granted as a matter of right. A motion made after that time may be granted if good cause is shown, and the grant may be subject to such terms and conditions as the administrative law judge deems proper.

(3) Effect of dismissal. A voluntary dismissal concludes the administrative proceeding as to the dismissed party or claim, but is not an adjudication of the merits of the issues before the administrative law judge (that is, the merits may still be adjudicated in another forum if the party has a right to sue in another forum and timely files such claim with the other forum). A voluntary dismissal of one claim does not extinguish any other claim, and a voluntary dismissal by one party does not dismiss any other party. If the commission takes a voluntary dismissal of the case in support of the complaint the entire case is closed, unless the complainant has appeared independently under WAC 162-08-261 or another person has intervened as a party on the side of the complaint pursuant to WAC 162-08-288(4), in which circumstance the hearing shall proceed with the remaining parties.

WAC 162-08-268 (emphasis added) (hyperlinks added).

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Amendment of Pleadings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning amendment of pleadings? 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 amendment of pleadings. See WAC 162-08-265, 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).

AMENDMENT OF PLEADINGS

WAC 162-08-265 is the relevant regulation, and it addresses amendment of pleadings as follows:

(1) Right to amend. A party to an administrative hearing may amend a pleading once as a matter of course at any time more than twenty days before the date set for hearing. Otherwise, a party may amend a pleading only by leave of the administrative law judge or by written consent of all adverse parties.

(2) Action on motions to amend. The administrative law judge shall freely give leave to amend when justice so requires. The administrative law judge may designate a time for filing an answer to amended pleadings that may be answered, and may reschedule other dates, including the hearing date, if this is necessary to assure that issues for hearing are fully and properly framed.

(3) Form of amendment. An amendment other than one made on the record during a hearing must be in writing. A written amendment may be in the form of either a revised pleading superseding the entire text of the amended pleading, or a supplemental paper containing only the amendment.

WAC 162-08-265 (emphasis added) (hyperlinks added).

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Discovery–Administrative Hearing

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning Discovery–Administrative Hearing? 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 Discovery–Administrative Hearing. See WAC 162-08-263, 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).

DISCOVERY–ADMINISTRATIVE HEARING

WAC 162-08-263 is the relevant regulation, and it addresses Discovery–Administrative Hearing as follows:

The commission has determined that discovery will be available in adjudicative proceedings in accordance with RCW 34.05.446(2).

(1) Methods. Upon certification of the file pursuant to WAC 162-08-190, and request for the appointment of an administrative law judge pursuant to WAC 162-08-211, any party may obtain discovery by the methods provided in CR 26(a). The procedures regarding these methods of discovery are found at CR 28 through 37 as now or hereafter amended and are hereby incorporated in this section.

(2) Scope of discovery. Any party may obtain discovery regarding any matter not privileged which is relevant to the amended complaint prepared by counsel for the commission or the additional charges filed by the complainant pursuant to WAC 162-08-261.

(3) Protective order. Rulings on motions for protective orders regarding discovery brought under this section shall be made by the administrative law judge pursuant to the provisions of WAC 162-08-271.

(4) Order compelling discovery. The administrative law judge is authorized to make any order that a court could make under CR 37(a), including an order awarding expenses of the motion to compel discovery. Motions for an order compelling discovery and the procedure for its disposition are governed by WAC 162-08-271.

WAC 162-08-263 (emphasis added) (hyperlinks added).

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Complainant’s Participation

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

COMPLAINANT’S PARTICIPATION

WAC 162-08-261 is the relevant regulation, and it addresses complainant’s participation as follows:

(1) Notice of independent appearance. A complainant or aggrieved person under RCW 49.60.040(15) who desires to submit testimony or otherwise participate in the hearing as a party and not to leave the case in support of the complaint to be presented solely by counsel for the commission, must serve and file a notice of independent appearance within ten days after the notice of hearing is served on that complainant. The notice shall state the address where notices to the complainant shall be sent and it shall state whether the complainant elects to prove additional charges as provided in subsection (2) of this section.

