Disparate Treatment: Bona Fide Occupational Qualification
Under Washington Law Against Discrimination, what is a bona fide occupational qualification in relation to claims of disparate treatment? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
Under the Washington Law Against Discrimination, RCW 49.60, it is "unlawful for an employer '[t]o discriminate against any person in compensation or in other terms or conditions of employment because of ... [protected class]." Blackburn v. Department of Social and Health Services, 186 Wn.2d 250, 258 (Wash. 2016) (citing RCW 49.60.180(3)).
Disparate treatment "is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their ... [protected status]." Id. (citing Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).
"When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer's action is unlawful unless the employer has a valid justification." Blackburn, 186 Wn.2d at 258-59 (referencing, e.g., Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991)) (internal citation parenthetical phrases omitted) (hyperlink added).
The employer's valid justification is more commonly known as a bona fide occupational qualification (BFOQ).
BONA FIDE OCCUPATIONAL QUALIFICATION
Washington Law Against Discrimination, "RCW 49.60.180[,] allows employers to take protected characteristics into account in limited circumstances." Blackburn, 186 Wn.2d at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings" for the practical realization of equality of opportunity between the sexes"), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)) (hyperlink added).
THE BFOQ TEST: "In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job." Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).
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 either this author or Williams Law Group; please see our DISCLAIMER.