['Discrimination']
['Discrimination']
04/26/2024
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Summary of differences between federal and state regulations
Beyond the federally protected classes (which include race, color, sex, age, national origin, religion, pregnancy, genetic information, disability, and veteran status), Washington expands the disability discrimination coverage to specifically include the use of a guide dog or service animal. In addition, the state law includes provisions regarding marital status, sexual orientation, HIV or hepatitis C infection, honorably discharged veterans, and military status.
Employer defined
“Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons. It does not include any religious or sectarian organization not organized for private profit.
Nondisclosure and nondisparagement agreements prohibited re.: discrimination
On June 9, 2022, the “Silenced No More Act” went into effect. This law prohibits employers from requiring employees to sign nondisclosure and nondisparagement agreements regarding illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault.
Employers may not discharge, discriminate against, or retaliate against an employee for disclosing or discussing conduct that the employee reasonably believes to be illegal workplace conduct.
Employers may, however, require employees to protect trade secrets, proprietary information, or confidential information that does not involve illegal acts. An employer who violates this law after the effective date may face a $10,000 fine, as well as reasonable attorneys’ fees and costs.
Discrimination because of a guide dog or service animal
The Washington State Law Against Discrimination prohibits unfair practices of discrimination against a person with a disability who uses a trained dog guide or service animal. It is considered an unfair practice to fail to reasonably accommodate a person with a disability who uses a trained dog guide or service animal, unless the employer 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.
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.
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.
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.
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.
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.
Discrimination because of marital status
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:
- Refusing to hire a single or divorced applicant because of a presumption that “married persons are more stable.”
- Refusing to promote a married employee because of a presumption that he or she “will be less willing to work late and travel.”
There are narrow exceptions that an employer may not discriminate on the basis of marital status:
- If a bona fide occupational qualification applies.
- If an employer is enforcing a documented conflict of interest policy limiting employment opportunities on the basis of marital status:
- Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;
- Where one spouse would be responsible for auditing the work of the other;
- 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
- 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.
Discrimination because of sexual orientation
Under Washington state law, the protections for sexual orientation are the same as for other protected classes. The term “sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in the law, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
Discrimination with respect to HIV or hepatitis C infection
No person may require an individual to take an HIV test or hepatitis C test as a condition of hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question.
The other protections with respect to HIV or hepatitis C infection are similar to those for other protected classes (hiring, segregation, and so on). For the purposes of determining whether an unfair practice has occurred, claims of discrimination based on actual or perceived HIV or hepatitis C infection will be evaluated in the same manner as other claims of discrimination based on sensory, mental, or physical disability; or the use of a trained dog guide or service animal by a disabled person. An exemption is provided for a bona fide occupational qualification of the job in question.
Any person who is actually infected with HIV or hepatitis C, but is not disabled as a result of the infection, is not eligible for any benefits under the affirmative action provisions solely on the basis of such infection.
Employers are immune from civil action for damages arising out of transmission of HIV or hepatitis C to employees or to members of the public unless such transmission occurs as a result of the employer’s gross negligence.
Honorably discharged veteran or military status
“Honorably discharged veteran or military status” means a person who is a veteran, or a person who is an active or reserve member in any branch of the armed forces of the united states, including the national guard, coast guard, and armed forces re-serves.
Discrimination towards victims of domestic violence, sexual assault, or stalking
Effective June 7, 2018, employees and applicants are protected from discrimination because they are actual or perceived victims of domestic violence, sexual assault, or stalking.
Under Washington’s law, employers are also required to make reasonable “safety accommodations” for individuals who are victims of domestic violence, sexual assault, or stalking, unless the employer can demonstrate that doing so would impose undue hardship. For these purposes, “undue hardship” means an action requiring significant difficulty or expense.
Reasonable accommodations may include transferring or reassigning an employee; modifying his or her schedule; changing work telephone numbers, work email address, workstations; installing locks, implementing safety procedures, or other adjustments.
Note that state law already allows victims of domestic violence, sexual assault, or stalking to take reasonable leave related to these things. This information can be found in the leave topic.
Posting
The state provides a poster titled “Washington Law Prohibits Discrimination in Employment.”
State
Contact
Regulations
RCW Title 49, Chapter 49.60, Discrimination - Human Rights Commission
WAC Title 162, Human Rights Commission
Federal
Contact
Equal Employment Opportunity Commission (EEOC)
Regulations
See applicable discrimination topic.
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.