The Washington State Human Rights Commission


Under Washington State laws, what is the Washington State Human Rights Commission (WSHRC) and how can it help victims of employment discrimination? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


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The state of Washington established the WSHRC in 1949 to enforce the Washington Law Against Discrimination ("WLAD"), RCW 49.60.  The WLAD "protects all people in Washington from unfair and discriminatory practices in employment, real estate transactions, public accommodations, credit, insurance, as well as health care whistleblower, and state employee whistleblower complaints." WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21) (emphasis added).

But why should a victim of employment discrimination consider the WSHRC? A good place to begin is by considering available WSHRC remedies, as enumerated by the Washington Administrative Code ("WAC").

REMEDIES

Pursuant to WAC 162-08 (Practice and Procedure), the WSHRC is empowered as follows:

(1) Power of administrative law judge. The administrative law judge has the power to exercise the general jurisdiction of the commission to eliminate and prevent discrimination by means of orders to respondents who have been found after hearing to have engaged in an unfair practice or practices.

(2) General objectives. An order should generally both eliminate the effects of an unfair practice and prevent the recurrence of the unfair practice. The effects of an unfair practice are eliminated by restoring the victims of the unfair practice as nearly as possible to the position they would have been in if the unfair practice had not occurred. It is appropriate to eliminate the effects of the unfair practice on persons other than the complainant or complainants, and to consider the deterrent effect of an order on persons other than the respondent or respondents. The objective of the law is to eliminate and prevent discrimination, not merely to provide treatment for victims of discrimination.

(3) Cease and desist. In every case where the administrative law judge finds that a respondent has engaged in an unfair practice the administrative law judge shall order the respondent to cease and desist from that unfair practice.

(4) Examples of remedies. Included among remedies that will effectuate the purposes of the law against discrimination in an appropriate case are the following:

(a) An order to hire persons who have been unfairly denied employment;

(b) An order to reinstate persons who have been unfairly terminated, downgraded, or reclassified;

(c) An order to upgrade persons who have been unfairly denied promotion;

(d) An order to pay back pay to a person or persons who would have had a job but for the unfair practice of the respondent;

(e) An order to pay an amount equal to the difference in pay between the job the persons had and the job they would have had but for the unfair practice of the respondent;

(f) An order restoring employment benefits, such as insurance benefits, retirement contributions, sick leave, vacation benefits, seniority standing, etc., lost or not gained because of an unfair practice;

(g) An order to admit persons to membership in a union which has unfairly excluded the persons and dispatch them to jobs in accordance with uniform rules applicable to all members;

(h) An order to merge or otherwise restructure a seniority system that unfairly disadvantages a protected class of persons;

(i) An order to rent or sell real property to persons who have been unfairly denied the property;

(j) An order to grant credit to persons who have been unfairly denied credit;

(k) An order to reimburse or compensate persons for the excess cost of credit caused by an unfair practice;

(l) An order to issue or renew insurance to persons who have been unfairly denied the insurance;

(m) Except as may be provided for complaints of unfair practices in real estate transactions, an order to pay a sum of money of up to ten thousand dollars to compensate persons for humiliation and mental suffering caused by an unfair practice;

(n) An order assessing a civil penalty against the respondent as authorized by RCW 49.60.225 (1) and (2);

(o) An order to pay interest on money that should have been paid at an earlier time, but for the unfair practice. Interest may be calculated at the current market rate for unsecured personal loans from institutions other than small loan companies licensed under chapter 31.08 RCW;

(p) An order to not retaliate against a complainant, witness, or other person for filing a complaint, testifying, or assisting in any proceeding under chapter 49.60 RCW;

(q) An order to institute affirmative programs, practices, or procedures that will eliminate an unfair practice or its effects, or will prevent the recurrence of the unfair practice;

(r) An order for any other remedy which is available under comparable civil rights laws of the United States or other states, including the federal Fair Housing Amendments Act of 1988, 42 U.S.C. sec. 3601 et seq.

This list is not exhaustive. An administrative law judge may make any order that will effectuate the purposes of the law against discrimination, provided the order is in compliance with the rules of the commission and is not otherwise prohibited by law.

(5) Remedies not authorized. Except as may be otherwise provided for a complaint alleging an unfair practice in a real estate transaction, an administrative law judge is not authorized to order:

(a) The payment of punitive damages;

(b) The payment of fines payable to the state.

(6) No order effectuating the law against discrimination in real estate transactions shall affect any contract, sale, encumbrance, or lease consummated before the issuance of such order and involving a bona fide purchaser, encumbrancer or tenant without actual notice of the complaint filed under this chapter.

(7) Treatment of unemployment compensation. When an order is made for payment of wages lost during a time when the beneficiary of the order was receiving unemployment compensation, the amount of the award shall not be reduced by the amount of unemployment compensation received. The order may make provision for payment of the portion of the award covered by unemployment compensation jointly to the beneficiary and the Washington state department of employment security, or to the department alone. (Under Washington law, it is the duty of the employee to reimburse the department of employment security when back pay is received for a period during which the employee collected unemployment compensation.)

(8) Persons for whom relief can be ordered. The administrative law judge may order that remedies for an unfair practice be paid or accorded to the named complainant or complainants, and, in addition, to any other persons identified as having been injured by the unfair practice.

