Appendix — Franklin County Sheriff's Office v. Sellers

BEFORE THE WASHINGTON STATE HUMAN RIGHTS

COMMISSION

BETTY P. SELLERS,

)

)

Complainant, ) NO. P-41-74

)

v- )

) OPINION OF

FRANKLIN COUNTY SHERIFF'S) HEARING

OFFICE, ) TRIBUNAL

)

Res ent. ) WSHRR, WD

Pend 260 1977

Appearances:

For the Commission:

G. Saxon Rodgers, Assistant

Attorney General

For the Respondent:

George E. Heidlebaugh, Deputy

Prosecuting Attorney, Franklin

County, Washington

Por Richard E. Boyles:+

Stanley Taylor of Peterson,

Taylor, Day & Shea

The Hearing Tribunal

Ms. Mary Ann Ottinger, Chairperson

Professor Robert Aronson

Dr. J. Nelson Judy

lwnile Mr. Taylor filed a Notice of

Appendix No. l, p. l

This matter, having come on for hear-

ing before the above empaneled Tribunal,

upon the Complaint of the Washington

State Human Rights Commission on behalf

of Betty P. Sellers, against the Franklin

County Sheriff's Office, the Tribunal hav-

ing considered all testimonial and docu-

mentary evidence, makes the following

Appearance on behalf of Richard E.

Boyles, individually, on October 6,

1977, and was present at the counsel

table and conferred with counsel for

the Respondent during the hearing, the

Tribunal ruled at the outset of the

hearing that Boyles was not individu-

ally a party to these proceedings, as

the hearing would have proceeded as

a matter of law, even in Boyles’ ab-

sence (through death, resignation, loss

of an election, etc.). However, be-

cause of Taylor's contention that Boyles

felt his “personal integrity” was being

attacked through this proceeding, Taylor

was allowed to examine witnesses solely

on issues relevant to Mr. Boyles’

“personal integrity”. He was not al-

lowed to call any witnesses nor present

any evidence of his own. This Tribu-

nal finds that it has no authority to

pass on the “personal integrity” of a

witness not a party to this proceeding,

and therefore that issue will not be

discussed herein.

Appendix No. l, p. 2

findings of fact.

FACTS

On or about June 21, 1974," the

Complainant, Betty P. Sellers, was re-

ferred to the Franklin County Sheriff's

Office by Mr. Manuel G. Rodriguez of the

Pasco Employment Security Office. Ms.

Sellers was told by Mr. Rodriguez that

there was an opening at the Sheriff's

office for a Work Release Counselor for

which Ms. Sellers would qualify, in

Rodriguez’ opinion. Rodriguez attempted

to set up an interview appointment for

Sellers by telephoning the Sheriff's

Office, but he could not reach the pro-

per party. He therefore told Sellers

to call the Sheriff's Office herself

2rhere was some dispute in the testi-

mony as to the exact date in June, 1974,

on which Sellers sought to apply for the

position in question. Sellers’ testi-

mony was that the date was June 21;

other testimony indicated June 24; how-

ever, this exact date is irrelevant to

the real issues in this case.

Appendix No. l, p. 3

after about one o'clock p.m. that day

and ask for Shirley Billingsley.

Sellers made this call aout one

o'clock p.m. that same day, indicating

she had been referred by Rodriguez, and

inquired of Billingsley about the Coun-

selor position. Billingsley admitted

that, in fact, there was a Counselor

position available, but that they “wanted

aman" to fill it. (There is no dispute

in the record between Sellers and Bill-

ingsley as to the substance of this con-

versation.) When Sellers inquired as

to the reason for this sex qualification,

Billingsley replied that Sheriff Boyles

(Richard E. Boyles) felt that they “needed

a man",

Billingsley then invited Sellers

to fill out an application for another

kind of position which might become avail-

able in the future. Sellers did not go

Appendix No. l, p. 4

down tc the Sheriff's Office becase

she wanted the Counselor position, and

she had already been told "they wanted

a man.”

