MICHAEL L. FAHN, ET AL, Respondents, v. COWLITZ COUNTY, Defendant, CIVIL SERVICE COMMISSION OF COWLITZ COUNTY, Appellant, WASHINGTON STATE HUMAN RIGHTS COMMISSION, Respondent.
No. 45842
En Banc.
April 24, 1980.
368
John A. Barlow and Walstead, Mertsching, Husemoen, Donaldson & Barlow, for respondents.
WILLIAMS, J.— This is a direct appeal by the Cowlitz County Civil Service Commission from a summary judgment based on the commission‘s violation of an administrative regulation promulgated by the Washington State Human Rights Commission. The Civil Service Commission challenges both the validity of the regulation and the trial court‘s award of damages and attorney fees to respondents Michael L. Fahn and Day D. Parkhill. We find a portion of the regulation to fall outside the delegated authority of the Human Rights Commission and therefore reverse the trial court‘s order of summary judgment and the award of damages and attorney fees.
Appellant Cowlitz County Civil Service Commission is an agency charged with the duty to establish a merit system of employment for county deputy sheriffs, pursuant to
Respondents then brought an action for declaratory judgment that the height regulation constituted a violation of
Appellant asserted in its answer that the height minimum was a valid job requirement, that Fahn and Parkhill were not members of a protected minority, and that
Upon motions by respondents and the Human Rights Commission, the trial court granted summary judgment. The judgment was based on the conclusion that
At a subsequent hearing, the court awarded damages of $1,043.50 to Fahn. Parkhill could not show damages and did not claim them. The court also awarded $2,500 in attorney fees, plus costs, to respondents and ordered appellant to restore Fahn to his place on the eligibility list and to permit Parkhill to sit for the next Civil Service examination.
I
Since we are reviewing an order of summary judg-
In this action brought under
The validity of
The questions we face then are: whether the legislature intended to grant to the Human Rights Commission the authority to determine that a preemployment inquiry regarding height and weight is an unfair employment practice under
It is well settled that an administrative agency is limited to the powers and authority granted to it by the legislature. Washington Water Power Co. v. State Human Rights Comm‘n, 91 Wn.2d 62, 65, 586 P.2d 1149 (1978); Cole v. State Util. & Transp. Comm‘n, 79 Wn.2d 302, 485 P.2d 71 (1971). The legislature may, however, delegate to an administrative agency the power to determine a fact or state of things upon which application of the law is made to depend, provided the law enunciates standards which may guide the administrative officers or board. Washington Water Power Co., at 65-66; O‘Connell v. Conte, 76 Wn.2d 280, 285, 456 P.2d 317 (1969). Moreover, we have frequently declared that administrative rules adopted pursuant to a legislative grant of authority are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the statute being implemented. Washington Water Power Co., at 68; Weyerhaeuser Co. v. Department of Ecology, 86 Wn.2d 310, 314, 545 P.2d 5 (1976).
In determining the nature of the authority delegated to the Human Rights Commission, we must first examine the purposes for which the law against discrimination was enacted. The statement of purpose,
There is little doubt that the Human Rights Commission may prohibit preemployment inquiries which specifically discriminate against one of the protected categories set
We note at the outset that there are no Washington cases on the disparate impact of facially neutral employment standards on protected classes. This has been an active area in the federal courts, however, where frequent litigation has arisen under Title VII of the Civil Rights Act of 1964, as amended,
The virtually unanimous view of the federal courts is that facially neutral height requirements have a disproportionately unfavorable impact on certain protected classes, especially women and some minority groups such as Mexican-Americans. Rawlinson; Blake v. Los Angeles, 595 F.2d 1367 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980); Davis v. County of Los Angeles, 566 F.2d 1334, 1341-42 (9th Cir. 1977), vacated on other grounds, 440 U.S. 625 (1979); United States v. Buffalo, 457 F. Supp. 612 (W.D.N.Y. 1978); Mieth v. Dothard, 418 F. Supp. 1169 (M.D. Ala. 1976) (3-judge court), aff‘d in part and reversed in part on other grounds sub nom. Dothard v. Rawlinson, 433 U.S. 321 (1977); League of United Latin American Citizens v. Santa Ana, 410 F. Supp. 873 (C.D. Cal. 1976); Officers for Justice v. Civil Serv. Comm‘n, 395 F. Supp. 378 (N.D. Cal. 1975). Moreover, the Equal Employment Opportunity Commission has said it will look with “particular concern” at height and weight standards which tend to deny equal opportunity to certain groups which because of national origin tend to
There is thus ample authority establishing the probability that height standards have a disparate impact on certain groups. In keeping with the broad directive from the legislature to the Human Rights Commission, therefore, we believe it is well within the agency‘s authority to determine that a preemployment inquiry with respect to height and weight, when not related to job requirements, is an unfair employment practice because of its unfavorable impact on some classes of persons protected by the statute.
