Date of Adoption: June 25, 1999.

Purpose: To adopt improvements to current Human Rights Commission rules under Executive Order 97-02 relating to clarity, effectiveness, consistency with statutory intent and case law, need, and fairness.

Citation of Existing Rules Affected by this Order: Repealing WAC 162-16-020 through 162-16-170, 162-22-030, 162-22-040, 162-22-050, 162-22-060, 162-22-070, 162-16-080, 162-26-020, 162-26-030, 162-26-035, 162-26-050, 162-26-090, and 162-38-130; and amending WAC 162-22-010, 162-22-020, 162-22-090, 162-22-100, 162-26-010, 162-26-040, 162-26-060, 162-26-070, 162-26-080, 162-26-100, 162-26-110, 162-26-120, 162-26-140, 162-30-010, 162-30-020, 162-38-040, 162-38-100, and 162-38-110.

Statutory Authority for Adoption: RCW 49.60.120(3).

Adopted under notice filed as WSR 99-04-108 on February 3, 1999.

Changes Other than Editing from Proposed to Adopted Version: In WAC 162-16-240, restored phrase found in previous version of the rule (WAC 162-16-020).

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 17, Amended 17, Repealed 28.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 17, Amended 18, Repealed 28. Effective Date of Rule: Thirty-one days after filing.

July 12, 1999

Sue J. Jordan

Executive Director

OTS-2769.4

NEW SECTION
WAC 162-16-200
General purpose and definitions.

The law against discrimination protects persons from discrimination in employment (RCW 49.60.180, 49.60.190, and 49.60.200). Persons are also protected from discrimination as provided in RCW 49.60.172 (unfair practices with respect to HIV infection), RCW 49.60.174 (actual or perceived HIV infection), and RCW 49.60.210 (unfair to discriminate against person opposing unfair practice).

(1) The commission's first objective in writing the rules in this chapter and in making future decisions on questions not addressed in this chapter is to eliminate and prevent discrimination. This is the overall purpose of the law against discrimination.

(2) Other objectives in writing these rules are:

(a) To be consistent with interpretations of federal antidiscrimination law and the antidiscrimination laws of other states, where these are comparable to Washington law, and where the commission does not find that a different rule would better serve the state of Washington.

(b) To avoid the uncritical adoption of definitions from areas of law other than antidiscrimination law. It is appropriate to define employment differently in different areas of the law to carry out the separate purpose of each area of law.

(c) To give effect to the purposes of the exemption of employers of less than eight from public enforcement of the law against discrimination, as identified in RCW 49.60.040.

(d) The public and commission staff need standards that are certain and that are easy to understand and apply. Therefore we must sometimes simply draw a line, although reasonable persons could differ as to where the line should be drawn.

(3) The state law against discrimination covers employers with eight or more employees. Persons should also educate themselves on relevant local or federal antidiscrimination laws.

(4) Definition:

In this chapter, the following words are used in the meaning given, unless the context clearly indicates another meaning.

"Protected status" is short for the phrase, "age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person," and means the full phrase (see RCW 49.60.180).

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(1) When requested to do so, the commission's staff will advise persons on how to meet particular employment needs consistently with the law against discrimination.

(2) Persons may petition the commission for an executive director's opinion determining whether protected status would be a bona fide occupational qualification in particular circumstances, unless the commission or another public agency with comparable jurisdiction has directed or authorized the action. (Please see WAC 162-04-070 on executive director's opinions and WAC 162-16-240 on bona fide occupational qualification.)

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(1) Purpose and scope. RCW 49.60.040 defines "employer" for purposes of the law against discrimination in part as "any person. . . who employs eight or more persons." This section establishes standards for determining who is counted as employed when deciding whether a person is an employer. The standards in this section do not define who is entitled to the protection of the law against discrimination.

(2) Time of calculation. A person will be considered to have employed eight if the person either:

(a) Had an employment relationship with eight or more persons for any part of the day on which the unfair practice is alleged to have occurred, or did occur; or

(b) Had an employment relationship with an average of eight or more persons over a representative period of time including the time when the unfair practice is alleged to have occurred.

An employment relationship is most readily demonstrated by a person's appearance on the employer's payroll. The representative period of time for (b) of this subsection will ordinarily be the twenty weeks prior to and including the date on which the unfair practice is alleged to have occurred. However, where this period will not accurately reflect the overall employment level, as in a seasonal industry, we will use the month during which the unfair practice is alleged to have occurred plus the preceding eleven months.

(3) Part-time employees. A person working part time will be counted the same as a person working full-time. Persons subject to call to work (such as volunteer fire fighters) will be considered to be employed at all times when they are subject to call.

(4) Area of calculation. A person who employs eight or more persons is an "employer" for purposes of the law against discrimination even though less than eight of the employees are located in the state of Washington.

(5) Multiple places of employment. The count will include all persons employed by the same legal entity, whether or not the persons work in the same place of business or line of business.

(6) Connected corporations. Corporations and other artificial persons that are in common ownership or are in a parent-subsidiary relationship will be treated as separate employers unless the entities are managed in common in the area of employment policy and personnel management. In determining whether there is management in common we will consider whether the same individual or individuals do the managing, whether employees are transferred from one entity to another, whether hiring is done centrally for all corporations, and similar evidence of common or separate management.

(7) Persons on layoff. Persons on layoff will not be counted.

(8) Persons on leave. Persons on paid leave will be counted. Persons on unpaid leave will not be counted.

(9) Employee or independent contractor. Independent contractors will not be counted. In determining whether a person is employed or is an independent contractor for the jurisdictional count we will use the same standards that we use for the purpose of determining whether a person comes within the protection of the law against discrimination. These standards are set out in WAC 162-16-230.

(10) Pay. Anyone who is paid for work and who otherwise meets the standards in this section will be counted. This includes paid interns and work study program participants. Pay includes compensation for work by the hour, by commission, by piecework, or by any other measure. For the treatment of unpaid persons, see subsection (11) of this section.

(11) Unpaid persons. An unpaid person will be counted if he or she is generally treated in the manner that employers treat employees. That is, if management selects the person (particularly if selected in competition with other persons), assigns work hours, disciplines the unpaid person like an employee, or provides employment benefits such as industrial insurance, then the person will be counted as an employee. The typical volunteer fire fighter would be counted. A person who comes into the food bank when he or she pleases, is put to work if there is anything to do, who leaves when he or she pleases, who has no expectation of paid employment, and who receives no employment benefits, would not be counted.

(12) Family members. Because of the definition of "employee" in RCW 49.60.040, we will not count "any individual employed by his or her parents, spouse, or child." Other family members will be counted.

(13) Domestic help. Because of the definition of "employee" in RCW 49.60.040, we will not count a person in the domestic service of the employing person.

(14) Directors. Directors of corporations, and similar officers of other private or public artificial legal entities, will not be counted simply because they serve in that capacity.

(15) Officers. Officers of corporations, and officers of other private or public artificial legal entities, will be counted unless:

(a) They receive no pay from the corporation or other entity; and

(b) They do not participate in the management of the corporation or other entity beyond participation in formal meetings of the officers.

(16) Partners. Partners will not be counted as employed by the partnership or by each other.

(17) Members of a professional service corporation. All persons who render professional services for a professional service corporation will be counted as employees of the corporation.

