stating that federal law may be considered instructive with regard to our state discrimination laws
How later courts described this case
- stating that federal law may be considered instructive with regard to our state discrimination laws
- the employee must prove that she “had the qualification required 15 to fill vacant positions and that the employer failed to take affirmative measures to make known 16 such job opportunities to the employee and to determine whether the employee was in fact 17 qualified for those positions.”
- affirming jury instruction that included mental anguish as aspect of “actual damages” available under state anti-discrimination statute
- employer liable for failing to make alternative job opportunities known to disabled employee and for failing to assist employee in applying for such positions
Written by the judges who cited it.
The opinion
Brachtenbach, J.
(concurring) — I concur in the result solely upon the basis that Metro did not except to the instruction that accommodation of a handicapped worker is an undue hardship if it is unreasonable in view of the size of the employer's business.
WAC 162-22-080(3) provides:
The cost of accommodating an able handicapped worker will be considered to be an undue hardship on the conduct of the employer's business only if it is unreasonably high in view of the size of the employer's business
That standard may well be a valid and desirable criteria for determining the necessity of an employer's accommodation. However, it is not authorized by the statute, RCW 49.60.120(3) and .180(3).
The regulation is beyond the authority granted the Commission. Its authority, RCW 49.60.110, is to adopt regulations to carry out the provisions of RCW 49.60. Nowhere is there a hint that the size of the employer's business is a relevant factor in determining whether there has been discrimination against a handicapped person. Such a criterion should be set by the Legislature, not the Commission.
Utter and Andersen, JJ., concur with Brachtenbach, J.