(2) Election to prove additional charges. A complainant or aggrieved person under RCW 49.60.040(15) who has filed a notice of independent appearance stating an intention to prove additional charges in accordance with RCW 49.60.250(2), may at the hearing offer proof of averments included in the original complaint or in amendments to the original complaint made by the complainant, whether or not the averments are included in the amended complaint under which counsel for the commission is proceeding. For purposes of this section, the complainant may amend the original complaint without regard to intervening amendments made by the commission. The complainant may serve and file an amended complaint with a notice of independent appearance, or thereafter as provided by these rules. If no amended complaint is served with a notice of independent appearance that states an intention to prove additional charges, the clerk shall promptly place the original complaint in the file for the administrative law judge. Nothing done by the complainant under this rule shall place any duty on counsel for the commission to seek to prove matters not averred in the amended complaint accompanying the notice of hearing, or subsequent amendments by the commission.

(3) Appearance without election. If the complainant or aggrieved person under RCW 49.60.040(15) files a notice of independent appearance which does not state that he or she elects to prove additional charges, then the complainant‘s participation in the hearing shall be confined to the matters raised by the amended complaint filed with the notice of hearing, and subsequent amendments made by the commission.

(4) When no independent appearance. If the complainant or aggrieved person under RCW 49.60.040(15) does not file a notice of independent appearance as provided by this rule, the case in support of the complaint shall be presented solely by counsel for the commission.

WAC 162-08-261 (emphasis added) (hyperlinks added).

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No Counterclaims or Crossclaims

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning counterclaims and crossclaims? 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 counterclaims and crossclaims. See WAC 162-08-253, 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).

NO COUNTERCLAIMS OR CROSSCLAIMS

WAC 162-08-253 is the relevant regulation, and it addresses counterclaims and crossclaims as follows:

Jurisdiction of the administrative law judge is limited to determining whether unfair practices have occurred, and counterclaims and cross claims will not be heard.

WAC 162-08-253 (emphasis added) (hyperlinks added).

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Answer

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning answers? 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 answers. See WAC 162-08-251, 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).

ANSWER

WAC 162-08-251 is the relevant regulation, and it addresses answers as follows:

(1) Required. Every respondent shall file an answer to the amended complaint attached to the notice of hearing, and to any subsequent amendments or complaints that are filed.

(2) Content. The answer shall set out and assert every defense, in law or fact, to the claims of the complaint being answered.

(3) Waiver of defenses not pleaded. Defenses not pleaded in an answer are waived.

(4) Time for filing. An answer shall be filed within twenty days after notice of hearing is served, unless an extension of time is granted in writing by the administrative law judge.

(5) Form of defenses and denials. A respondent shall state in short and plain terms its defenses to each claim asserted and shall admit or deny each averment of the amended complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an averment, the respondent shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a respondent intends in good faith to deny only a part or a qualification of an averment, the respondent shall specify so much of it as is true and material and shall deny only the remainder.

(6) Affirmative defenses. A respondent who wishes to raise any matter constituting an avoidance or affirmative defense, including those required to be set forth affirmatively by CR 8(c), must plead the matter as an affirmative defense in the respondent’s answer. Among the matters which must be pleaded as affirmative defenses are the following:

(a) A bona fide occupational qualification;
(b) Business necessity that justifies a practice that has a discriminatory effect; and
(c) That another statute or rule of law precludes or limits enforcement of the law against discrimination, or regulations or precedents of the commission.

(7) Statutory steps. Any defense that the hearing cannot be held because the respondent has been prejudiced because statutory steps prior to hearing have not been taken, or because of some irregularity in statutory procedure, must be pleaded in the answer by specific negative averment, which shall include such supporting particulars as are within the answering respondent‘s knowledge or could reasonably have been learned by the answering respondent.

(8) Obligation of good faith. The assertion of denials and defenses is subject to the obligation of good faith set out in WAC 162-08-241(3) and CR-11.

(9) Reply. Unless the administrative law judge orders that a reply to an answer be filed, none shall be necessary. Averments in an answer shall be deemed denied or avoided.

WAC 162-08-251 (emphasis added) (hyperlinks added).

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–gw

Record, Pleadings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning record and pleadings? 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 record and pleadings. See WAC 162-08-231, 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).