(18) Temporary employee placement services. Persons placed with an on-site employer by a temporary employee placement service:

(a) Will be counted as employees of the temporary placement service; and

(b) Will also be counted as employees of the on-site employer if the on-site employer generally treated them in the manner that employers treat employees (please see the factors listed in WAC 162-16-230).

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(1) Purpose of section. RCW 49.60.180 defines unfair practices in employment. A person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to the protection of RCW 49.60.180. This section outlines the standards that we will use to determine whether a person is an employee as distinguished from an independent contractor for the purpose of entitlement to the protection of RCW 49.60.180.

(2) Rights of independent contractor. While an independent contractor does not have the protection of RCW 49.60.180, the contractor is protected by RCW 49.60.030(1). The general civil right defined in RCW 49.60.030(1) is enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the Washington state human rights commission.

(3) General approach. We will consider all the relevant facts, particularly those bearing on the following factors. No one factor is determinative, but the most important is the extent to which the purchaser of work controls the manner and means of performance of the work.

(a) Control of work. An employment relationship probably exists where the purchaser of work has the right to control and direct the work of the worker, not only as to the result to be achieved, but also as to the details by which the result is achieved.

(b) Tools and place of work. Does the purchaser of the work or the worker furnish the equipment used and the place of work? Generally, the purchaser of work furnishes tools and equipment for employees while independent contractors furnish their own. Some employees furnish some of their own tools, however.

(c) Skill level involved. The skill required in the particular occupation. Skilled workers are typically less closely supervised than unskilled workers, but they are employees if indicia of employment other than close supervision are present.

(d) Type of work involved. The kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision. Some persons, such as lawyers or doctors, may be employees even though they are not closely supervised. The test for such specialists is not whether the lawyer or doctor is closely supervised, but whether he or she is treated the way that employed lawyers or doctors are commonly treated. Lawyers and doctors are typically independent contractors, however, with respect to their clients or patients.

(e) Duration of work. The length of time during which the person has worked or the length of time that the job will last. Independent contractors typically are hired for a job of relatively short duration, but there are instances of independent contracts for an indefinite period - for example, contracts for janitorial service.

(f) Method of payment. The method of payment, whether by time or by the job. Independent contractors are usually paid by the job but are sometimes paid by time. Employees are usually paid by time but are sometimes paid by the job.

(g) Ending the work relationship. Whether the work relationship is terminable by one party or both parties, with or without notice and explanation. An employee is usually free to quit and is usually subject to discharge or layoff without breach of the employment contract. An independent contractor usually has more fixed obligations.

(h) Leave. Whether annual leave is afforded. Leave with pay is almost exclusively accorded to employees.

(i) Integration of the work in the purchaser's operations. Whether the work is an integral part of the business of the purchaser of it. Usually, employees rather than independent contractors do the regular work of a business.

(j) Accrual of benefits. Whether the worker accumulates retirement benefits. Retirement benefits are almost exclusively accorded to employees.

(k) Taxation. Whether with respect to the worker the purchaser of work pays taxes levied on employers, such as the social security tax, unemployment compensation tax, and worker's compensation tax, or withholds federal income tax. The tax laws do not have the same purposes as the law against discrimination, so employee status for tax purposes is helpful but not controlling.

(l) Salary or income. Whether the worker treats income from the work as salary or as business income. See subsection (3)(k) of this section.

(m) Employer records. Whether with respect to the worker the purchaser of work keeps and transmits records and reports required of employers, such as those required under the worker's compensation act. Worker's compensation coverage, like tax coverage, is helpful but not conclusive.

(n) The intention of the parties. The fact that a contract says that the worker is an independent contractor will be considered in this respect, but it is not conclusive for the purpose of coverage of RCW 49.60.180.

(4) Burden of persuasion. The party asserting that the complainant is an independent contractor has the burden of proving that status.

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Under the law against discrimination, there is an exception to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of protected status; that is if a bona fide occupational qualification (BFOQ) applies. The commission believes that the BFOQ exception should be applied narrowly to jobs for which a particular quality of protected status will be essential to or will contribute to the accomplishment of the purposes of the job. The following examples illustrate how the commission applies BFOQs:

(1) Where it is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress) or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter) the commission will consider protected status to be a BFOQ.

(2) A 911 emergency response service needs operators who are bilingual in English and Spanish. The job qualification should be spoken language competency, not national origin.

(3) An employer refuses to consider a person with a disability for a receptionist position on the basis that the person's disability "would make customers and other coworkers uncomfortable." This is not a valid BFOQ.

(4) A person with a disability applies for promotion to a position at a different site within the firm. The firm does not promote the person because doing so would compel the firm to install an assistive device on equipment at that site to enable the person to properly perform the job. This is not a valid BFOQ.

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(1) General rule. 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:

(a) Refusing to hire a single or divorced applicant because of a presumption that "married persons are more stable."

(b) Refusing to promote a married employee because of a presumption that he or she "will be less willing to work late and travel."

(2) Exceptions to the rule. There are narrow exceptions to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of marital status:

(a) If a bona fide occupational qualification applies (please see WAC 162-16-240).

(b) If an employer is enforcing a documented conflict of interest policy limiting employment opportunities on the basis of marital status:

(i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;

(ii) Where one spouse would be responsible for auditing the work of the other;

(iii) 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

(iv) 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.

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(1) Unfair practice. The law against discrimination (RCW 49.60.180, 49.60.190 and 49.60.200) makes it an unfair practice for employers, labor unions, employment agencies, or other persons to discriminate on the basis of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240). The law against discrimination (RCW 49.60.220) also makes it an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice.

The commission provides the following charts as guidance in avoiding discriminatory language in advertising and recruiting. These are suggested terms only. The commission invites persons who want further assistance to contact commission staff.

(2) Discriminatory language. It is an unfair practice to use any word, term, phrase, or expression that tends to influence, persuade or dissuade, encourage or discourage, attract or repel, any person or persons because of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240).

DISCRIMINATORY TERMS IN ADVERTISEMENTS:	SUGGESTED SUBSTITUTES:
Man, woman, girl, boy, lady, etc.	Person, applicant, hiree, one, trainee, or a sex-neutral job title
Cute, handsome, pretty, clean-cut, attractive	Neat, well-groomed, personable, professional appearance
Married, single	No substitutes
Recent graduate, college student (implies preference for youth)	Degree required, Internship
Mother, housewife	Part-time, short hours
Young	Entry level, beginner, trainee
Christian, Jewish, etc.	No substitutes
Interracial, segregated, Black, White, colored, Oriental, Asian, Mexican, minority.	Person, applicant, etc.
	Other nondiscriminatory terms: Reliable, responsible, efficient, minimum wages, long hours, overtime, able to travel, willing to relocate.

(3) Job titles. It is an unfair practice to use a discriminatory job title in any help wanted advertisement, job description, job announcement, or any other notice, statement, or publication, unless the employer has shown that a bona fide occupational qualification applies (please see WAC 162-16-240).

The term "discriminatory job title" includes but is not limited to any job title that contains a gender noun or suffix, such as waitress, foreman, salesman, maid, or counter girl. If the use of a gender neutral job title is not practicable, two alternatives are permissible:

(a) The sex specific job title may be used with its counterpart title (e.g., waiter/waitress);

(b) The sex specific title may be used if accompanied by the designation "man or woman," "male or female," or "M-F" (e.g., foreman, man or woman; tailor, male or female; lineman, M-F).

