Fahn v. Cowlitz County

Dolliver, J.

(dissenting) — The majority has taken a relatively simple and straightforward case and by its opinion has needlessly complicated the law. What were the facts before the trial court? Plaintiff Fahn, who took the examination for deputy sheriff, was removed from the eligibility list because he was under 5 feet 9 inches in height, while plaintiff Parkhill was not allowed to take the examination because he was under 5 feet 9 inches. In his deposition, the undersheriff of Cowlitz County stated there currently are three deputies who are under 5 feet 9 inches and that in no case is height an impediment to their ability to do the work. The undersheriff was not well acquainted with the work of Parkhill but stated that apart from the bar of the height requirement he would like to have Fahn as a deputy.

Only two questions need to be answered: (1) Are plaintiffs in a class protected by RCW 49.60.180?, and (2) If they are members of a protected class, is the requirement they be at least 5 feet 9 inches a bona fide occupational qualification? A subsidiary question is the validity of the regulation. WAC 162-12-140(3) (g).

I

The majority contends at page 382-83:

Since [the regulation of the State Human Rights Commission] prevents preemployment inquiries based on height and weight in virtually all situations, the regulation in effect establishes a new protected class composed of all persons who would be disadvantaged by a height or weight requirement. In our view, however, the designation of any additional categories of protected persons is clearly a legislative function.

There are two answers to this assertion, the first of which has been provided by the majority opinion.

*386 1. In note 5, the majority states, "We note parenthetically that whatever burdens are imposed, employers face a difficult task in persuading courts that height standards constitute a business necessity." But if white, male, non-ethnic persons under 5 feet 9 inches, because of their sex, color and national origin cannot make a claim of "disparate treatment" (see majority opinion at pages 378-79), and if the "disparate impact" cases require a showing that "the practice in question selects applicants in a way that significantly discriminates against a protected class" (see majority opinion at pages 379-80), then the majority is simply stating in the text of its opinion that height is not a protected classification and in note 5 apparently assumes that it is. If height is a protected classification, plaintiffs should prevail and the case need go no further. If not, then it would be a cruel charade for the parties to heed the call of the majority and to take the case forward. While plaintiffs would have standing to attack the alleged discrimination and assert the interests of a protected class (see Waters v. Heublein, Inc., 547 F.2d 466 (9th Cir. 1976)), this will not convert plaintiffs into a member of a protected class. As is demonstrated below, I believe the view of the majority in note 5 is correct.

2. In Chicago, Milwaukee, St. P., & Pac. R.R. v. State Human Rights Comm'n, 87 Wn.2d 802, 805 , 557 P.2d 307 (1976), we said:

A person with a handicap does not enjoy, in some manner, the full and normal use of his sensory, mental, or physical faculties. A "handicap" is: ". . .a disadvantage that makes achievement unusually difficult; esp: a physical disability that limits the capacity to work."

Thus, while a person who has a "physical handicap" would be in a protected class, taken alone Milwaukee would seem to bar mere height as being a protected classification.

In interpreting the law against discrimination, RCW 49.60, we have said:

Reading this chapter as a whole, it is apparent that the legislature intended to give to the commission broad *387 powers to investigate and formulate policies with respect to practices which involve discrimination based upon those attributes, conditions, and situations which it had found to constitute an unfair basis for such discrimination.

Washington Water Power Co. v. State Human Rights Comm'n, 91 Wn.2d 62, 67-68 , 586 P.2d 1149 (1978).

The Court of Appeals in Barnes v. Washington Natural Gas Co., 22 Wn. App. 576, 583 , 591 P.2d 461 (1979), added, I believe correctly, a further dimension to the issue of defining "handicap". It said:

Public policy, expressed by the Act to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.

While shortness of stature is not, on its face, a physical handicap and thus shorter persons who do not qualify by either "disparate impact" or "disparate treatment" are not per se in a protected class, if the height of an employee or an applicant for employment is perceived by the employer to be a physical handicap, then, by action of the employer, the plaintiffs are in a protected class. If height in the view of the employer becomes "a disadvantage that makes achievement unusually difficult" and "a physical disability that limits the capacity to work" (Milwaukee, at 805)— clearly the position of the defendants here — then height is a protected classification and the questioning of prospective employees as to their height can be made only if it is based on a bona fide occupational qualification. RCW 49.60.180.

The legislature has declared the law against discrimination should be construed liberally so as to prevent and eliminate discrimination in employment. RCW 49.60.010-.030. Defendant is unquestionably discriminating against plaintiffs solely because of their height. Under the facts of this case, plaintiffs are members of a class which should receive the protection of the statute.

*388 II

Once it has been determined plaintiffs are members of a protected class, the only remaining question is whether defendant, who is discriminating against plaintiffs, is doing so on a bona fide occupational qualification.

The majority contends the language of WAC 162-12-140(3)(g) is too stringent in that "it provides in fact no realistic opportunity to demonstrate how the requirement [of height] is related to the job" and that "the regulation [WAC 162-12-140(3) (g)] has the effect of preventing an employer under circumstances similar to those in the present case from ever being permitted to present evidence of job relatedness". This is simply not so. The problem of defendant is not that it is barred from demonstrating the validity of the height requirement; rather it is that the sheriff already has three deputies under 5 feet 9 inches and thus cannot submit evidence that the height of 5 feet 9 inches is job related.

The majority further asserts "common sense tells us that at least one person [under 5 feet 9 inches] of unusual physical capabilities could be found somewhere and shown capable of performing the job". But if this is so, and somewhere this superperson is lurking, it simply proves the point: height is not a bona fide occupational qualification. If an employer wants to prevent persons from being hired because they fail to meet a single physical standard, it must show that such a standard is crucial to the job; it is a bona fide occupational qualification; and no one who suffers from the disability could perform the job. This should not be too difficult if the claimed disability is real. Even if credence is given to the superperson argument of defendant, one's credulity is strained to believe not just one but three such individuals showed up in Cowlitz County and were hired as deputy sheriffs.

If the sheriff's department hired deputies only 5 feet 9 inches or over, defendant could easily present its case for job relatedness. For example, in this case, the defendant summarized affidavits from law enforcement officers which *389 it claims "indicated [their] . . . concern for safe and effective law enforcement and demonstrated the need for a height requirement". This argument, which sounds fine on paper, tends to turn to ashes upon the disclosure it is not accepted even by the agency which promotes it. It escapes me how the Cowlitz County sheriff can claim the height of 5 feet 9 inches for its deputies is a bona fide occupational qualification when it admits three of its deputies are under 5 feet 9 inches and are satisfactory employees whose failure to stand 5 feet 9 inches is no impediment to the performance of their duties.

Finally, and I believe conclusively, even though WAC 162-12-140(3) (g) is stringent, it is entirely consistent with the statute. The statute in question (RCW 49.60.180(4)) reads in full:

It is an unfair practice for any employer:

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: Provided, Nothing contained herein shall prohibit advertising in a foreign language.

(Italics mine.) By the terms of the statute, an employer cannot make any inquiry as to a physical handicap (height) unless the handicap, and the handicap alone, is shown to be a bona fide occupational qualification. The statute is no less stringent than WAC 162-12-140(3)(g).

As I read the majority, although it appears to be saying that if plaintiffs start over again they will prevail, it apparently feels there must be a reversal because of its analysis of this case and the applicable law. This is unnecessary. The plaintiffs are covered by the statute; the regulation is *390 valid; there is no need for a new trial. I would affirm the trial court.

Rosellini and Wright, JJ., and Ryan, J. Pro Tem., concur with Dolliver, J.