RECORD, PLEADINGS

WAC 162-08-231 is the relevant regulation, and it addresses record and pleadings as follows:

(1) Record. The record of an administrative hearing shall include the items specified in RCW 34.05.437, including, but not limited to:

(a) All pleadings, motions, briefs, proposed findings of fact and conclusions of law and initial or final orders, objections, but not offers of settlement (RCW 49.60.250(2));
(b) Evidence received or considered;
(c) A statement of matters officially noticed;
(d) Any decision, opinion, or report by the officer presiding at the hearing.

(2) Pleadings. Pleadings for an administrative hearing shall include the notice of hearing with amended complaint attached and any amended complaints subsequently filed, plus any answers or replies filed under WAC 162-08-251, and the original complaint if, but only if, the complainant elects to proceed under it as provided in WAC 162-08-261.

(3) Proceedings before notice of hearing not part of record. No findings or other parts of the commission‘s record of action on the complaint prior to notice of hearing shall be included in the record of the administrative hearing unless the particular document is offered and admitted into evidence.

(4) Custody. The clerk shall keep custody of the official record of the administrative hearing as provided in WAC 162-04-026(3)(h) and shall keep the administrative law judge file separate from the file of the original complaint, investigation, and conciliation, of which the clerk has custody under WAC 162-04-026(3)(d) and 162-08-190.

(5) Record for appeal. The record certified to the court for the purpose of judicial review under RCW 34.05.510 et seq. shall comply with RCW 34.05.566.

(6) Record for enforcement. The record to be filed in an enforcement proceeding shall include the final order of the administrative law judge and any other portions of the record required by the court.

WAC 162-08-231 (emphasis added) (hyperlinks added).

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Default Orders

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning default orders? 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 default orders. See WAC 162-08-255, 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).

DEFAULT ORDERS

WAC 162-08-255 is the relevant regulation, and it addresses default orders as follows:

(1) Entry of default order. When a respondent who has been served with a notice of hearing and amended complaint fails to answer in accordance with WAC 162-08-251, and that fact is made to appear by motion and affidavit, a motion for default may be made and served upon respondent requiring an answer within five days. If respondent fails to answer as required in the motion for default, the administrative law judge may enter an order of default providing for the relief requested in the amended complaint upon proof of service of the motion for default as provided in WAC 162-08-041.

(2) Setting aside default order. Within ten days of being served, the party against whom a default order is entered may move to have it set aside. The administrative law judge may grant or deny such motion as justice requires.

WAC 162-08-255 (emphasis added) (hyperlinks added).

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Termination of a Case Without Findings of Fact

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning termination of a case without findings of fact? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

TERMINATION OF A CASE WITHOUT FINDINGS OF FACT

WAC 162-08-099 is the relevant regulation, and it states that the rules concerning termination of a case without findings of fact are follows:

(1) Authorized. The commission in appropriate circumstances may terminate its action on a case without making findings of fact pursuant to RCW 49.60.240. This section provides procedures in some of the circumstances.

(2) Withdrawal of complaint. No findings or other procedures in RCW 49.60.240 and 49.60.250 are necessary when the complainant has requested withdrawal of the complaint and the commissioners have consented to the withdrawal pursuant to WAC 162-08-091.

(3) Settled before finding. Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, a complaint may be settled before findings of fact are made, when the commission‘s staff and a respondent have entered into a written settlement agreement (prefinding settlement). Prefinding settlement agreements shall be presented to the commissioners. The commissioners, if they approve, shall enter an order setting forth the terms of the agreement, using the same procedure as if the agreement were presented to the commissioners under RCW 49.60.240 and WAC 162-08-106 after findings of fact. A prefinding settlement is not binding on the commission until the commissioners vote to accept it and issue their order.

(4) Administrative closure. A case may be administratively closed by vote of the commissioners when the complaint has been resolved informally, or has been adjudicated in another forum, or has become moot, or cannot be investigated because the complainant or respondent cannot be found, or when other circumstances justify administrative closure. Administrative closure is an official termination of work on a complaint prior to completion of the entire statutory process, letting the complaint lie in its present posture. A case that has been administratively closed can be administratively reopened by vote of the commissioners.

WAC 162-08-099 (emphasis added) (hyperlinks added).