DISCRIMINATORY JOB TITLES:	SUGGESTED SUBSTITUTES:
Barmaid	Server, Cocktail Server
Busboy, tray girl	Busser, Cafeteria Worker
Cleaning woman, cleaning lady	Cleaning Assistant
Draftsman	Drafter, AutoCAD Specialist
Fireman	Fire Fighter
Fisherman	Fisher
Foreman	Supervisor
Handyman	Miscellaneous Repairer
Journeyman	Journey Level
Leadman	Crew, Shift, or Team Leader
Longshoreman	Longshore Worker
Maid	Domestic Helper, Housekeeper
Maintenance man	Maintenance Worker
Policeman	Police Officer
Repairman	Repairer, Technician
Salesman, saleslady, salesgirl	Salesperson, Sales Clerk, Sales Representative
Stewardess, Steward	Flight Attendant, Cabin Attendant

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(1) It is an unfair practice for any employment agency to:

(a) Handwrite, print, or circulate any interoffice or interagency communication, job order, advertisement, brochure, or notice which expresses overtly or subtly, directly or indirectly a preference, specification or limitation on the basis of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240).

(b) Maintain, formally or informally, agency division titles that are not clearly neutral in terms of sex.

(2) It is not an unfair practice for an employment agency to assist an employer in recruiting applicants based on protected status when:

(a) The employer has a documented affirmative action plan; and

(b) The employer's affirmative action plan is authorized or required by a governmental agency or court of competent authority and jurisdiction.

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(1) It is an unfair practice for a newspaper or other advertising medium to publish or circulate within the state an employment advertisement under a column heading or designation which segregates or expresses a preference on the basis of protected status. An exception is if a bona fide occupational qualification applies (please see WAC 162-16-240).

(2) It is not an unfair practice for any newspaper or other advertising medium to print, publish, or circulate employment advertisements expressing the wording of the advertisement, or subtly, directly or indirectly a preference, specification or limitation on the basis of protected status, provided the newspaper or other advertising medium furnishes, on request of a duly authorized representative of the commission, the name and address of the person who submitted the advertisement for publication.

(3) The commission encourages advertising media that circulate employment advertisements to:

(a) Maintain lists of discriminatory job titles and terms and suggested substitutes, as compiled by the commission;

(b) Instruct their ad-takers to advise employers and employment agencies of these terms; and

(c) Have copies of this regulation available for distribution to advertisers on request.

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(1) Employers are encouraged to seek a broad pool of applicants through recruitment efforts. It is permissible to use advertisements that contain nonexclusionary recruitment phrases, such as:

(a) "Equal opportunity employer."

(b) "We encourage workforce diversity."

(2) IT IS NOT PERMISSIBLE, however, to express or exercise a hiring preference based on protected status, UNLESS:

(a) The employer has a court order to do so or an authorization from this commission or another governmental agency of competent authority and jurisdiction; or

(b) The employer can prove that the expression is justified by a bona fide occupational qualification (please see WAC 162-16-240). In the absence of proof, the advertisement will be considered evidence of an unfair practice under the law.

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     The following sections of the Washington Administrative Code are repealed:

WAC 162-16-020	Bona fide occupational qualification defined.
WAC 162-16-030	Advice of commission.
WAC 162-16-040	Identification in use.
WAC 162-16-050	Discrimination in employment because of arrests.
WAC 162-16-060	Discrimination in employment because of convictions.
WAC 162-16-070	Applicability of WAC 162-16-050 and 162-16-060 to nonminorities.
WAC 162-16-080	Purpose.
WAC 162-16-090	Job titles.
WAC 162-16-100	Discriminatory language.
WAC 162-16-110	Employment agencies.
WAC 162-16-120	Newspapers and other advertising media.
WAC 162-16-130	Bona fide occupational qualification.
WAC 162-16-140	Affirmative action.
WAC 162-16-150	Discrimination because of spouse.
WAC 162-16-160	"Employer"--Jurisdictional count of number of persons employed.
WAC 162-16-170	Employee distinguished from independent contractor.

OTS-2770.2

AMENDATORY SECTION(Amending WSR 98-08-035, filed 3/23/98, effective 4/23/98)

WAC 162-22-010
Scope of chapter.

This chapter interprets and implements the disability discrimination coverage of:

(1) RCW 48.60.174 (unfair practices based on actual or perceived HIV infection);

(2) RCW 49.60.180 (unfair practices of employers)((,));

(3) RCW 49.60.190 (unfair practices of labor unions)((, and));

(4) RCW 49.60.200 (unfair practices of employment agencies);

(5) RCW 49.60.210 (unfair to discriminate against persons opposing unfair practices); and

(6) RCW 49.60.220 (unfair to aid violation).

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-22-010, filed 3/23/98, effective 4/23/98; Order 23, § 162-22-010, filed 7/21/75.]

In this chapter the following words are used in the meaning given, unless the context clearly indicates another meaning:

(1) "Disability" is short for the statutory term "the presence of any sensory, mental, or physical disability," ((see WAC 162-04-010,)) except when it appears as part of the full term.

(2) "The presence of a sensory, mental, or physical disability" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(a) Is medically cognizable or diagnosable;

(b) Exists as a record or history;

(c) Is perceived to exist whether or not it exists in fact.

A condition is a "sensory, mental, or physical disability" if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.

(3) An "able worker with a disability" is a person whose disability does not prevent the proper performance, with or without reasonable accommodation, of the particular job in question.

(4) "'Dog guide' means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons."

(5) "'Service animal' means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability."

(6) "Health care professional" means a person whose license to practice includes diagnosis and assessment of the particular disability for which she or he issues a health care opinion.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-22-020, filed 3/23/98, effective 4/23/98; Order 23, § 162-22-020, filed 7/21/75.]

It is an unfair practice for any employer, employment agency, labor union, or other person to:

(1) Refuse to hire, discharge, bar from employment, or otherwise discriminate against an able worker with a disability or because of the use of a trained dog guide or service animal by an able worker with a disability; or

(2) Fail or refuse to make reasonable accommodation for an able worker with a disability or the use of a trained dog guide or service animal by an able worker with a disability, unless to do so would impose an undue hardship (please see WAC 162-22-065 and 162-22-075); or

(3) Refuse to hire or otherwise discriminate against an able worker with a disability because the employer would be subject to the requirements of this chapter if the person were hired, promoted, etc.

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The law protects against discrimination because of the presence of any disability or the use of a trained dog guide or service animal by a person with a disability. Discrimination in favor of a person because of the person's disability is not an unfair practice. This is different from the operation of the statutes in all other areas, except for age discrimination. For example, it is an unfair practice for an employer to discriminate either for or against persons of any race or either sex.

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Under the law against discrimination, there is one exception to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of protected status; that is if a bona fide occupational qualification (BFOQ) applies. For a complete discussion of BFOQs, please read WAC 162-16-240.

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(1) Reasonable accommodation means measures that:

(a) Enable equal opportunity in the application process;

(b) Enable the proper performance of the particular job held or desired;

(c) Enable the enjoyment of equal benefits, privileges, or terms and conditions of employment.