B
This conclusion does not entirely dispose of the matter, however. Appellant contends that the standard for showing a job requirement places an unreasonably high burden on employers and in fact renders meaningless that portion of the provision which allows a height or weight inquiry when related to a job requirement.
It bears repeating that the regulation, in addition to declaring unfair a height inquiry which is unrelated to job requirements, also provides that height cannot constitute a job requirement unless the employer can show that no employee with the ineligible height could perform the job.
We agree with appellant that the regulation has the effect of preventing an employer under circumstances similar to those in the present case from ever being permitted
In analyzing this portion of the regulation, we again find it helpful to turn to federal law, as we have done in other cases interpreting
Discrimination cases brought under Title VII may take one of two forms, either “disparate impact,” or “disparate treatment” (also called overt discrimination). See especially International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977). See generally S. Agid, Fair Employment Litigation: Proving and Defending a Title VII Case 527-34 (2d ed. 1979). These two forms have been contrasted as follows:
“Disparate treatment” . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265-266 (1977). Undoubtedly disparate treat-
ment was the most obvious evil Congress had in mind when it enacted Title VII. . . . Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. [See Rawlinson; Albemarle Paper Co.; and Griggs.] Proof of discriminatory motive, we have held, is not required under a disparate impact theory. Compare, e.g., Griggs v. Duke Power Co., 401 U. S. 424, 430-432 (1971), with McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806 (1973).
International Bhd. of Teamsters, at 335-36 n.15; see also Furnco Constr. Corp., at 581-83 (Marshall, J., concurring in part and dissenting in part).
The federal disparate treatment cases reveal that the employer may raise the defense that the otherwise prohibited discrimination is a bona fide occupational qualification (BFOQ), which is “reasonably necessary to the normal operation of that particular business or enterprise . . .”
The BFOQ defense is available only in cases of disparate treatment. Dothard v. Rawlinson, 433 U.S. 321, 332-33 (1977); Diaz, at 387;
The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
... Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.
Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971).
The United States Supreme Court has established a method for the allocation of the burden of proof in cases involving the business necessity defense to a claim of disparate impact. First, it is initially incumbent on the plaintiff to make out a prima facie case of discrimination, i.e., to show that the practice in question selects applicants in a way that significantly discriminates against a protected class. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). Once the plaintiff makes the required showing, the burden shifts to the employer to show that the challenged requirement has a “manifest relationship” to the position in question. Griggs, at 432; Rawlinson, at 329. Finally, if the employer does prove that the requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect will “serve the employer‘s legitimate interest in ‘efficient and trustworthy workmanship.‘” Albemarle Paper Co., at 425, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973).
In determining what is business necessity in such cases, federal courts have created varying standards, ranging from reasonably light to very stringent burdens on employers. See Griggs, at 432 (the requirement must merely have a “manifest relationship” to the employment in question);
Our review of the federal cases discloses that regardless of whether the claim is one of disparate treatment or disparate impact, the courts always allow the employer some opportunity to show the necessity for the discriminatory practice. Rawlinson, at 329, 333; Griggs, at 431-32. It is evident that such an opportunity is required because employers have legitimate interests in “efficient and trustworthy workmanship” which must be served. McDonnell Douglas Corp., at 801; Albemarle Paper Co., at 425. As the United States Supreme Court explained in Griggs, at pages 430-31:
Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. . . . What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment. . . .
