Unfair Practice Archives • WSHRC Digest

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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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

Public Accommodations — Unfair to Request or Require Waiver of Rights

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Public Accommodations (Disability Discrimination) regulations, what are the rules concerning requesting or requiring waiver of rights? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt Public Accommodations (Disability Discrimination) regulations regarding requesting or requiring waiver of rights. See WAC 162-26-140, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

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

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

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

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

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

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

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–gw

Public 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

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

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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–gw

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

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