(2) Possible examples of reasonable accommodation may include, but are not limited to:

(a) Adjustments in job duties, work schedules, or scope of work;

(b) Changes in the job setting or conditions of work;

(c) Informing the employee of vacant positions and considering the employee for those positions for which the employee is qualified.

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An employer, employment agency, labor union, or other person must provide reasonable accommodation unless it can prove that the accommodation would impose an undue hardship. An accommodation will be considered an undue hardship if the cost or difficulty is unreasonable in view of:

(1) The size of and the resources available to the employer;

(2) Whether the cost can be included in planned remodeling or maintenance; and

(3) The requirements of other laws and contracts, and other appropriate considerations.

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(1) ((A physician's)) Employers may seek a health care professional's opinion on whether a person's disability ((prevents a person from properly performing)) affects the proper performance of a particular job. The employer may also seek a health care professional's opinion on possible effective accommodations that would enable the person with a disability to properly perform the job. The health care professional's opinion will be given due weight in view of all the circumstances, including the extent of the ((physician's)) health care professional's knowledge of the particular person and job, and the ((physician's)) health care professional's relationship to the parties.

(2) A ((physician's)) health care professional's conclusion will not be considered to be an opinion on whether the person can properly perform the particular job unless it:

(a) Is based on the individual capabilities of the particular person, and not on generalizations as to the capabilities of all persons with the same disability((, unless the disability is invariable in its disabling effect)); and

(b) Is based on knowledge of the actual sensory, mental, and physical qualifications needed for proper performance of the particular job.

(3) Employers ((who choose to rely on a physician's opinion in determining that a person cannot properly perform the particular job)) are advised to provide the ((physician)) health care professional with the necessary information about the particular job and to inform the ((physician)) health care professional of the need for an individualized opinion.

(4) Employee health care information shall be kept in a confidential manner, separate from the employee's regular personnel files. The employer may share health care information only on a need to know basis. Supervisors and/or safety personnel may be informed of employee needs only if necessary to make appropriate work assignments or develop appropriate emergency response plans.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-22-090, filed 3/23/98, effective 4/23/98; Order 23, § 162-22-090, filed 7/21/75.]

((Behavior or actions of a dog guide or service animal that constitutes an unreasonable risk to property or other persons can be grounds to request that a dog guide or service animal be removed, and shall not constitute an unfair practice.))

(1) General rule.  It is ((not)) an unfair practice ((under RCW 49.60.180)) for an employer, employment agency, labor union, or other person to request that a trained dog guide or service animal be removed from the workplace ((because the)), UNLESS that employer, employment agency, labor union, or other person 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.

(2) ((Individual judgment required.  To come within this exception, the removal of a dog guide or service animal must be based on knowledge of the present behavior or actions of the dog guide or service animal.  It is an unfair practice to exclude all of the particular dog guides or service animals unless the employer can show that all of the particular dog guides or service animals will present an unreasonable risk to persons or property.

(3) Likelihood of injury.)) Assessing risk of injury or harm.

(a) Risk to property or other persons must be immediate ((and likely)) or reasonably foreseeable under the circumstances, not remote or speculative. (((4) Degree of risk.)) Risk ((of injury)) to persons may be given more weight than risk ((of injury)) 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.

(((5) Annoyance to staff or other customers.)) (b) 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.

(((6) Least discriminatory solution required. It is an unfair practice to remove a dog guide or service animal from the entire workplace because the dog guide or service animal presents a risk of injury when in part of the workplace.)) (c) 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.

(3) Reasonable accommodation.  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.

(4) Liability. 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.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-22-100, filed 3/23/98, effective 4/23/98.]

     The following sections of the Washington Administrative Code are repealed:

WAC 162-22-030	Affirmative action and reporting.
WAC 162-22-040	General approach to enforcement.
WAC 162-22-050	Unfair practice.
WAC 162-22-060	Preference for disabled is not an unfair practice.
WAC 162-22-070	Bona fide occupational qualification.
WAC 162-22-080	Accommodation to employees with disabilities.

OTS-2771.2

AMENDATORY SECTION(Amending WSR 98-08-035, filed 3/23/98, effective 4/23/98)

WAC 162-26-010
Scope of chapter.

(((1) Confined to unfair practice.)) This chapter interprets and implements the disability discrimination coverage of RCW 49.60.215, unfair practices of places of public resort, accommodation, assemblage, and amusement.  This chapter does not define the scope of the civil right to be free from discrimination because of disability declared in RCW 49.60.030 or interpret other statutes.  ((This chapter applies to the unfair practices which the commission is empowered by RCW 49.60.120 to eliminate and prevent through the administrative process provided in RCW 49.60.230 through 49.60.270.

(2) Language interpreted. This chapter interprets and implements RCW 49.60.215, Unfair practices of places of public resort, accommodation, assemblage, and amusement, as amended by chapter 271, Laws of 1997.

(3) Related regulations. Regulations of the commission on disability discrimination in real estate transactions are in chapter 162-38 WAC.  Commission regulations governing disability discrimination in employment are in chapter 162-22 WAC and in other regulations governing employment.  General regulations of the commission governing schools are in chapter 162-28 WAC.))

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-010, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-010, filed 9/22/82.]

(1) Place of public accommodation. RCW 49.60.040 ((gives the following definition:

"'Any place of public resort, accommodation, assemblage, or amusement' includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps: Provided, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution;")) defines and lists examples of a place of public accommodation.

(2) General definitions((. General definitions applicable throughout the commission's regulations are set out in WAC 162-04-010.  These include the following:

"'Disability' is short for the term 'the presence of any sensory, mental, or physical disability' used in the law against discrimination, and means the full term."

(3) Definitions)) special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

"Accessible" means usable or understandable by a person with a disability, with reasonable effort and in reasonable safety.

(("Arranged service" means making the services or goods of a place of public accommodation available to a person with a disability at a place or in a way that is different from the place or way that the service is offered to the public in general in order to serve the person.  See WAC 162-26-090.)) "Disability" is short for the term "the presence of any sensory, mental, or physical disability" used in the law against discrimination, and means the full term.

"Dog guide" means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.

(("Fair service" means the service required by RCW 49.60.215 for disabled persons in places of public accommodation.  Depending on the circumstances, fair service may be in the form of (a) same service, (b) reasonable accommodation, or (c) arranged service.  These terms are defined in this chapter.  See also "service" and "fairly serve."

"Fairly serve" means to provide fair service.))

"Place of public accommodation" is short for "place of public resort, accommodation, assemblage, or amusement" and means the full term.

"Reasonable accommodation" means action, reasonably possible in the circumstances, to make the regular services of a place of public accommodation accessible to persons who otherwise could not use or fully enjoy the services because of the person's sensory, mental, or physical ((limitations)) disability.  See WAC 162-26-080.

"Same service" means service without regard to the existence of a disability.  See WAC 162-26-060.

"Service" means everything available to persons from a place of public accommodation.

"Service animal" means an animal that is trained for the purpose of assisting or accommodating a ((disabled)) person's sensory, mental, or physical disability.

"Structural" ((is defined in WAC 162-26-100(5).

"Unfair service" means service not in compliance with RCW 49.60.215.  See "fair service.")) means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations, or fittings. Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators. Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting or other floor covers.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-040, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-040, filed 9/22/82.]