(Italics ours.)
The test formulated by the Human Rights Commission in
No case or statute has been brought to our attention that imposes the logically impossible burden to show “all“, as is required by the Human Rights Commission. See Philadelphia v. Pennsylvania Human Relations Comm‘n, 7 Pa. Commw. Ct. 500, 300 A.2d 97 (1973). Nor have respondents advanced persuasive arguments that the statute allows for such a burden to be placed on employers. Although the law against discrimination lodges broad authority in the Human Rights Commission with respect to the “elimination and prevention of discrimination in employment” (
As we have often held in the past, the power of an administrative agency to promulgate rules does not include the power to legislate. Smith v. Greene, 86 Wn.2d 363, 371, 545 P.2d 550 (1976). Administrative rules may not amend or change enactments of the legislature. Kitsap-Mason Dairymen‘s Ass‘n v. State Tax Comm‘n, 77 Wn.2d 812, 815, 467 P.2d 312 (1970).
In the law against discrimination, the legislature has established the categories of persons to be protected by the statute.
Accordingly, we hold that portion of
II
The trial court awarded damages of $1,043.50 to respondent Fahn and attorney fees of $2,500 to both respondents. Since, as a result of our ruling, the case is not yet resolved, neither side may at this juncture recover any attorney fees. The same is true of the damage award to Fahn, and we therefore reverse the trial court‘s order awarding these sums.
Our disposition makes it unnecessary for us to address appellant‘s contention that statutory attorney fees are not recoverable to financially able plaintiffs absent an express agreement by them to pay the legal fees arising from the suit. Moreover, we need not consider the argument that
UTTER, C.J., and BRACHTENBACH, HOROWITZ, and HICKS, JJ., concur.
DOLLIVER, J. (dissenting)—The majority has taken a relatively simple and straightforward case and by its opinion has needlessly complicated the law. What were the facts before the trial court? Plaintiff Fahn, who took the examination for deputy sheriff, was removed from the eligibility list because he was under 5 feet 9 inches in height, while plaintiff Parkhill was not allowed to take the examination because he was under 5 feet 9 inches. In his deposition, the undersheriff of Cowlitz County stated there currently are three deputies who are under 5 feet 9 inches and that in no case is height an impediment to their ability to do the work. The undersheriff was not well acquainted with the work of Parkhill but stated that apart from the bar of the height requirement he would like to have Fahn as a deputy.
Only two questions need to be answered: (1) Are plaintiffs in a class protected by
I
The majority contends at page 382-83:
Since [the regulation of the State Human Rights Commission] prevents preemployment inquiries based on height and weight in virtually all situations, the regulation in effect establishes a new protected class composed of all persons who would be disadvantaged by a height or weight requirement. In our view, however, the designation of any additional categories of protected persons is clearly a legislative function.
There are two answers to this assertion, the first of which has been provided by the majority opinion.
2. In Chicago, Milwaukee, St. P., & Pac. R.R. v. State Human Rights Comm‘n, 87 Wn.2d 802, 805, 557 P.2d 307 (1976), we said:
A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental, or physical faculties. A “handicap” is: “. . . a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work.”
Thus, while a person who has a “physical handicap” would be in a protected class, taken alone Milwaukee would seem to bar mere height as being a protected classification.
In interpreting the law against discrimination,
Reading this chapter as a whole, it is apparent that the legislature intended to give to the commission broad
powers to investigate and formulate policies with respect to practices which involve discrimination based upon those attributes, conditions, and situations which it had found to constitute an unfair basis for such discrimination.
Washington Water Power Co. v. State Human Rights Comm‘n, 91 Wn.2d 62, 67-68, 586 P.2d 1149 (1978).
The Court of Appeals in Barnes v. Washington Natural Gas Co., 22 Wn. App. 576, 583, 591 P.2d 461 (1979), added, I believe correctly, a further dimension to the issue of defining “handicap“. It said:
Public policy, expressed by the Act to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.