(9) Nature and purpose of order. An administrative order is one means of carrying out the public purpose of the law against discrimination: To eliminate and prevent certain discrimination. The administrative law judge in framing its order shall be guided by this public purpose. The administrative law judge's task is not the determination of private rights. See WAC 162-08-061, 162-08-062. The administrative law judge is not required to observe conventional common law or equity principles in fashioning the order. The guiding principle for the administrative law judge is whether a particular remedy will effectuate the purposes of the law against discrimination. An order requiring a respondent to pay money to a person as back pay, or to compensate for some other loss, is not a private award of damages, but is a public reparation order. Except as may be otherwise provided in RCW 49.60.260 and WAC 162-08-288, only the commission can enforce the order. The beneficiary has no property right in the money until he or she receives it. See WAC 162-08-305.

(10) Retention of jurisdiction. In appropriate cases the administrative law judge in his or her order may retain jurisdiction for a reasonable period of time for the purpose of determining compliance with his or her order or issuing orders supplementing or modifying the original order. If the administrative law judge does not retain jurisdiction through a provision of his or her order he or she has no jurisdiction to modify or supplement his or her order, except on reconsideration (WAC 162-08-311). Retention of jurisdiction by the administrative law judge under this subsection does not prevent the administrative law judge's order from being final for the purpose of judicial review or enforcement.

WAC 162-08-298

Victims seeking any of the above relief through the WSHRC typically encounter and/or address the following issues: (1) Jurisdictional Criteria; (2) Protected Classes; (3) Prohibited Employment Practices; (4) How To File A Complaint; (5) The Employer's Responsibility; (6) Burden of Proof; and (7) the Investigation.

(1) JURISDICTIONAL CRITERIA

The jurisdictional criteria for the WSHRC include the following:

(1)  Employer has at least 8 employees (does not include religious organizations).

(2)  Signed complaints need to be filed within 6 months of last date of alleged discrimination.

WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21).

(2) PROTECTED CLASSES

"The [Washington Law Against Discrimination] … prohibits unfair employment practices because of a person’s:
WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21) (hyperlinks added).

(3) PROHIBITED EMPLOYMENT PRACTICES

Employers may not use protected classes, immediately above, as a basis to engage in any of the following:
  • An EMPLOYER may not: (1) refuse to hire a person, (2) discharge or bar a person from a job, (3) discriminate in compensation or other terms or conditions of employment, (4) print, circulate, or use any discriminatory statement, advertisement, publication, job application form, or make any inquiry in connection with prospective employment that is discriminatory.
  • EMPLOYMENT AGENCIES may not: (1) discriminate in classification or referrals for employment, (2) print or circulate any discriminatory statement, advertisement, or publication, or (3) use discriminatory employment application forms, or inquiries made in connection with prospective employment.
WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21). It is important to note that the above unlawful employer-actions MUST be based upon a PROTECTED CLASS to be viable.

(4) THE COMPLAINT: HOW FILED

There are a few methods of initiating a complaint of discrimination through the WSHRC:
  • Intake call or in-person interview: Goes to the Intake Unit to determine jurisdiction, followed by an intake questionnaire if in the WSHRC ’s jurisdiction.
  • Print out and send in online intake questionaire [sic]
  • Intake questionaire [sic] must be received by WSHRC within six months of alleged discriminatory action.
  • You may receive a written charge to sign and return to WSHRC.
  • Complaint assigned to investigator.
WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21).

(5) THE COMPLAINT: EMPLOYER'S RESPONSIBILITY

Pursuant to the Washington Administrative Code (WAC): "[W]ithin a reasonably prompt time after a complaint is filed the staff shall furnish a copy of the complaint to the respondent and shall afford the respondent an opportunity to reply in writing. No error or omission in carrying out this step shall affect the validity of the complaint or prevent further processing of it." WAC 162-08-094. Thereafter, the WSHRC requires the employer to take the following actions:
  • Send a written response to the charge within 15 days.
  • Give its position on the alleged unfair action(s).
  • Provide relevant documentation.
  • Provide witness names and contact information.
WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21). NOTE: it is common for employers to request extensions of time to send their "written response to the charge[.]"

(6) BURDEN OF PROOF

In Washington, victims typically prove employment discrimination via direct or circumstantial evidence. Per the WSHRC:
  • The complainant must provide information that shows a prima facia case of discrimination.
  • The respondent can provide non-discriminatory reasons for what happened.
  • The burden then shifts to the complainant to provide additional information to connect the harm to the protected class.
  • For a reasonable cause finding, a preponderance of evidence must show that discrimination occured [sic].
WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21) (hyperlink added).

(7) INVESTIGATION

According to the WSHRC:

The WSHRC is a neutral fact-finder – we do not take sides during an investigation. An investigator is assigned to gather evidence to determine if there is reasonable cause to believe that a violation of law has occurred. They may interview witnesses and review documents and records.

The WSHRC also uses and encourages alternate dispute resolution.

WSHRC Official Website, https://www.hum.wa.gov/employment (last visited 11/17/21).


CONCLUSION

The Washington State Human Rights Commission is a Washington State administrative agency that enforces the Washington Law Against Discrimination. Under certain circumstances, it might be an affordable and efficient way for victims of employment discrimination to seek recourse against their employers in lieu of a lawsuit.

LEARN MORE

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.

–gw

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