(1) Same service preferred. The purposes of the law against discrimination are best achieved when disabled persons are treated the same as if they were not disabled.  The legislature expresses this policy in RCW 49.60.215 with the words "regardless of." Persons should, if possible, be treated without regard to their disability or use of a dog guide or service animal.  This is called "same service" in this chapter.

(2) Reasonable accommodation. ((In some circumstances, however, treating disabled persons the same as nondisabled persons ()) The law protects against discrimination because of the "presence" of a disability. It does not prohibit treating disabled persons more favorably than nondisabled persons in circumstances where same service(())) will defeat the purposes of the law against discrimination.

For example, this would be true if persons in wheelchairs and nondisabled persons are equally entitled to use the stairway to reach the second floor of a store.  In such circumstances, the operator of the place of public accommodation should ((if possible)) use the next best solution: Reasonable accommodation.

A reasonable accommodation would be to permit the shopper in the wheelchair to use an elevator to reach the second floor, even though the public in general is not permitted to use the elevator.  ((Reasonable accommodation is explained in WAC 162-26-080.

(3) Arranged service. Where same service will not carry out the purposes of the law and where no accommodation is reasonable, the operator of a place of public accommodation should use the third best solution: Arranged service.  In the example used in this section, arranged service would be having a store employee bring merchandise of the size and description requested by the wheelchair shopper from the second floor for examination by the customer on the first floor.  This would be appropriate if there were no elevator and no other safe and dignified way to transport the customer to the second floor.  Arranged service is explained in WAC 162-26-090.

(4))) If there is no elevator and no other safe and dignified way for the customer to reach the second floor, another reasonable accommodation would be to bring merchandise requested by the customer to the first floor. Reasonable accommodations may also include, but are not limited to, providing sign language interpreters and making printed materials available in alternate formats.

(3) Overall objective. ((In applying RCW 49.60.215, the commission seeks to assure that disabled persons will have the enjoyment of places of public accommodation to the greatest extent practical.  The legislature in RCW 49.60.040 has defined "full enjoyment of" with respect to the civil right set out in places of public accommodation in RCW 49.60.030 as follows:

"'Full enjoyment of' includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons . . . with any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person, to be treated as not welcome, accepted, desired, or solicited.")) People with disabilities must be afforded the full enjoyment of places of public accommodation to the greatest extent practical.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-060, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-060, filed 9/22/82.]

(((1) Rules.)) These rules apply except where exempted by RCW 49.60.215 for structural changes or behavior causing risk, or excepted by ruling of the commissioners under WAC 162-06-030((,)). It is an unfair practice under RCW 49.60.215 for any person in the operation of a place of public accommodation, because of disability or use of a trained dog guide or service animal:

(((a))) (1) To refuse to serve a person;

(((b))) (2) To charge for reasonably accommodating the special needs of a disabled person((, or for arranged service as defined in this chapter));

(((c))) (3) To require a disabled person accompanied by a trained dog guide or service animal in any of the places listed in RCW 70.84.010(3) to pay an extra charge for the trained dog guide or service animal;

(((d))) (4) To treat a disabled person as not welcome, accepted, desired, or solicited the same as a nondisabled person;

(((e))) (5) To segregate or restrict a person or deny a person the use of facilities or services in connection with the place of public accommodation where same service is possible without regard to the disability; or

(((f))) (6) To fail to reasonably accommodate the known physical, sensory, or mental limitations of a disabled person, when same service would prevent the person from fully enjoying the place of public accommodation, as provided in WAC 162-26-080((; or

(g) To fail to arrange service under the rules in WAC 162-26-090 when reasonable accommodation is not possible and same service treatment would prevent the disabled person from fully enjoying the place of public accommodation.

(2) Exceptions may be granted. The commission will grant exceptions to the rules of this chapter under the standards set out in WAC 162-06-030)).

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-070, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-070, filed 9/22/82.]

(1) Unfair practice to not accommodate. It is an unfair practice for a person in the operation of a place of public accommodation to fail or refuse to make reasonable accommodation to the known physical, sensory, or mental limitations of a person with a disability or to the use of a trained dog guide or service animal by a disabled person, when same service would prevent the person from fully enjoying the place of public accommodation.

(2) ((Defined. "Reasonable accommodation" is action, reasonably possible in the circumstances, to make the regular services of a place of public accommodation accessible to persons who otherwise could not use or fully enjoy the services because of the person's sensory, mental, or physical limitations.

(3))) Determining reasonableness. Whether a possible accommodation is reasonable or not depends on the cost of making the accommodation, the size of the place of public accommodation, the availability of staff to make the accommodation, the importance of the service to the person with a disability, and other factors bearing on reasonableness in the particular situation.

(((4))) (3) Carrying not favored. Carrying a mobility-impaired person is not required by law and is not an acceptable accommodation, except in rare circumstances.  Carrying should be done only when there is no other way for the mobility-impaired person to use the facility and when it is agreeable to the person with a disability.

(((5) Reference to employment standard. The concept of reasonable accommodation is also used in the employment context.  The commission will rely on its interpretations of WAC 162-22-080 and on Holland v. Boeing Co., 90 Wn.2d 384, 583 P.2d 621 (1978) for guidance in applying this section.)) (4) "Arranged service." The concept of "arranged service," as formerly defined in commission rules, is incorporated fully within the scope of reasonable accommodation.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-080, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  83-02-012 (Order 43), § 162-26-080, filed 12/23/82.]

(1) ((Statute. RCW 49.60.215 says that it

"shall not be construed to require structural changes, modifications, or additions to make any place accessible to a disabled person except as otherwise required by law. . . ."

(2))) Laws requiring accessibility. The commission enforces the law against discrimination, chapter 49.60 RCW, not other state or federal laws. The commission provides the following references as guidance to places of public accommodation. The principal laws requiring that places of public accommodation be made accessible ((are)) include, but are not limited to:

(a) The Washington state building code((, chapter 19.27 RCW, which includes the barrier free design standards adopted in chapter 51-10 WAC under authority of chapter 70.92 RCW.  The barrier free design standards apply with some exceptions to "buildings, structures, or portions thereof, . . . which are constructed, substantially remodeled, or substantially rehabilitated after October 1, 1976." WAC 51-10-003)).

(b) Chapter 219, Laws of 1971 ex. sess.((, in effect from August 9, 1971, through June 30, 1976.  This statute required that plans and specifications for the erection or remodeling of any public accommodation must provide for access by persons with physical disabilities, for toilet facilities designed for use by the persons with physical disabilities, and for additional facilities specified in a national standard.))

(c) Chapter 35, Laws of 1967((, in effect from June 8, 1967, through June 30, 1976.  This statute was substantially the same as the 1971 statute described in paragraph (b) of this subsection, but was limited in its coverage to public buildings)).

(d) RCW 35.68.075((, requiring curb ramps in sidewalks constructed or replaced after June 7, 1973)).

(e) United States law; ((particularly 45 CFR § 84.23 implementing section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), which requires that facilities constructed after April 28, 1977 with federal assistance be readily accessible to and usable by disabled persons.

(f))) including The Americans with Disabilities Act of 1990, codified at 42 U.S.C. 12101 et seq., the Rehabilitation Act of 1973, and the Federal Fair Housing Act.