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Findings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning findings? 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 findings. See WAC 162-08-098, 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).

FINDINGS

WAC 162-08-098 is the relevant regulation, and it addresses findings as follows:

(1) General. The findings document shall contain (a) findings of fact, and (b) an ultimate finding of reasonable cause or no reasonable cause for believing that an unfair practice has been or is being committed, or a finding on jurisdiction, as provided in (2) of this section.

(2) Jurisdictional dispositions. When the facts found show that the matter is not within the jurisdiction of the commission, the ultimate finding shall be “no jurisdiction” rather than “reasonable cause” or “no reasonable cause.” In extraordinary circumstances where the commission technically has jurisdiction but for overriding reasons of law or policy is unable to properly exercise its jurisdiction, the ultimate finding may be “jurisdiction declined.” An example of such an extraordinary circumstance is a complaint against the commission itself.

(3) Scope of reasonable cause finding. A finding of reasonable cause shall specify the unfair practice found and, as nearly as possible, the person or persons against whom the unfair practice has been committed. If the facts show an unfair practice against a class of persons, the class shall be indicated to the extent possible.

(4) Action by commissioners. Findings of no reasonable cause shall be reported to the commissioners at a meeting, and shall thereafter stand as the action of the commission unless the commissioners vote to set aside a particular finding. Findings of reasonable cause shall be used by the staff for the purpose of endeavoring to eliminate the unfair practices by conference, conciliation, and persuasion. Proposed findings of “no jurisdiction” or “jurisdiction declined” shall be reported to the commissioners and shall become commission action when approved by vote of the commissioners at a meeting.

(5) Effect of findings. A finding that there is or is not reasonable cause for believing that an unfair practice has been or is being committed is not an adjudication of whether or not an unfair practice has been or is being committed.

WAC 162-08-098 (emphasis added) (hyperlinks added).

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Reconsideration

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning reconsideration? 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 reconsideration. See WAC 162-08-311, 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).

RECONSIDERATION

WAC 162-08-311 is the relevant regulation, and it addresses reconsideration rules as follows:

(1) Motion. Within ten days after being served with the final order of an administrative law judge, any party may serve and file a motion for reconsideration with the commission clerk. The motion shall identify the points that the party desires to have reconsidered and shall fully state the reasons for reconsideration. The motion shall in all other respects proceed as provided in RCW 34.05.470.

(2) Finality for appeal. When a motion for reconsideration has been filed, the order of the administrative law judge shall not be deemed final for purposes of appeal until the ruling on the motion has been served.

(3) Reconsideration not necessary for appeal. Motions for reconsideration should be made only when a party feels that the administrative law judge has overlooked or misunderstood something. It is not necessary to file a motion for reconsideration in order to appeal. RCW 34.05.470(5).

WAC 162-08-311 (emphasis added) (hyperlinks added).

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Conduct of Hearings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning conduct of hearings? 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 conduct of hearings. See WAC 162-08-291, 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).

CONDUCT OF HEARINGS

WAC 162-08-291 is the relevant regulation, and it addresses rules concerning conduct of hearings as follows:

(1) Reference to law. Hearings shall be conducted in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW, RCW 49.60.250, and these rules.

(2) Administrative law judge presides. The administrative law judge shall preside as provided in WAC 162-08-211.

(3) Hearings shall be public. All administrative hearings shall be open to the public. Photographs and recordings of the proceedings may be made, subject to such conditions as the administrative law judge may impose to prevent interference with the orderly conduct of the hearing. Special lighting for photographic purposes may be used only if the administrative law judge has determined in advance that it will not be distracting. The administrative law judge may order news media to use one or more television cameras on a pooling basis if the number of cameras interferes with the conduct of the hearing.

(4) Record of testimony. The clerk shall determine whether the record of testimony taken at a hearing shall be made by mechanical means or by a court reporter.

(5) Copies of record. When the record has been recorded by mechanical means, rather than by a court reporter, a party ordering a copy of the record or part thereof under RCW 34.05.566 must pay the reasonable cost of transcription, as determined by the clerk, in advance of delivery of the copy. When the record is transcribed and copies of documents are made for transmittal to a reviewing court under RCW 34.05.566, the costs of transcription and copying may be charged to a nonindigent petitioner in accordance with RCW 34.05.566(3).