Sellers subsequently filed a Com-

plaint with the Washington State Human

Rights Commission based upon this inci-

dent which she felt was in violation of

RCW 49.60; and when the Commission in-

vestigated and made a finding that there

was probable cause to believe sex dis-

crimination in employment had taken

place, an attempt to eliminate the un-

fair practice by conference, concilia-

4

tion and persuasion was made. Failing

this effort, a Complaint and subsequent

3\mile Respondents argued that the Com-

mission failed to comply with the re-

quirements of RCW 49.60.240 because

the results of the Commission staff's

investigation were merely reduced to a

“recommended” finding, and that the

Commission itself never passed on the

finding, the Tribunal finds that since

the uncontroverted testimony of Craig

Cole, Commission Clerk, that regular

Appendix No. l, p. 5

Amended Complaint was filed and served

on the Respondents, alleging that the

Sheriff's Office had engaged in an un-

fair practice in violation of RCW 49.60.

180(1), and a duly noted public hearing

in accordance with the provisions of

RCW 49.60.250 was held on October 13 and

14, 1977, in Pasco, Washington.

Commission procedures (as established

in 1974) were adhered to in this case,

and since no evidence was presented by

Respondents to indicate that they had

been prejudiced in any way by such a

"recom. ded" finding, RCW 49.60.240

was com-.ied with in this respect. In

fact, Respondents’ own Exhibit R-l, a

series of letters passing between Re-

spondents and representatives of the

Commission, clearly indicate that there

was no expectation of further and more

binding action by the Commission --

short of public hearing.

4 respondents also contended that RCW

49.60.240 was not complied with in that

conciliation provided for therein was

"in form only but not in substance."

While the Tribunal's ruling with respect

to this issue will not be dealt with in

depth in this Opinion, as the Commission

was granted a partial summary judoment

on this issue prior to the hearing, it

Appendix No. l, p. 6

RCW 49.60.180(1) makes it an un-

lawful practice "to refuse to hire any

person because of such person's ...sex

+++ unless based upon a bona fide occu-

pational qualification...." It is the

Commission's burden in this case to

prove to the Tribunal that Complainant

Betty Sellers’ sex was a factor in her

failure to be hired by Respondents and

that no bona fide occupational qualifi-

cation for the job in question existed

at that time. See Section II, infra.

I.

The Tribunal having disposed of

Respondents’ contentions as to the Com-

should be noted that RCW 49.60.240 does

not contain language requiring “bona

fide” or “good faith" efforts at con-

ciliation. Further, even if Respondents

felt the Commission's demands to be un-

reasonable, the conciliation effort

would still not be one of “bad faith."

See Jonpson v. Skold Wn. Human

Rts. “and Whatcom

gounty v. Langiic. 40 Wn.2da 855, 246

Appendix No. l, p. 7

mission's failure to have followed ad-

ministratively required procedures,

and having granted the Commission's

Motion for Partial Summary Judgment,

the only remaining preliminary and non-

substantive issues raised by Respondents

are whether or not “the Tribunal is

lawfully or constitutionally constituted"

and whether ocr not "the Commission is

attempting to proceed under rules it

has not been granted authority to adopt.”

See affirmative defenses in Respondents’

Answer, numbered X and XI.

Although Respondents presented no

evidence at the hearing in support of

either of these two affirmative defenses,

the Tribunal rules that these issues

are beyond the scope of its authority in

this proceeding. See Yakima County Clean

Air Authority v. Glascam Builders, Inc.,

85 Wn.2d 255 at 257(1975); and Bare v.

Appendix No. l, p. 8

Gorton, 84 Wn.2d 380 (1974). In the

event that this decision of the Tribunal

is appealed to Superior Court, such an

argument could properly be raised at

that time.

It.