(((3))) (2) Practices that are not unfair. It is not an unfair practice under RCW 49.60.215 to operate a place of public accommodation with structural barriers to accessibility of the person with a disability when the structural barriers:

(a) Were lawful when constructed; and

(b) Are presently lawful under the state building code and other law outside of the law against discrimination.

This exemption does not relieve the operator of a place of public accommodation of the duty to make reasonable accommodation to the needs of disabled persons as described in WAC 162-26-080((, or to provide arranged service as described in WAC 162-26-090)).

(((4))) (3) When required by law. It is an unfair practice under RCW 49.60.215:

(a) To deny service to any person because of a barrier to accessibility when accessibility is required by law;

(b) To build or remodel in a way that does not comply with requirements of law on accessibility;

(c) To operate a place of public accommodation that is out of compliance with a law requiring accessibility;

(d) To fail to maintain or fail to continue the accessibility of a place of public accommodation that was required by law to be accessible when it was built, remodeled, or rehabilitated.

(((5))) (4) Nonstructural changes.  ((After January 1, 1983,)) It is an unfair practice under RCW 49.60.215 for a person who is making nonstructural changes in a place of public accommodation to fail to eliminate barriers to same service when this can be done without substantially changing the scope or cost of the project or requiring structural changes that are not otherwise required by law.  Specifically, it is an unfair practice:

(a) When installing a nonstructural fixture or component, to choose and install one that is not accessible to the person with a disability or that makes the place of public accommodation less accessible to the person with a disability.

(b) When replacing a nonstructural fixture or component, to replace it with one that is not accessible to the ((handicapped)) person with a disability or one that makes the place of public accommodation less accessible to the person with a disability.

(c) When relocating a nonstructural fixture or component, to relocate it to a place that is not accessible to the person with a disability, unless no suitable place is accessible.

(d) When modifying a nonstructural fixture or component, to do so in a way that does not eliminate barriers to the person with a disability, when possible.

(((6) What is "structural." "Structural" for purposes of RCW 49.60.215 means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations, or fittings.  Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators.  Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting or other floor covers.))

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-100, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  83-02-012 (Order 43), § 162-26-100, filed 12/23/82.]

(1) Proviso interpreted. This section interprets the following proviso of RCW 49.60.215:

"Provided, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice."

(2) General rule. It is not an unfair practice under RCW 49.60.215 to deny a person service in a place of public accommodation because that person's behavior or actions constitute a risk to property or other persons.  ((It is not an unfair practice to request that a trained dog guide or service animal be removed because the behavior or actions of that dog guide or service animal constitute an unreasonable risk to property or other persons.))

(3) Individual judgment required. To come within this exception, the denial of service must be based on knowledge of the present behavior or actions of the individual who is not served.  It is an unfair practice to exclude all persons who have a disability or who have a particular disability unless the operator of the place of public accommodation can show that all persons with the disability will present a risk to persons or property.

((To come within this exception, the removal of a trained dog guide or service animal must be based on knowledge of the present behavior or actions of the dog guide or service animal.  It is an unfair practice to exclude all of the particular dog guides or service animals unless the place of public accommodation can show that all of the particular dog guides or service animals will present an unreasonable risk to property or other persons.))

(4) Likelihood of injury. Risk to property or other persons must be immediate and likely, not remote or speculative.

(5) Degree of risk. Risk of injury to persons may be given more weight than risk of injury to property.  Risk of severe injury may be given more weight than risk of slight injury.

(6) Risk to person with a disability ((or trained dog guide or service animal)). Risk to the person with a disability ((or trained dog guide or service animal)) is not a reason to deny service.  ((Liability for injury to customers with a disability is governed by law other than the law against discrimination.)) Law other than the law against discrimination governs liability for injury to customers with a disability.  The law against discrimination affects tort liability only insofar as it includes persons with a disability within the public for which public accommodations must be made safe.

(7) Annoyance to staff or other customers. Annoyance on the part of staff or customers of the place of public accommodation at the abnormal appearance or behavior of a person with a disability is not a "risk to property or other persons" justifying nonservice. ((Annoyance on the part of staff or customers of the place of public accommodation 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.))

(8) Least discriminatory solution required. It is an unfair practice to deny a person with a disability the enjoyment of an entire place of public accommodation because the person presents a risk of injury when using part of the place.  When risk justifies not serving a person with a disability in the same way or same place as other customers, the person should be served through reasonable accommodation (WAC 162-26-060, ((161-26-080 [162-26-080]) or arranged service (WAC 162-26-060, 162-260-090)) 162-26-080), if possible.  ((When risk justifies removal of a dog guide or service animal from the place of public accommodation, efforts must be made to reasonably accommodate the person with a disability.))

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-110, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-110, filed 9/22/82.]

(1) ((Unfair practice. It is an unfair practice under RCW 49.60.215 for the operator of a place of public accommodation to refuse or fail to comply with any specific requirement of law for the benefit of persons with disabilities applicable to the place of public accommodation.

(2) All sources of law covered. This section applies to all requirements imposed by or authorized by any law of the United States, the state of Washington, or any ordinance of a unit of local government within the state of Washington.

(3))) Guidance. Failure to meet requirements of related law protecting persons with disabilities in places of public accommodation may be evidence of an unfair practice under RCW 49.60.215. The commission may refer to standards established in related law for guidance in determining whether an unfair practice under RCW 49.60.215 has occurred.

(2) References to selected laws. ((Some of the laws to which this section applies are:)) Related law may include, but is not limited to:

(a) Chapter 28A.13 RCW (education for handicapped children);

(b) Sections 503 and 504 of the United States Rehabilitation Act of 1973, 29 U.S.C. §§ 793 and 794((, and all regulations of agencies of the United States government issued pursuant to them));

(c) Chapter 70.84 RCW, the "white cane law((.))";

(d) Chapter 2.42 RCW (Interpreters in legal proceedings);

(e) The Washington State Building Code;

(f) The Americans with Disabilities Act of 1990;

(g) The Individuals with Disabilities Education Act;

(h) The Air Carriers Access Act;

(i) The Federal Fair Housing Act.

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-120, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-26-120, filed 9/22/82.]

(1) General rule. It is an unfair practice for a place of public accommodation to ask that a trained dog guide or service animal be removed, unless that place of public accommodation can show that the presence, behavior or actions of that dog guide or service animal constitutes an unreasonable risk of injury or harm to property or other persons.

It is an unfair practice to remove a trained dog guide or service animal from the entire place of public accommodation because the dog guide or service animal presents a risk of injury or harm when in part of the place of public accommodation.

(2) Assessing risk of injury or harm.

(a) 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 barber excludes a patron's dog guide because; "It might bite somebody -- I don't allow any dogs in here." This is not "reasonably foreseeable risk" justifying removal of the dog guide.

(b) Annoyance on the part of staff or other customers of the place of public accommodation 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.

(c) Risk of injury or harm to the dog guide or service animal is not a reason for a place of public accommodation to exclude the animal. The decision whether to bring the animal into a place of public accommodation under such circumstances most properly rests with the person with a disability using the dog guide or service animal.

(3) Duty to reasonably accommodate. When risk justifies the removal of a dog guide or service animal from the place of public accommodation, efforts must be made to reasonably accommodate the person with the disability.

