*1 сontinuing prac- those from Western enjoining Great order of law. to be the unauthorized tices determined Utter, Hamilton, Brach- Wright, C.J., Rosellini, Hicks, JJ., Dolliver, concur. Horowitz, tenbach, 21, February 1979. Reconsideration denied November 1978.] En Banc. 45357. [No. Washington Company, Power Water Respondent, Washington Com Human State
mission, Appellant. *2 General, Rodgers, Gorton, аnd G. Saxon Attorney Slade Assistant, for appellant. Gary A.
Paine, Lowe, O'Kelly, & Coffin, Herman Dahlke, respondent. F. Thompson Diana on Margaret
M. McKeown Lawyers, amicae curiae. Washington Women behalf action, brought under RCW 34.04- J. In this Rosellini, declaratory judgment .070, obtained a State Human by Washington promulgated a rule authority. in excess of its Commission was 49.60) (RCW rule wаs made statute under among includes employment and unfair defines on "marital status" based practices discrimination such 49.60.180). (RCW determined, after a number of receiving
The commission among employers some complaints, there exists "anti-nepotism." known as employment policy state an adopted, employer kind is Where а of this two spouse employee, to hire a of an and when refuses other, marry one of the two is terminated. employees each among this them employers adopted policy, Some who have opportunity married respondent, give couple Where such discharged.1 poli- decide which will be spouse effect, and the applicant cies are the refusal to hire an consideration of a is done without discharging relationship of the marital being given the actual effect work, performance. the individual's qualifications receiving conducting hearings inviting After the commission deter- parties, comments from interested no cаses where actual business practice, mined that involved, discrimination within necessity was constituted 49.60.180, .190 and .200. of RCW meaning 162-16-150, pertinent adopted WAC commission part of which reads: *3 Spouse. Because of WAC Discrimination 162-16-150 49.60.180, Authority.
(1) implements This section 49.60.200, discrimina- which declare that 49.60.190 and tion practice of marital status or sex is an unfair unions, employment agencies, employers, of labor respectively.
(2) In Exception. General Rule discrimi general, for employment an or against employee applicant nation (b) (a) is; status who of what a because his or her unfair (c) does, is; spouse or what the is an spouse per action is based on the prаctice because the may It also be an unfair marital status. son's because sex, much more than where it burdens women However, men, there are or much more than women. men may necessity jus business certain circumstances where does, and basis of what tify action on the to come the action will be considered where this is so employees usually as 1Anti-nepotism policies close relatives of cover other any expression well, of intent find in the statute commission did not but the type prohibit this of discrimination. exception qualification occupational the bona fide within "Business rule of nondiscrimination. general cir includes those this sectiоn necessity" purposes based are actions employer's cumstances where avoid business-related need to and essential compelling reality appearance or interest, or to avoid the conflicts of favor.[2] influence improper who by employees When, it was confronted subsequently, the dis- marry and to resist intention to announced their brought spouses, of the charge one Superior validity regulation. suit to test status" should be Court held that the words "marital them, and that meaning ordinarily accorded literal status", the fact that one is while it denotes one's "marital married, identity or situa- or is not does not embrace had spouse. tion of one's It held that which for- authority a rule adopted exceeded its when beyond employee's bade which looked of his or identity occupation bare marital status to spouse. her
An limited in its administrative agency authority specifically granted to those which have been Comm'n, & Transp. Cole State Util. legislature. howevеr, legislature, 79 Wn.2d P.2d 71 involving to make decisions delegate neces which are professional expertise, administrative rule is sary general of the act. The carry out delegation prohibition against the constitutional delegation does not to adminis power preclude to determine some power trative officеs or boards of the fact or of the law is things upon application state made to enunciates standards depend, provided the law discriminatory practices, gives examples of 2The remainder of the rule any given requires discriminatory practice" followed in situa be the "least *4 tion, proving employer's duty, places the burden of that on the defines limitations justified, explains significance as to of discrimination is the discrimination give spouses, will commission's staff and advises that the relatives other than regulation. compliance on with the informal advice 66 O'Connell or guided. officers boards must be
Conte, 280, (1969). Wn.2d P.2d 76 456 317 us, then,
The question before
is whether
the commission,
intended to
for
confine the
its search
dis-
criminatory
individual
practices,
instances where an
is
divorced,
against solely
discriminated
because he is
or wid-
owed,
married,
single,
or
or
without
to the iden-
reference
affluence,
tity,
or
of
occupation,
spouse.
other attribute
Any inquiry
legislative
into the
intent
requires
we examine the statutе as a
and
effect to all its
give
whole
College
Greenwood v. State Bd.