In its landmark decision outlining

the basic prerequisites of a prima facie

case of employment discrimination in

hiring, The United States Supreme Court

in McDonnell Douglas Corp. v. Green, 41l

U.S. 792 (1973), listed the following

facts which must be shown by the complain-

ing party:

"(i) that he belongs to a racial

minority; (ii) that he applied

and was qualified for a job for

which the employer was seeking ap-

plicants; (iii) that, despite

his qualifications, he was re-

jected; and (iv) that, after his

rejection, the position remained

open and the employer continued

to seek applicants from persons

of complainant's qualifications.">

Swhile the Green case dealt with racial

Appendix No. l, p. 9

This Tribunal holds that the Com-

mission must be held to those standards

of proof before Respondents' affirmative

defenses may even be reached.

A. Availability of a Job

The testimony and documentary evi-

dence presented reveals that the Frank-

lin County Sheriff's Office had had a

contractual arrangement with the Washing-

ton State Department of Employment Secu-

rity between November 24, 1971 and August

18, 1972, whereby funds made available

under the Federal Emergency Employment

Act of 1971, 42 USC ss 4871-4883 (EEA),

were granted to the Sheriff's Office for

the purpose of hiring “one male counse-

lor (advisor)" for the Sheriff's Work

discrimination, these same standards

for a prima facie case have been held

applicable to sex discrimination cases,

as well. See Dothard v. Rawlinson

U.S. ~~ I5 FEP Cases 10 (U.S.

Sup. Ct., June 27, 1977).

Appendix No. l, p. 10

Release Program. See Exhibit C-7. Such

an individual (male) was hired.

In January, 1972, Shirley Billing-

sley (a female) was hired by the Sheriff's

Office as a counselor in the Work Release

Program. On April 21, 1972, a revised

contract was entered into between the

Employment Security Department and the

Sheriff's Office for funding for three

positions, including a Director for the

Work Release Program and a “Male Counse-

lor." See Exhibit C-8. This contract

was still due to terminate August 18,

1972.

Further, on November 26, 1971, a

third agreement was entered into between

the above named parties providing EEA

funding for a “Female Counselor" posi-

tion for the Sheriff's Office. This

funding was to run from December 1, 1971

through October 28, 1972. See Exhibit

Appendix No. l, p. ll

C-9. Presumably it was this position

which Shirley Billingsley filled, and

when funding was made available for a

Work Release Director (See Exhibit ( -8),

Ms. Billingsley moved into that position

but continued to perform “counseling”

duties along with the “male counselors."

Subsequently, both male counselors ter-

minated their County employment leaving

Billingsley as the sole counselor in the

Work Release Program.

The above agreements were extended

numerous times, finally ending in a ter-

mination date of May 3l, 1973 for one

agreement (See Exhibit C-10) and March

31, 1974 for the other. (See Exhibit

(c-11) .°

According to the uncontroverted

testimony of Manuel Rodriguez of the

rhe testimony and documentary evidence

relative to the relationship between the

above numbered contracts and the job po-

Appendix No. l, p. 12

State Employment Security Department,

on March 31, 1974, the EEA Program was

superceded by the Federal Comprehensive

Employment and Training Act of 1973, 29

USC ss. 801 et seg. (CETA). However,

because the Franklin County Sheriff's

Office had not fully expended EEA funds

authorized under previous agreements, a

short-term contract (from June 1 through

sitions available is extremely conflict-

ing. Because even the parties involved

-- i.e., Shirley Billingsley -- could

not testify as to the exact dates of

employment, the Tribunal was unable to

relate specific contracts to specific

employees. However, we find that for

purposes of this decision, it is suffi-

cient to note only that Respondents had

a past practice of hiring counselors

(both male and female) through EEA fund-

ing, and that during some periods of

time, Shirley Billingsley was the only

Work Release Counselor in the Sheriff's

Office. The Tribunal also notes that

at least until March 31, 1974, counse-

lors were designated “male” and “female”.

Also, Shirley Billingsley was, at some

point, “absorbed” into the regular

County payroll and her employment con-

tinues in that manner to date.