WAC 162-08-291 (emphasis added) (hyperlinks added).

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–gw

Findings, Conclusions, & Order

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning findings, conclusions, and orders? 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 findings, conclusions, and orders. See WAC 162-08-301, 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).

FINDINGS, CONCLUSIONS, AND ORDER

WAC 162-08-301 is the relevant regulation, and it addresses rules concerning findings, conclusions, and orders as follows:

(1) Preliminary decision of administrative law judge. In every administrative hearing the administrative law judge shall prepare preliminary findings of fact, conclusions of law, and order in accordance with WAC 10-08-210, which shall be mailed to the parties and their counsel for comments, objections, and proposed corrections.

(2) Final decision of administrative law judge. After the expiration of thirty days from the receipt of comments upon the preliminary decision, the administrative law judge will issue a final decision which is enforceable in accordance with RCW 49.60.260.

WAC 162-08-301 (emphasis added) (hyperlinks added).

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–gw

Nature of Orders–Enforcement

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

NATURE OF ORDERS–ENFORCEMENT

WAC 162-08-305 is the relevant regulation, and it states that the nature of orders–enforcement is as follows:

(1) Nature of orders. Orders obtained by counsel for the commission are public reparation orders, not adjudications of private rights between respondents and persons aggrieved by the respondents’ unfair practices. When a respondent is ordered to rehire or compensate a person, the person who is the beneficiary of the order has no property right in the job, money, etc., until the person receives it.

(2) Enforcement of order. Except as may be otherwise provided in RCW 49.60.260 and WAC 162-08-288, only the commission, through its counsel, has the authority to enforce an order of an administrative law judge. RCW 49.60.260.

(3) Compromise of order. Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, the commission, acting in good faith, may compromise an order of an administrative law judge, with or without the consent of the beneficiaries of the order.

WAC 162-08-305 (emphasis added) (hyperlinks added).

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–gw

Claims of Self Incrimination–Immunity

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning claims of self incrimination–immunity? 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 claims of self incrimination–immunity. See WAC 162-08-294, 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).

CLAIMS OF SELF INCRIMINATION–IMMUNITY

WAC 162-08-294 is the relevant regulation, and it addresses claims of self incrimination–immunity as follows:

(1) How claimed. A natural person who is testifying under oath, may, instead of answering a question, decline to answer the question on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture.

(2) Procedure before compelling testimony. Before compelling testimony after the privilege against self incrimination has been invoked (and thereby exempting the witness from prosecution) the administrative law judge shall ask examining counsel and also counsel for the commission to state their positions on whether the witness should be ordered to answer. Counsel for the commission may ask that the ruling be deferred for such time as is necessary for counsel for the commission to consult with other public officers before responding. The position of counsel for the commission and other public officers shall be given due weight by the administrative law judge in deciding whether to order the witness to answer.

(3) Inference from silence after immunity acquired. If the witness declines to answer the question after acquiring exemption from prosecution, the administrative law judge may consider the silence as evidence and may draw such inferences from it as are warranted by the facts surrounding the incident.

WAC 162-08-294 (emphasis added) (hyperlinks added).

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–gw

Conciliation Negotiations

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

CONCILIATION NEGOTIATIONS

WAC 162-08-104 is the relevant regulation, and it states that the guidelines for conciliation negotiations are as follows:

(1) Endeavors of staff. Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, the task of the commission is to endeavor to eliminate the unfair practice through agreement with the respondent. The extent of effort to be expended toward this end will depend on the likelihood that agreement on mutually acceptable terms can be reached. If, for example, it is apparent from an exchange of letters that agreement cannot be reached, it is not necessary to hold a conference. If a respondent has been afforded a reasonable opportunity to negotiate, that is sufficient to satisfy the statutory requirements pertaining to conciliation of a complaint brought under chapter 49.60 RCW and this chapter.

(2) Reopening conciliation. The making and service of a finding that no agreement can be reached does not preclude renewing negotiations or reaching an agreement at a later time. The finding that no agreement can be reached is not affected by a renewal of negotiations, but it may be superseded by any subsequent agreement which resolves the unfair practices at issue in the complaint filed with the commission.