Community
parts.
Educ.,
(1973).
667,
82 Wn.2d
P.2d
In determining
intent,
legislative
for which a law was enacted
is a matter of
prime importance
arriving at a correct
which
interpretation,
thing
object,
and a
is within the
and
of
spirit,
meaning
the statute is as much within the
In
re Estates
Don
if
statute as
it werе within the letter.
of
nelly, 81 Wn.2d
1163,
502 P.2d
In a liberal construction provisions is their In RCW purpose. directed achieve 49.60.030, to be free from discrimination right *5 sec- civil While there a definition to be a is right. declared creed, "race, no to define following, attempt tion is made did color, status, sex, handicap." legislature marital The within the however, "ancestry" include necessary, find it to of "national origin." definition Human as the up
The set is now known legislature what functions, powers and it certain gave Commission to duties, policies and formulation of among them the 49.60.110) (RCW and of chapter effectuate out the carry of to regulations rules and promulgation of provisions chapter policies practices of the and the and 49.60.120(3)). (RCW The connection therewith board advisory create legislature power to gave agencies study problems conciliation to councils spe- specific relationships all or fields of human ... cific instances of discrimination to make recommen- development to the board for policies dations procedures . . .
RCW 49.60.130. is made for and sub- holding hearings
Provision designates practices of witnesses. act unfair poenaing The transactions, transactions, with to crеdit respect insurance unions, labor employment, places employment agencies, amusement, resort, accommodation, public assemblage, .215, 49.60.170-.200, .220- real RCW estate transactions. against .224. to practice It is made an unfair discriminate (RCW 49.60.210) or to person practice an unfair opposing (RCW 49.60.220). aid a violatiоn remainder chapter to provisions. is devoted enforcement 49.60.180(1) for an makes it an unfair to, things, person refuse other hire employer among to status, is the refusal unless such qualification. based bona fide upon occupational whole, Reading apparent as a to broad give intended to the commission investigate policies respect prac- and formulate tices which involve discrimination based those attri- butes, conditions, and situations which it had found to constitute an unfair basis for such discrimination. It did not attempt designate all of the which constitute gave such discrimination, but rather the board the author- ity conducting investigations, so, to do after consulta- hearings provided chapter. tions and for in the designation types condemned, of discrimination conjunction pur- taken with the statement of pose, guidelines furnished for the board's determination. complaints they
Here of citizens that had been discrimi- against nated because of their marital status drew the praсtice refusing commission's attention the to hire spouses, practice "anti-nepotism." known as Its investi- gation revealed that in most cases there was no bona fide justification business for this discrimination. The record indicates that the commission took notice the fact that employers policy generally who do not havе such a have not subjected been to the evils feared those who utilize it. It that, concluded therefore whether or not it is intended as discharge employee such, the of an or the refusal to hire an applicant employer or because his her works for the necessarily employee's involves an examinatiоn of an mari- tal status and therefore is discrimination based such status. recognized
At the same time it that there be situa- type justified in tions which this of discrimination for legitimate spouse supervises reasons, business as where one spouses other, work, or audits his or her where the potential competition in are direct with each other. Pro- vision was made for such cases. pursuant specific
Administrative rules enacted
to a
legislative delegation
presumed to
are
be valid and should
they
reasonably
upheld
judicial
on
review when
con
be
are
being implemented. Also,
in
sistent
the statute
con
struing
ambiguous
give great
statute,
court must
weight
interpretation
to the statute's
administrative
administration,
absent a
charged
which is
with its
agency
interpretation
conflicts
indication
such
compelling
Weyerhaeuser
Depart
Co.
intent.