Appendix No. l, p. 13

August 15, 1974) was entered into between

the County and the Employment Security

Department to use up these funds for a

“counselor” position. See Exhibit c-12’

A job order was drawn up by Rodri-

guez on June 3, 1974 for the “counselor”

position, consistent with his usual prac-

tice with EEA funded positions. This

jol order contained the qualifications

Tywnile Respondents argued throughout

the hearing that this contract, iden-

tified as Exhibit C-12, was never au-

thorized by the Sheriff and, in fact,

had never been seen by him until shortly

before the hearing, the Tribunal finds

the testimony of County Commissioner

Bruce D. Whitemarsh, signator to the

agreement, to be most credible on this

point. He testified, in effect, that

he would not have signed the contract

(C-12) on behalf of the County if he

had not been requested to do so by the

Sheriff, as his (Whitemarsh's) respon-

sibility did not include expending

funds, but getting them into the bud-

get. Further, the Sheriff's own testi-

mony was that he recalled discussing

with the County Commissioners the pos-

sibiltiy of EEA or CETA funds for a

counselor position prior to Sellers’

Complaint, June 24, 1974. See Exhibit

R-4 .

Appendix No. l, p. 14

specified by the Sheriff's Office’ for

the vacant position, but did not include

any reference to a preference for male

applicants. See Fxhibit C-13. Rodri-

guez and Sellers testified that it was

for this position that she was referred

to Shirley Billingsley. Sheriff Bovles

subsequently acknowledged not only the

availability of the counselor position,

but its relationship to the unexpended

EEA funds in his letter to the Washing-

ton State Human Rights Commission inves-

tigator, Velma Jefferson, dated July ll,

1974. See Exhibit C-22. The contents

of this letter clearly defeat any argu-

Sastrigues was unclear in his testimony

as to whether he received specific

qualifications from the Sheriff himself

or Billingsley. In light of the Sheriff's

own testimony that he discussed with

Billingsley the qualifications for the

counselor position, including the re-

quirement that the employee be male,

the Tribunal finds that even if Bill-

ingsley provided Rodriguez with the

qualifications, she was acting as an

agent of Sheriff Boyles.

Appendix No. l, p. 15

ment Respondents could make about the

non-availability of this position. We

believe the contents of this letter to

be so conclusory on this point that

they deserve to be recited below:

"July 11, 1974

"Mr [sic] Velma J. Jefferson, In-

vestigator, Wn. State Human Rights

Commission, 112 South Fourth Avenue

- Room 7, Pasco, Washington 99301

Dear Sir: [sic]

Our Work Release Section consists of

one person at this time, a female. We

originally had three employees, one

female and two males, but found our

load was not heavy enough to warrant

three employees. We let one male em-

ployee go and then later the second

employee found other employment leaving

just the female to operate this depart-

ment. Just recently E.E.A. provided

funds enabling this department to hire

one more employee for this section. It

is my feeling that this employee should

be a male since there are times that a

male cannot communicate with a person

of the opposite gender, and that the

male prisoners on work release are

much greater than the amount of females

we have on work release.

When the funds became available for

this opening, I instructed the Work

Appendix No. l, p. 16

Release Director to screen all male

applicants leaving the final decision

to myself as to who would be hired. I,

at this time, still feel this position

should be filled by a male counselor.

If you have any further questions please

feel free to call on me.

Sincerely,

Richard E. Boyles, Sheriff

REB/rts"

B. Application and Threshold Refusal

The testimony of Sellers, Rodriguez

and Billingsley was clear that Sellers

did, in fact, attempt to apply for the

Work Release Counselor position on or

about June 21, 1974. The fact that she

failed to either fill out an application

form or appear for an interview is irre-

levant in light of case law holding that

a threshold refusal to consider for hir-

ing, because of sex, constitutes an un-

fair practice within the meaning of

KCW 49.60.180(1). The case of Arnette

v. Seattle General Hospital, 65 Wn.2d

22 (1964), is but one example of many

Appendix No. l, p. 17

situations where individuals of one pro-

tected class or another are told, in

effect, not to “bother” to apply because

they are the wrong sex, race, age, etc.