(4) Liability. 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.

[]

This section is intended to prohibit waivers on the basis of disability, but is not intended to preclude waivers required on a nondiscriminatory basis.

(1) It is an unfair practice for any person to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a disabled person.

(2) It is an unfair practice to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a disabled person using a dog guide or service animal. ((This section is intended to prohibit waivers on the basis of disability, but is not intended to preclude waivers required on a nondiscriminatory basis.))

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-26-140, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  83-02-012 (Order 43), § 162-26-140, filed 12/23/82.]

     The following sections of the Washington Administrative Code are repealed:

WAC 162-26-020	Purpose of chapter.
WAC 162-26-030	Related law.
WAC 162-26-035	Concurrent remedy in court.
WAC 162-26-050	Who is protected.
WAC 162-26-090	Arranged service.

OTS-2772.1

AMENDATORY SECTION(Amending Order 9, filed 9/23/71)

WAC 162-30-010
General ((approach)) purpose and scope.

((In the interest of consistency and to avoid confusion on the part of persons governed by both the state and federal sex discrimination laws, the commission will generally follow interpretations of the sex discrimination provisions of Title VII of the United States Civil Rights Act of 1964, 42 USC § 2000e and following, where the federal act is comparable to the state act.  See in particular part 1604 of the regulations of the United States Equal Employment Opportunity Commission, 42 [29] CFR Part 1604.  The commission will not follow federal precedents where it believes that a different interpretation will better carry out the purposes of the state act.)) The general purpose of the law against discrimination in employment because of sex is to equalize employment opportunity for men and women. This chapter interprets and implements the sex discrimination protection of RCW 49.60.180, and provides guidance regarding certain specific forms of sex discrimination.

[Order 9, § 162-30-010, filed 9/23/71.]

(1) ((Findings. Pregnancy is an expectable incident in the life of a woman.  Many women of childbearing age depend on their jobs for economic support.  Practices such as terminating pregnant women, refusing to grant leave or accrued sick pay for disabilities relating to pregnancy, or refusing to hire women for responsible jobs because they may become pregnant, impair the opportunity of women to obtain employment and to advance in employment on the same basis as men.  Such practices discriminate against women because of their sex.

(2))) Purposes. The overall purpose of the law against discrimination in employment because of sex (((chapter 49.60 RCW))) is to equalize employment opportunity for men and women.  This regulation explains how the law applies to employment practices ((which)) that disadvantage women because of pregnancy or childbirth.

(((3) Hiring pregnant women. It is an unfair practice for an employer to refuse to hire a qualified woman because of pregnancy unless doing so would be unreasonable in view of the necessities of the business.  The burden shall be on the employer to show that a decision not to hire a pregnant woman was based on adequate facts concerning her individual ability to perform the job or adequate facts concerning business necessity.)) (2) Findings and definitions. Pregnancy is an expectable incident in the life of a woman. Discrimination against women because of pregnancy or childbirth lessens the employment opportunities of women.

(a) "Pregnancy" includes, but is not limited to, pregnancy, the potential to become pregnant, and pregnancy related conditions.

(b) "Pregnancy related conditions" include, but are not limited to, related medical conditions, miscarriage, pregnancy termination, and the complications of pregnancy.

(3) Unfair Practices.

(a) It is an unfair practice for an employer, because of pregnancy or childbirth, to:

(i) Refuse to hire or promote, terminate, or demote, a woman;

(ii) Impose different terms and conditions of employment on a woman.

(b) The sole exception to (a) of this subsection is if an employer can demonstrate business necessity for the employment action.  For example, an employer hiring workers into a training program that cannot accommodate absences for the first two months might be justified in refusing to hire a pregnant woman whose delivery date would occur during those first two months.  ((On the other hand, negative assumptions about pregnant women in employment must not influence the hiring decision.  Such assumptions include but are not limited to:

(a) That)) (c) It is an unfair practice to base employment decisions or actions on negative assumptions about pregnant women, such as:

(i) Pregnant women do not return to the job after childbirth;

(((b) That)) (ii) The time away from work required for childbearing will increase the employer's costs;

(((c) That)) (iii) The disability period for childbirth will be unreasonably long;

(((d) That)) (iv) Pregnant women are frequently absent from work due to illness;

(((e) That)) (v) Clients, co-workers, or customers object to pregnant women on the job;

(vi) The terms or conditions of the job may expose an unborn fetus to risk of harm.

(4) ((Treatment of employed women. It is an unfair practice for an employer to discharge a woman, penalize her in terms or conditions of employment, or in any way limit the job opportunities of a woman because she is pregnant or may require time away from work for childbearing.

(5))) Leave ((for temporary disability)) policies.

(a) An employer shall provide a woman a leave of absence for the period of time that she is sick or temporarily disabled because of pregnancy or childbirth.  ((A leave in excess of the actual period of sickness or disability is not required by the law or this regulation.  The terms and conditions of the leave shall be determined by the employer's policy on temporary disability, unless the policy conflicts with this regulation.)) Employers must treat a woman on pregnancy related leave the same as other employees on leave for sickness or other temporary disabilities.  For example:

(i) If ((advance notice is required for a)) an employer provides paid leave for ((planned surgeries)) sickness, or other ((anticipated)) temporary disabilities, ((it may be required also for a leave for childbirth)) the employer should provide paid leave for pregnancy related sickness or disabilities;

(ii) If the uniform policy requires a physician's statement to verify the leave period ((for other disabilities)), a physician's statement may be required to verify the leave period ((for disabilities)) relating to pregnancy or childbirth.

(iii) If the uniform policy permits the retention and accrual of benefits, such as seniority, retirement, and pension rights, during the leave period for other temporary disabilities, the policy must also permit it during leave for pregnancy related temporary disabilities.

(iv) If the employer permits extensions of leave time (e.g., use of vacation or leave without pay) for sickness or other temporary disabilities, the employer should permit such extensions for pregnancy related sickness or disabilities.

(b) ((While)) There may be circumstances when the application of the employer's general leave policy to ((disability because of)) pregnancy or childbirth will ((ordinarily)) not afford equal opportunity for women and men((, there may be circumstances when this is not so)).  One circumstance would be where the employer allows no leave for any sickness or other disability by any employee, or so little leave time that a pregnant woman must terminate employment.  Because such a leave policy has a disparate impact on women, it is an unfair practice, unless the policy is justified by business necessity.

(c) An employer shall allow a woman to return to the same job, or a similar job of at least the same pay, if she has taken a leave of absence only for the actual period of disability relating to pregnancy or childbirth.  Refusal to do so must be justified by adequate facts concerning business necessity.

(((6) Disability)) (d) Employers may be required to provide family medical leave, in addition to leave under this chapter. Please see appropriate federal and state family and medical leave laws and regulations.

(5) Employee benefits. ((Illness or disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are temporary disabilities and must be treated as such under any sick leave plan or temporary disability benefit plan provided in whole or in part by the employer.  All written and unwritten policies and practices concerning disabilities must be applied to disabilities resulting from pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.  For example, if the following benefits or privileges are available for other temporary disabilities, then they must be available also for disabilities resulting from pregnancy or childbirth:

(a) Payment in lieu of wages under a sick leave plan or temporary disability benefit plan.  (If no leave pay is granted for other temporary disabilities, then it need not be granted for disabilities relating to pregnancy or childbirth.)