While shortness of stature is not, on its face, a physical handicap and thus shorter persons who do not qualify by either “disparate impact” or “disparate treatment” are not per se in a protected class, if the height of an employee or an applicant for employment is perceived by the employer to be a physical handicap, then, by action of the employer, the plaintiffs are in a protected class. If height in the view of the employer becomes “a disadvantage that makes achievement unusually difficult” and “a physical disability that limits the capacity to work” (Milwaukee, at 805)— clearly the position of the defendants here — then height is a protected classification and the questioning of prospective employees as to their height can be made only if it is based on a bona fide occupational qualification.
The legislature has declared the law against discrimination should be construed liberally so as to prevent and eliminate discrimination in employment.
Once it has been determined plaintiffs are members of a protected class, the only remaining question is whether defendant, who is discriminating against plaintiffs, is doing so on a bona fide occupational qualification.
The majority contends the language of
The majority further asserts “common sense tells us that at least one person [under 5 feet 9 inches] of unusual physical capabilities could be found somewhere and shown capable of performing the job“. But if this is so, and somewhere this superperson is lurking, it simply proves the point: height is not a bona fide occupational qualification. If an employer wants to prevent persons from being hired because they fail to meet a single physical standard, it must show that such a standard is crucial to the job; it is a bona fide occupational qualification; and no one who suffers from the disability could perform the job. This should not be too difficult if the claimed disability is real. Even if credence is given to the superperson argument of defendant, one‘s credulity is strained to believe not just one but three such individuals showed up in Cowlitz County and were hired as deputy sheriffs.
If the sheriff‘s department hired deputies only 5 feet 9 inches or over, defendant could easily present its case for job relatedness. For example, in this case, the defendant summarized affidavits from law enforcement officers which
Finally, and I believe conclusively, even though
It is an unfair practice for any employer:
(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: Provided, Nothing contained herein shall prohibit advertising in a foreign language.
(Italics mine.) By the terms of the statute, an employer cannot make any inquiry as to a physical handicap (height) unless the handicap, and the handicap alone, is shown to be a bona fide occupational qualification. The statute is no less stringent than
As I read the majority, although it appears to be saying that if plaintiffs start over again they will prevail, it apparently feels there must be a reversal because of its analysis of this case and the applicable law. This is unnecessary. The plaintiffs are covered by the statute; the regulation is
ROSELLINI and WRIGHT, JJ., and RYAN, J. Pro Tem., concur with DOLLIVER, J.
Notes
“Section 6.7 Physical Standards
“A. Height:
“Each applicant for deputy sheriff must be at least 5’ 9” in height and weight must be in proportion to height in accordance with LEFF standards.” County of Cowlitz, Rules for the Civil Service Commission of the Sheriff‘s Office, 10 (1976).
“It is an unfair practice for any employer:
“. . .
“(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: Provided, Nothing contained herein shall prohibit advertising in a foreign language.”
“(3) The examples in the following chart of fair and unfair preemployment inquiries are intended to define what is an unfair practice under
SUBJECT
...
g. Height and Weight
FAIR PREEMPLOYMENT INQUIRIES: Inquiries as to ability to perform actual job requirements. Being of a certain height or weight will not be considered to be a job requirement unless the employer can show that no employee with the ineligible height or weight could do the work.
UNFAIR PREEMPLOYMENT INQUIRIES: Any inquiry which is not based on actual job requirements.”
“(a) . . .
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual‘s race, color, religion, sex, or national origin.”
We note parenthetically that whatever burdens are imposed, employers face a difficult task in persuading courts that height standards constitute a business necessity. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 331-32 (1977); Blake v. Los Angeles, 595 F.2d 1367, 1376 (9th Cir. 1979), cert. denied, 446 U.S. 928 (1980); Vanguard Justice Soc‘y v. Hughes, 471 F. Supp. 670, 710-17 (D. Md. 1979); United States v. Virginia, 454 F. Supp. 1077, 1087-89 (E.D. Va. 1978).