Betty Sellers' attempts to obtain the

counselor position in question here went

as far toward that end as would be reason-

able, and the Tribunal finds that any

further effort on her part would have

been futile. The law does not require

futile efforts.

C. Qualifications

Having established that Complainant

Sellers did, in fact, attempt to apply

for a position that was available, we

must now consider whether the Commission

has met its burden of proving that Sel-

lers had the qualifications for the posi-

tion at that time.

The Tribunal looks to several sources

of evidence for the necessary qualifica-

Appendix No. l, p. 18

tions for this counselor position: (1)

The qualifications of Shirley Billings-

ley herself; (2) the qualifications of

others who had filled the position in

the past; (3) the Sheriff's own expecta-

tions for this position; and (4) the

opinions of others who worked with Shir-

ley Billingsley and previous counselors

in the Work Release Program.

Because Shirley Billingsley was,

and continues to be, the sole Work Re-

lease Counselor in the Franklin County

Sheriff's Office, as well as its Direc-

tor, and because not a scintilla of ad-

verse evidence as to her abilities or

job performance was heard by the Tribu-

nal, we look first and foremost to her

as an example of the type of counselor

being sought. With the exception of a

preference for a male, which will be

dealt with below, even the Sheriff him-

Appendix No. l, p. 19

self, having the ultimate power to hire,

testified Billingsley continues to do

"an excellent job." Boyles did, how-

ever, testify that in June, 1974, he

wanted to “upgrade the general cualifi-

cations" of the counselors and hoped

to find someone with either a “psychology

or social education background. "?

Billingsley attended three differ-

ent colleges and universities, but never

attained a degree before her counseling

job in the Sheriff's Office, and is still

working on her Associate of Arts Degree,

Sellers, on the other hand, has a Bache-

lor's Degree in Sociology and Psychology

and is close to completion of a Master's

program in Guidance and Counseling.

Sone Tribunal noted that when asked to

describe the qualifications of the

males who had previously filled the

counseling positions, Boyles could not

recall, and yet these were the male

counselors he felt had effectively

supplemented the work of Shirley

Billingsley in Work Release counseling.

Appendix No. l, p. 20

Billingsley worked as a legal and execu-

tive secretary prior to her Sheriff's

Office job and had no previous counseling

experience. Sellers has had many years

of teaching and counseling experience,

including work with migrant workers in

the Pasco area and some teaching exper-

ience with work release inmates.

Respondents called Chuck Pierson

to testify in their behalf, and his tes-

timony, while credible to the Tribunal,

only served to emphasize that Betty Sel-

lers was, at the time of her attempted

application, well qualified to be a Work

Release Counselor in Franklin County.

Pierson had held such a position himself

and had worked with Shirley Billingsley.

In fact, Pierson testified that because

of Billingsley's lack of counseling ex-

perience, the Mid-Columbia Mental Health

Center had been providing those services

Appendix No. l, p. 21

to the inmates of the Franklin County Jail

on Work Release.

Finally, the Tribunal notes that

witnesses who were called by Respondents

(presumably to support their bona fide

occupational qualification defense dis-

cussed below) each had praise for the

abilities and performance of Billingsley,

in spite of her lack of education and ex-

perience,?°

The Tribunal concludes, therefore,

that not only was there a position avail-

able in the Franklin County Sheriff's

Office for which Complainant attempted

to apply, but it was further one for

which she would have been qualified if

she had not been presented with a thres-

10506 testimony of Lawrence S. Moore,

Chief Deputy Prosecuting Attorney,

Franklin County; C.J. Rabideau, Assist-

ant Prosecuting Attorney, Franklin

County; Judge Richard G. Patrick, Frank-

lin County Superior Court judge; Dr.

William D. Sherman, M.D., Mid-Columbia

Mental Health Center.

Appendix No. l, p. 22

hold disqualification based on her sex.

D. Refusal to Hire

The testimony is uncontroverted

that Sellers was, in fact, refusec the

opportunity to apply for the available

counselor position, and the written state-

ment of Shirley Billingsley, Exhibit C-6,

documents this fact.?