WAC 162-08-104 (emphasis added) (hyperlinks added).

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–gw

Protective Orders

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning protective orders? 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 protective orders. See WAC 162-08-096, 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).

PROTECTIVE ORDERS

WAC 162-08-096 is the relevant regulation, and it addresses protective orders as follows:

(1) Upon motion by a party or by the person from whom information is sought pursuant to WAC 162-08-09501, and for good cause shown, the chairperson of the commission may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense caused by revealing private information, or trade secrets, including all orders a court can make under CR 26(c).

(2) If a motion for a protective order is denied in whole or in part, the chairperson may, on such terms and conditions as are just, order that any party or person provide or permit information to be revealed subject to the provisions of WAC 162-08-097.

(3) The chairperson may, on such terms and conditions as are just, grant a protective order sealing the produced documents pursuant to WAC 162-04-035.

WAC 162-08-096 (emphasis added) (hyperlinks added).

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–gw

Real Estate Transactions — Conciliation

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

REAL ESTATE TRANSACTIONS–CONCILIATION

WAC 162-08-107 is the relevant regulation, and it addresses real estate transactions and conciliation as follows:

During the period beginning with the filing of a complaint of an unfair practice in a real estate transaction and ending with the filing of a charge or a dismissal by the commission, the commission shall, to the extent feasible, engage in conciliation with respect to the complaint.

(1) An agreement arising out of conciliation efforts under this section shall be an agreement between the respondent and the complainant, and shall be subject to approval by the commission.

(2) Each conciliation agreement shall be made public unless the complainant and respondent agree otherwise and the commission determines that disclosure is not necessary to further the purposes of chapter 49.60 RCW.

WAC 162-08-107 (emphasis added) (hyperlinks added).

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–gw

Breach of Conciliated Agreement

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning breach of a conciliated agreement? 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 breach of a conciliated agreement. See WAC 162-08-109, 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).

BREACH OF CONCILIATED AGREEMENT

WAC 162-08-109 is the relevant regulation, and it addresses breach of a conciliated agreement as follows:

If an agreement and order for the elimination of an unfair practice made under RCW 49.60.240 is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:

(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;

(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or

(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310.

WAC 162-08-109 (emphasis added) (hyperlinks added).

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–gw

Failure To Provide Information

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning the failure to provide 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 rules concerning the failure to provide information. See WAC 162-08-097, 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).

FAILURE TO PROVIDE INFORMATION

WAC 162-08-097 is the relevant regulation, and it addresses the failure to provide information as follows:

(1) Order compelling production of information. The chairperson of the commission is authorized to make any order that a court could make under CR 37(a), including an order awarding expenses of the motion to compel production of information pursuant to WAC 162-08-09501. The executive director, upon reasonable notice to other parties and all persons affected thereby, may obtain an order compelling production of information by motion to the chairperson of the commission. The form of the motion and the procedure for its disposition is governed by WAC 162-08-019. When taking testimony under oath, the proponent of the question may either complete or adjourn the examination before moving for an order compelling production of information.

(2) Enforcement of an order compelling production of information. If the party fails to comply with a subpoena compelling production of information, the matter may be turned over to counsel for the commission for enforcement of the order in superior court.

WAC 162-08-097 (emphasis added) (hyperlinks added).

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–gw

Approval of Agreements

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

APPROVAL OF AGREEMENTS

WAC 162-08-106 is the relevant regulation, and it provides the guidelines for approval of agreements as follows:

Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, an agreement reached between the commission‘s staff and a respondent under RCW 49.60.240 shall be reduced to writing, signed by the respondent and a member of the commission‘s staff, and presented to the commissioners at a meeting. The agreement is not binding on the commission until the commissioners vote to accept it.

WAC 162-08-106 (emphasis added) (hyperlinks added).

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–gw

Objective of Conciliation

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

OBJECTIVE OF CONCILIATION

WAC 162-08-102 is the relevant regulation, and it states that the objective of conciliation is as follows:

The commission‘s staff in its endeavors to eliminate an unfair practice by conference, conciliation and persuasion under RCW 49.60.250 shall be guided by the purposes of the law against discrimination and by the policies and objectives of the commission, particularly as expressed in WAC 162-08-061, 162-08-062 and 162-08-298. Elimination of an unfair practice includes elimination of the effects of the unfair practice, as well as assurance of the discontinuance of the unfair practice.