with the
Wn.2d
When read of the entire the provision any per- makes it an unfair to refuse to hire son of such . . . "because marital status" is broad enough import its to cover the situation involved here. argues could not have intended provision apply to anti-nepotism practices because at the time the marital status amend- adopted, Representatives ments were the House of itself had a rule which spouses made its members ineligible *7 rule, note, in employment the house. The we also made persons over 70 ineligible, an unfair under the theory statute. The respondent's is that the members of the house could not have entertained an intent inconsistent own their house rule. know of no principle statutory
We construction body holds that the rules of a relevant legislative are in persuasive interpretation the of a statute. Further more, rule, with respect provision making the at least spouses ineligible, may justification. well have some in position private employer, house is a different from the in employees paid public that its are out of funds over control, quite likely exercises and it is in nepotism hiring employees upon
that the is not looked by with favor the The need for the public. "appearance in spouses' fairness" this well the outweigh situation by in marital obtaining employment interest unburdened status discrimination.
However, validity we do not the propose assess house rule under that statute. We unaware of are a authority has been shown which holds that and none to exam- legislative history proper house rule is source intent, no reason hav- looking ine when ing justify adoption advanced of such been inconsistency not find the suffi- principle, apparent we do in the ciently expressed relevant to overcome the intent statute. statutory
It within was of the commission in question. rule Since have determined adopt we that was in that justified determining in anti-nepotism discrimination involved the respondent's status, not assess policy upon was based we need commission and argument, further advanced curiae, of this kind often employment policies amicae that result as sex discrimination well. commission,
By a trial amendment consented to declаratory asked the court below for a authority to the commission has no judgment that because process alleging practices unfair complaints this Court Superior pass marital status. The did not immaterial, evidently that it was question, concluding anti-nepotism view of holding respondent's its beyond was the reach of the statute. 49.60.120(4) isolаtion, If appear it would is read That indeed has merit. respondent's contention provides: section
(4) receive, To investigate, pass upon complaints alleging unfair as defined sex, race, creed, color, or the origin, national mental, any sensory, physical handicap. presence
71 whole, as a exаmined However, is when the only omits not section is seen. The ambiguity as an of which is defined (discrimination basis on the status 49.60.180(l)-(4); .178; 49.60.176, in RCW unfair practice (made an .222), age it also omits 49.60.190, but .200 and 49.60.180(l)-(4), in RCW for discrimination unfair basis (RCW to unfair .200), of opposition fact .190 and 49.60.220). (RCW 49.60.210) of violations aiding dis suffering persons to expressly grants RCW 49.60.230 file right to sections the forbidden these crimination mandates RCW 49.60.240 complaints and respect findings make investigate complaints all to them. is to make a statute duty interpreting
The court's Hull, 546 State 86 Wn.2d effective. purposeful and (1976). of discrimi- Only if the recitation of bases P.2d 912 49.60.120(4) as illustrative in RCW is viewed nation found inclusive, to the entire stat- given effect be rather than can adopt. which we interpretation it is this Consequently, ute. The is reversed. judgment Horowitz, Dolliver, Stafford, Utter,
Hamilton, JJ., concur.
Hicks, is whether presented issue (dissenting) J. —The Commission exceeded Human Washington State RCW 49.60 a rule under adopted its when it marital status prohibition against per status se person's marital beyond a was extended court trial spouse. or her The occupation of his identify in excess promulgated rule was the commission's held that legisla- its majority imposes statutory authority. of its have should what regarding tive opinion I court. dissent. enacted, and reverses the trial court is that absent by this litany frequently repeated A "ordinary, definition, their words must be Jones, Co. v. York Ins. 86 New meaning." everyday Life as questioned 44, 47, P.2d When 989 Wn.2d status", "marital identi- ordinarily respond one does not fying appropri- one's and his or her occupation. ordinary whether one is response ate indicate *9 married, to single, widowed or divorced "without reference identity, occupation, affluence other attributes spouse."
While the authority investigate commission has broаd to rules, promulgate it not exceed the of RCW 49.60. granted "carry provisions" out alia, inter Under it is an "unfair practice", discharge any hire or "because of" such person status" —not "(b) who his or her "marital because of (c) is; or ..." WAC 162-16- spouse what the does unwilling I extension 150. am sanction the commission's authority. of its own without Wright, C.J., J., Brachtenbach, Hicks, concur J. 45494. En Banc. November
[No. 1978.] In the Matter the Personal Restraint Petitioner. Farney,
Kevin Allen