Ms. Sellers' sex was the only rea-

son given for this threshold refusal,

and even at the hearing, Respondents

presented no other factors for her re-

“ection.

E. Subseguent Hiring

While the testimony of all knowledge-

able witnesses was that no one (male or

female) has subsequently been hired to

tiohis exhibit states in part, "Ms.

Sellers requested an interview for

this position and I informed her at

that time that the need was for a male

counselor."

Appendix No. l, p. 23

fill the counselor position in question,

Sheriff Boyles testified that the only

reason for this was the filing of Ms.

Sellers’ Complaint. In fact, he testi-

fied that Ms. Billingsley “could use

more employees" in her program. There-

fore, this is not a case where subse-

quent to the alleged discriminatory inci-

dent, the job ceased to be available.

In point of fact, another CETA contract

for the counselor position was entered

into on September 3, 1974, and was sche-

duled to provide funding for this posi-

tion for another ten and one half months.

See Exhibit C-18.

So while Respondents may not have

continued to seek applicants for the

counseling position after rejecting

12

Sellers, they gave every indication

+“where is some indication that they did,

however, in that Ms. Billingsley recalled

at least one male applicant subsequent

to the refusal to consider Sellers for

the position.

Appendix No. l, p. 24

of intending to, as soon as the present

matter was resolved. The letter dated

December 31, 1974 of Sheriff Boyles to

Rodriguez “releasing” these CETA funds

for the counselor position came only

after the Sheriff satisfied himself that

Sellers' Complaint relative to the posi-

tion still presented a problem to him.

See Exhibit C-23. Finally, Respondents

entered into a “renewed and revised"

agreement dated March 18, 1975 to extend

financing for the position through June

18, 1975, but changing the nature of

the funded position to "contract, clerk,

auto." See Exhibit C-19. While the

Tribunal takes cognizance of the fact

that Boyles denied any knowledge of

either the September or March contracts,

we find the sequence of events with re-

spect to these contracts more than coin-

cidental, and hold that the most reason-

Appendix No. l, p. 25

able finding supports the assertions of

the Commission that the Sheriff's Office

continued its contractual arrangement

for EEA and CETA funding so as not to

lose that “working relationship."?>

The funding would most probably have

continued and been used to salary a work

release counselor until at least June 18,

1975, but for Betty Sellers' Complaint.

The Tribunal therefore finds that simply

because Respondents’ discriminatory prac-

tices may have been tolled while this

Complaint was pending, the Commission's

prima facie case will not be defeated,

unless Respondents could show an intent

to change their practices. No such evi-

dence appearing, we find the Commission's

prima facie case complete.

The Tribunal thus has no choice but

T3 see Sheriff Boyles’ letter to Rodri-

guez (Exhibit C-23) indicating a view

toward "a continuing working relation-

ship in the new year.” [1975].

Appendix No. l, p. 26

to conclude that an unfair practice in

violation of RCW 49.60.180(1) occurred,

and so long as the Commission can prove

that Sellers was damaged thereby, a prima

facie case has been made and the Tribunal

may now reach the affirmative defenses

raised by Respondents to justify their

actions./4

Itt.

While Respondents presented evidence

attempting to disprove each of the ele-

ments of the Commission's prima facie

case, it was apparent that the real

thrust of Respondents’ case rested on

evidence of an alleged bona fide occu-

pational qualification (BFOQ) exception

to RCW 49.60.180(1) for the counseling

14 mile Respondents raised the issue of

respondent superior in their Answer, no

evidence was presented at the hearing

on that defense, and the Tribunal finds

that Shirley Billingsley acted as an

agent of, and upon the express instruc-

tions of, Sheriff Boyles, when she re-

jected Ms. Sellers.