WAC 162-08-102 (emphasis added) (hyperlinks added).

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–gw

Reconsideration of Findings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the guidelines regarding reconsideration of findings? 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 reconsideration of findings. See WAC 162-08-101, 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).

RECONSIDERATION OF FINDINGS

WAC 162-08-101 is the relevant regulation, and it addresses reconsideration of findings as follows:

The commission may reconsider and correct any finding in which errors affecting the result are brought to its attention.

WAC 162-08-101 (emphasis added) (hyperlinks added).

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–gw

Referrals To Staff

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

REFERRALS TO STAFF

WAC 162-08-093 is the relevant regulation, and it addresses referrals to staff as follows:

Unless the chairperson of the commission directs otherwise for a particular complaint, all complaints shall be investigated by the section of the staff designated for that purpose by the executive director, and the executive director shall have full power to assign and reassign cases for investigation by particular staff persons, and to assign and reassign staff persons to the section of the staff that investigates complaints, on a full-time or part-time basis.

WAC 162-08-093 (emphasis added) (hyperlinks added).

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–gw

Requests For Advanced Notice of Rule Making

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the guidelines concerning requests for advanced notice of rule making? 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 requests for advanced notice of rule making. See WAC 162-08-600, 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).

REQUESTS FOR ADVANCED NOTICE

WAC 162-08-600 is the relevant regulation, and it addresses requests for advanced notice of rule making as follows:

(1) Form. Requests for advance notice of rule making proceedings, as provided in RCW 34.05.320(3), shall be in writing and shall give the name of the requesting person or organization, and the address to which the notice is to be sent.

(2) Duration. Requests for advance notice of rule making proceedings will be honored for a period of three years after the date of the request, and may be renewed by written notice to the commission containing the information required for the original request.

(3) Where filed. Requests for advance notice of rule making proceedings should be filed at the Olympia office of the commission, attention rules coordinator.

WAC 162-08-600 (emphasis added) (hyperlinks added).

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–gw

Petitions for Rulemaking

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the guidelines concerning petitions for rulemaking? 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 petitions for rulemaking. See WAC 162-08-610, 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).

PETITIONS FOR RULEMAKING

WAC 162-08-610 is the relevant regulation, and it addresses petitions for rulemaking as follows:

Petitions to the commission for the promulgation, amendment, or repeal of a rule under RCW 34.05.330 shall include a statement of the reasons for the requested action, and may be accompanied by a brief of any applicable law. Petitions for the promulgation of a rule shall set out the full text of the proposed rule. Petitions for the amendment of a rule shall identify the rule by its WAC number, and shall contain the complete text of the rule as proposed to be amended, showing additions by underlining the new words and showing deletions by marking them over with a dotted line. Petitions for repeal of a rule shall identify the rule by WAC number, and may quote its text.

WAC 162-08-610 (emphasis added) (hyperlinks added).

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–gw

Withdrawal of Complaint

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, how can a complainant withdraw his/her complaint? 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 how to withdraw a complaint. See WAC 162-08-091, 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).

WITHDRAWAL OF COMPLAINT

WAC 162-08-091 is the relevant regulation, and it addresses the withdrawal of complaints as follows:

(1) Consent necessary. A complaint or any part thereof may be withdrawn only with the consent of the commission.

(2) Form. A request for withdrawal of a complaint must be in writing and signed by the complainant and must state in full the reasons why withdrawal is requested. Blank forms may be obtained at commission offices.

WAC 162-08-091 (emphasis added) (hyperlinks added).

