“discriminatory motivation can be readily inferred when solely subjective employment evaluations result in the exclusion of a protected class”
How later courts described this case
- “discriminatory motivation can be readily inferred when solely subjective employment evaluations result in the exclusion of a protected class”
- adopting Ninth Circuit’s standard for proving business necessity articulated in Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981)
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Blair v. Washington State University, 108 Wash. 2d 558 (1987)
104 Wn.2d 722, 727 , 709 P.2d 799 (1985), abrogated on other grounds by Blair v. Wash. State Univ., 108 Wn.2d 558 , 740 P.2d 1379
The opinion
Utter, J.
(concurring in part, dissenting in part) — It is inappropriate to rely on federal law which limits rights of plaintiffs when federal law, unlike Washington law, contains no directive to liberally construe the antidiscrimination statute. 4 The express directive of the Legislature should not be ignored. The majority's refusal to allow this plaintiff the opportunity to use a disparate impact analysis further limits rights of all plaintiffs and is inconsistent with the express legislative intent of RCW 49.60. Adoption by the majority of the "job related" definition least burdensome to the employer while, at the same time, placing the burden of proof with respect to less discriminatory alternatives to the employee is a policy decision also contrary to the explicit legislative intent of RCW 49.60. Moreover, it is inconsistent with our own decisions.
Disparate Impact
If selection criteria are subjective and a plaintiff is unable to prove disparate treatment, the majority leaves a plaintiff who is a victim of discrimination with no legal recourse. The dissent, on the other hand, recognizes that a plaintiff, while unable to prove intentional discrimination required by a disparate treatment analysis, may be able to show through a disparate impact analysis that solely subjective criteria impact a protected group. Under traditional discrimination law, both theories may be tried at the same time. Page v. U.S. Indus., Inc., 726 F.2d 1038 (5th Cir. *738 1984); Peters v. Lieuallen, 693 F.2d 966 (9th Cir. 1982). And both may rely on statistics to prove discrimination. Page v. U.S. Indus., Inc., supra. There is no reason to foreclose a disparate impact analysis simply because only subjective criteria are involved. Moreover, the majority's per se rule immunizes upper level management policies from scrutiny and unfairly burdens employers who use objective as opposed to subjective criteria.
I believe, however, the dissent's formulation at page 742 which appears to require a plaintiff to choose an impact analysis to challenge the use of selection criteria and a treatment analysis for manner of application of selection criteria may be slightly confusing. I would simply permit use of a disparate impact analysis to prove discrimination when it might be difficult or impossible to prove intent to discriminate.
Business Necessity
The majority's business necessity test relies on Title VII, congressional intent, and the United States Supreme Court interpretation of Title VII. However, this court is interpreting RCW 49.60 and need not be bound by those considerations. If this court chooses to place the burden of proof on the employer once a prima facie case of discrimination has been proven, it may do so regardless of federal law.
The majority objects to the business necessity test definition of "job related" in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006 , 30 L. Ed. 2d 655 , 92 S. Ct. 573 (1971). Majority, at 730-32. However, we have already adopted the federal allocation of burden of proof, placing on the employer the burden to show that the practice in question is necessary to the successful performance of the job. Fahn v. Cowlitz Cy., 93 Wn.2d 368 , 384 n.5, 610 P.2d 857 , 621 P.2d 1293 (1980). This requirement is similar to the Lorillard test rejected by the majority. The majority's rejection of the Lorillard "job related" definition and imposition of the burden on the employer to *739 prove that no less discriminatory alternative exists to carry out its business narrowly, rather than liberally, construes RCW 49.60.
For these reasons I join Justice Brachtenbach's opinion.
Pearson, J., concurs with Utter, J.
"The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of . . . sex . . . are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state." RCW 49.60.010.
"The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof." RCW 49.60.020.