Appendix No. l, p. 27

position in question. While such an ar-

gument (BFOQ) acknowledges that Sellers’

hiring did not take place because of her

sex, Respondent is still not precluded

from making such seemingly contrary ar-

guments.*> However, Respondents are

bound to prove such an exception by a

preponderance of the evidence. Weeks

v. Southern Bell, 408 F.2d 228 at 232

(5th Cir. 1969); Haslund v. Seattle, 86

Wn.2d 607, 547 P.2d 1221 (1976); Opinski

v. Clements, 73 Wn.2d 944, 442 P.2d 260

(1968).

Dothard v. Rawlinson, U.S. _,

15 FEP Cases 10 (U.S. Sup. Ct., June 27,

15 It should be noted here that while

the Tribunal members spent considerable

energy during the hearing attempting to

hear all the facts relevant to the Com-

plaint, the offensive and disrespectful

conduct of counsel for the Respondents,

often directed at the Tribunal itself,

made it extremely difficult for the

Tribunal to decipher what the true thrust

of Respondents’ case really was.

Appendix No. l, p. 28

1977), +8 most recently delineating the

limits of the BFOQ exception, held that

it was to be extremely narrowly applied,

but cited therein the Weeks case, supra,

which most clearly spells out the employ-

er's “rule of thumb" for application of

a BFOQ to a particular job:

"We conclude that the principle of

non-discrimination requires that

we hold that in order to rely on

the bona fide occupational quali-

fication exception an employer has

the burden of proving that he had

reasonabie cause to believe, that

is, a factual basis for believing,

that all or substantially all wo-

men would be unable to perform

safely and efficiently the duties

of the job involved.” (Emphasis

added.)

Respondents here argue not that “all

16cection 703(e) of the 1964 Civil Rights

Act (42 USC sec. 2000e, et. seq.),

sets forth the BFOQ exception in the

federal statute in lancuage similar to

that used in RCW 49.60.180(1). WAC

162-30-010 provides that, in the inter-

est of consistency, and to avoid con-

fusion on the part of persons governed

by both state and federal sex dixcrim-

ination laws, interpretations of the

comparable federal law will generally

be followed by the State.

Appendix No.l, p. 29

or substantially all women would be un-

able to perform safely and efficiently

the duties” of a Work Release Counselor.

On the contrary, they praise the efforts

of one woman who had handled the job

singlehandedly for in excess of four years.

Their argument is simply that it is the

belief of the Sheriff that if he has two

counselor positions available, it would

be “better” to have one male and one fe-

male. Thus, having already employed one

female (Shirley Billingsley) and having

one more vacancy, he should be entitled

to hire a man and turn down all female

applicants on this principle.

Diaz v. Pan American World Airways,

442 F.2d 385 (Sth Cir. 1971) makes clear

the fallacy in this argument, however.

In that case, the court made the dis-

tinction between “necessity” and "con-

venience." If hiring a male for the

one vacant counselor position was a

Appendix No. 1, p. 30

necessity to the Work Release Program,

the law would probably sanction this

practice as a BFOQ. But since it has

been proven that a woman is not only

capable of handling the job, but can

handle it quite effectively, hiring a

man for the second position -- to the

exclusion of all females, no matter how

qualified -- becomes a mere preference

or convenience.

Similar areas of preference or

convenience were pointed out by Respon-

dents’ witness Chuck Pierson, who testi-

fied that in his experience as a coun-

selor, not only do some inmates on Work

Release relate better to one sex or the

other, but also to one race or the other,

different age groups, counselors with

differing cress and grooming habits, etc.

It is thus clear to the Tribunal that a

BFOQ exception to the discrimination

Appendix No. l, p. 31

statute is not warranted where there

is no evidence that women as a class

cannot perform the functions of a coun-

selor. A preference by the Sheriff for

“one of each" becomes faulty reasoning

when held to the standard of RCW 49.60.27

This reasoning becomes even more

invalid when the qualifications of Betty

Sellers for the job in question are con-

sidered. By the standards described

by the Sheriff himself, a better quali-

fied applicant would have been difficult

to find.

Iv.