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–gw

Concurrent Remedies

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the limitations for complainants or aggrieved persons that simultaneously pursue other available civil/criminal remedies in addition to, or in lieu of, filing an administrative discrimination complaint with the commission? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

SIMULTANEOUS REMEDIES & LIMITATIONS

The commission has promulgated rules that limit a complainant’s ability to simultaneously seek remedies for discrimination through the commission and other forums. The relevant rule is WAC 162-08-062, and it provides as follows:

CONCURRENT REMEDIES–OTHER REMEDIES

Except as otherwise provided by RCW 49.60.340, the law against discrimination preserves the right of a complainant or aggrieved person to simultaneously pursue other available civil or criminal remedies for an alleged violation of the law in addition to, or in lieu of, filing an administrative complaint of discrimination with the commission, with the following limitations:

(1) ABEYANCE – REAL ESTATE TRANSACTIONS

A complaint of an unfair practice in a real estate transaction filed concurrently with the commission and another federal, state or local instrumentality with whom the commission has entered into a cooperative agreement under the terms of RCW 49.60.226 or other provision of law will be held in abeyance during the pendency of the other proceeding unless the other proceeding has been deferred pending state action under the terms of the cooperative agreement.

(2) ABEYANCE – GENERAL RULE

A complaint of an unfair practice other than in real estate transactions will be held in abeyance during the pendency of a case in federal or state court litigating the same claim, whether under the law against discrimination or a similar law, unless the executive director or the commissioners direct that the complaint continue to be processed. A complaint of an unfair practice other than in real estate transactions will not be held in abeyance during pendency of a federal, state, or local administrative proceeding, unless the executive director or commissioners determine that it should be held in abeyance.

(3) [RELIEF FOR SAME HARM OR INJURY]

No complainant or aggrieved person may secure relief from more than one governmental agency, instrumentality or tribunal for the same harm or injury.

(4) [RES JUDICATA ISSUES]

Where the complainant or aggrieved person elects to pursue simultaneous claims in more than one forum, the factual and legal determinations issued by the first tribunal to rule on the claims may, in some circumstances, be binding on all or portions of the claims pending before other tribunals.

WAC 162-08-062 (some hyperlinks added).

IMPLICATIONS: EMPLOYMENT DISCRIMINATION LAWSUITS

The above rule appears to say, inter alia, that if the commission files a charge of discrimination on behalf of a claimant, and the claimant simultaneously maintains an associated lawsuit in state or federal court (whether under the law against discrimination or similar law), then the commission will merely hold the charge in abeyance during the pendency of the lawsuit; however, the executive director or the commissioners may direct that the complaint continue to be processed notwithstanding the existence of an associated court action.

If the state/federal court is the first to rule on the claims after making factual and legal determinations, then, in some circumstances, those determinations may be binding on the commission in its disposition of the associated charge of discrimination. QUERY: under what circumstances will the determinations of state or federal courts be binding on the commission? In any event, the complainant or aggrieved person may not secure relief from the commission and a federal or state court for the same harm or injury.

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–gw

Sanctions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, how are sanctions applied? 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 for sanctions. See WAC 162-08-015, 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 WSHRC sanction guidelines are based on two categories: (1) Administrative Hearings; and (2) Other Hearings.

1. ADMINISTRATIVE HEARINGS (SUBSECTION 1)

DELAY/FAILURE TO COMPLY: “In a case which has been noted for hearing the administrative law judge, on his or her own initiative or on motion of a party, may order a party or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms or pay compensatory damages including attorney’s fees to any other person who has been harmed by the delay or the failure to comply.” WAC 162-08-015 (hyperlinks added).

CONDITION PRECEDENT: “The administrative law judge may condition the right of a party to take specific action or raise specific defenses on satisfaction of the terms of the order or payment of the damages and attorney’s fees. The administrative law judge may condition the right of a counsel to participate further in the case upon satisfaction of the terms of an order or payment of the damages and attorney’s fees.” Id. (hyperlinks added).

FINAL ORDERS: “The administrative law judge shall incorporate in his or her final order any sanctions order which has not been complied with, so that the sanctions order may be enforced as provided in RCW 49.60.260 and 49.60.270 and appealed from as provided in RCW 34.05.514.” Id. (hyperlinks added).

2. OTHER HEARINGS (SUBSECTION 2)

“In a proceeding not covered by subsection (1) of this section, the chairperson of the commission may order a person or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms, and the chairperson may condition further participation in a proceeding on compliance with these rules or orders imposing terms, but the chairperson of the commission shall not impose sanctions in the form of payment of damages or attorney’s fees.” Id. (hyperlinks added).

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–gw