(b) Extensions of leave time (e.g., use of vacation or leave without pay);

(c) Retention and accrual of benefits, such as seniority, retirement, and pension rights, during the leave period.

(7) Insurance benefits. Insurance)) Employee benefits provided in part or in whole by the employer must be equal for male and female employees.  For example, it is an unfair practice to:

(a) ((If full health insurance coverage is provided for male employees, then full coverage, including maternity and abortion, must be provided for female employees;

(b) If maternity insurance is provided for the wives of male employees, then the same coverage must be provided for the female employees.

Subsection 7 applies only if the employer pays the premium in whole or in part or has participated in negotiating the terms of the insurance policy.

(8))) Provide full health insurance coverage to male employees but fail to provide full health insurance coverage, including pregnancy and childbirth, to female employees.

(b) Provide maternity insurance to the wives of male employees but fail to provide the same coverage to female employees.

(6) Marital status immaterial. ((Discrimination because of marital status is an unfair practice.  An employer's leave policies and benefits, including health insurance, must apply equally to married and unmarried employees.

(9))) The provisions of this chapter apply irrespective of marital status.

(7) Labor unions and employment agencies. ((It is an unfair practice for a labor union or employment agency to conduct its own affairs so as to deny anyone his or her rights under the law and this regulation.

(10) Commission rulings. Any person in doubt as to the application of this regulation to a particular set of facts may request an opinion letter from the executive secretary of the Washington state human rights commission or a declaratory ruling of the commission under WAC 162-08-620.

(11) Construction with federal law. This regulation is intended to be consistent with Title VII of the United States Civil Rights Act of 1964 and the United States Equal Employment Opportunity Commission Employment Policies Relating to Pregnancy and Childbirth, 29 CFR § 1604.10, and shall be construed accordingly.)) The provisions of this chapter apply equally to employers, labor unions, and employment agencies.

[Order 15, § 162-30-020, filed 9/28/73; Order 11, § 162-30-020, filed 6/26/72.]

OTS-2773.1

AMENDATORY SECTION(Amending WSR 98-08-035, filed 3/23/98, effective 4/23/98)

WAC 162-38-040
Definitions.

The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

"Accessible" means usable or understandable by a person who is disabled, with reasonable effort and in reasonable safety.

"Standards for barrier-free facilities" means standards for making building and facilities accessible to physically disabled persons, pursuant to chapter 51-30 WAC and chapter 70.92 RCW.  See WAC 162-38-030(2), 162-38-070.

"Disability" is short for "the presence of a sensory, mental or physical disability."

"Landlord" means anyone other than the occupant of real property who attempts to control use of the property under claim of right arising out of an ownership interest in real property by that person or another person for whom that person acts.  The term includes owners of rental property, trustees, receivers, persons controlling the common areas used in connection with condominiums, and agents or others acting in the interest of any such persons.

"Rental property" includes real property that is rented or leased, offered for rental or lease, or built or maintained for rental or lease.

"Structural" means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations or fittings.  Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators.  Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting and other floor covers.

"Tenant" is a person who rents or seeks to rent real property.

"(('))Dog guide(('))" means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.(("))

"(('))Service animal(('))" means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability.(("))

[Statutory Authority: RCW 49.60.120(3) and 1997 c 271.  98-08-035, § 162-38-040, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3) and 49.60.240.  96-13-045, § 162-38-040, filed 6/13/96, effective 7/14/96.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-38-040, filed 9/22/82.]

(1) Are protected.  RCW 49.60.222 protects persons with disabilities from discrimination because of their use of a trained dog guide or service animal the same as it protects them from discrimination directly because of disability.

(2) General rule.  The same rules that apply to the treatment of persons because of disability under RCW 49.60.222 and this chapter apply to the treatment of persons with disabilities because they use a trained dog guide or service animal.

(3) Landlord's duty.  It is an unfair practice for a landlord to refuse to rent to a person with a disability because the person uses a trained dog guide or service animal.  A landlord's no-pet policy cannot be applied to the dog guide or service animal of a person with a disability.

(4) Cleaning or damage deposits not unfair.  It is not an unfair practice for a landlord to enforce on a tenant with a disability using a dog guide or service animal its standard cleaning or damage deposit ((for dogs or other animals.  It is not an unfair practice for a landlord who otherwise doesn't allow dogs or other animals in the rented property to require a reasonable cleaning or damage deposit for the dog or other animal when renting to a person with a disability using a trained dog guide or service animal)) if the same cleaning or damage deposit is enforced equally on all tenants.

(5) Pet deposits unfair. It is an unfair practice for a landlord to enforce on a tenant with a disability using a dog guide or service animal a pet deposit in addition to any standard cleaning or damage deposit.

[Statutory Authority: RCW 49.60.120(3), 1997 c 271.  98-08-035, § 162-38-100, filed 3/23/98, effective 4/23/98.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-38-100, filed 9/22/82.]

(1) General rule. It is an unfair practice to request that a trained dog guide or service animal be removed, unless the person can show:

(a) That the presence, behavior or actions of that dog guide or service animal constitutes an unreasonable risk of injury or harm to property or other persons; and

(b) A reasonable attempt to eliminate the behavior or actions of that dog guide or service animal that constitutes an unreasonable risk fails.

It is an unfair practice to remove a trained dog guide or service animal from the entire rental property because the animal presents a risk of injury or harm when in part of the rental property.

(2) Assessing risk of injury or harm.

(a) 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, an apartment manager excludes a tenant's dog guide because, "a pet dog bit one of the kids here a while back, so now I don't allow any dogs in the complex." This is not "reasonably foreseeable risk" justifying removal of the dog guide.

(b) Annoyance on the part of staff or other tenants of the rental property 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.

(c) Risk of injury or harm to the dog guide or service animal is not a reason to remove or exclude the animal. The decision whether to bring the animal into the rental property under such circumstances most properly rests with the person with a disability using the dog guide or service animal.

(3) Reasonable accommodation. When risk justifies the removal of a dog guide or service animal from a rental property, efforts must be made to reasonably accommodate the person with the disability.

(4) Liability. 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 actions or behavior of the animal.

[]

(((1))) Unfair practice.  It is an unfair practice under RCW 49.60.222 (1)(g) for a landlord to inquire into matters personal to a disabled applicant beyond what is necessary and appropriate to the landlord-tenant relationship.  For example, the landlord may inquire as to how many persons will occupy the unit, but ordinarily will have no other reason to know whether ((a disabled person is assisted by)) an aide assists a person with a disability, and when.

(((2) Reference to employment rules.  The commission's rules on pre-employment inquiries, chapter 162-12 WAC, implement a parallel statute and furnish analogies for the application of this portion of the real estate transactions law.))

[Statutory Authority: RCW 49.60.120(3) and 49.60.240.  96-13-045, § 162-38-110, filed 6/13/96, effective 7/14/96.  Statutory Authority: RCW 49.60.120(3).  82-19-086 (Order 41), § 162-38-110, filed 9/22/82.]

     The following section of the Washington Administrative Code is repealed:

WAC 162-38-130

Behavior causing risk.

© Washington State Code Reviser's Office