Complainant testified that she did

not obtain other employment immediately

after her threshold rejection by Respon-

dents. She therefore has been damaged

to some extent by Respondents’ viola-

TT nile the Tribunal feels very strongly

about striking down the BFOQ defense

in this case, it also noted carefully

the “strong opinions" of individuals

Appendix No. l, p. 32

tion of RCW 49.60.180(1). The extent

of her damages is a far more complex

question and will be dealt with below

in the Tribunal's fashioning of a remedy.

CONCLUSION

In conclusion, the Tribunal finds

that (1) the Respondent Franklin County

Sheriff's Office violated RCW 49.60.

180(1) by refusing to give Complainant

Betty P. Sellers the opportunity to ap-

ply for the position of Work Release

Such aS Dr. Sherman, Mr. Pierson, Ms.

Billingsley, and others who work

closely with the Work Release Program,

that it may be desirable to employ a

counselor of each sex, if possible.

However, the Tribunal fails to see the

relevancy of the cliche’ used by coun-

sel for the Respondents that "it's nice

to have a man around the house," as the

above witnesses all testified that male

counselors are available to the Franklin

County Jail through the Mid-Columbia

Mental Health Center on a regular basis.

Further, all of Respondents' witnesses

but Dr. Sherman conceded that a well-

qualified female would be preferable to

a less-qualified male, and that, there-

fore, Ms. Sellers' application should

have been accepted, in case she turned

out to be the best qualified for the po-

sition, despite the Sheriff's preference

for a male.

Appendix No. l, p. 33

Counselor because of her sex; and (2)

neither the BFOQ nor any other affirma-

tive defense is supported by the evi-

dence.

REMEDY

The Tribunal is particularly guided

by the principles set out in WAC 162-08-

298(9) in fashioning a remedy for the un-

fair practice committed by Respondents:

"The guiding principle for the Tri-

bunal is whether a particular re-

medy will effectuate the purposes

of the law against discrimination."

Thus, even an award of back pay to

Complainant is not so much a private

award of damages, as it is a "public

reparation order." WAC 162-08-298(9).

But the Tribunal in this case is

singularly impressed with its responsi-

bility to see that the Respondents do

not continue to utilize employment prac-

tices which have the effect of excluding

women as a class from certain jobs. The

Appendix No. l, p. 34

fact that the Tribunal has found that a

preference for one counselor of each

sex does not rise to the level of a legal

definition for a BFOQ verifies the need

for a cease and desist order relevant to

practices specifically predicated on

this manner of thinking.

1. The Tribunal therefore orders

the Respondents to cease and desist from

refusing to hire Complainant Betty Sellers

or any other woman for work release coun-

seling or any similar positions, even if

Respondents deem it preferable to have

one counselor of each sex, unless subse-

quent to this opinion, such position is

declared by the Commission to have BFOQ

status pursuant to WAC 162-16-020, -030,

and -040, under the procedures of WAC

162-08-700.

2. With respect to the Complainant

Betty Sellers individually, the Tribunal

has found that she was unlawfully refused

Appendix No. l, p. 35

the opportunity to apply for a Work Re-

lease Counselor position availeble through

EEA funding on June 21, 1974. The testi-

mony and documentary evidence show that

this position would have been continu-

ously available at a monthly salary of

$600 from the above date until at least

June 18, 1975, the termination date of

the last CETA contract with Respondents. =®

While Shirley Billingsley's testimony

that her own position which began as an

EEA funded position, was eventually ab-

sorbed into the regular Sheriff's Office

budget, and she remains employed on that

basis yet today, the Tribunal finds that

it would be pure speculation to conclude

that Betty Sellers would have remained

employed beyond June 18, 1975. While

180he Tribunal has found that but for the

Complaint of Betty Sellers, this final

contract, running from March 18 through

June 18, 1975, would have funded a coun-

selor position, instead of the "contract,

clerk, auto" position.

Appendix No. l, p. 36

the Tribunal is cognizant of the testi-

mony of both Billingsley and Sheriff

Boyles that a second counselor is needed

in the Work Release Program yet today,

there was no testimony to support a find-

ing that the Sheriff's Office would fund

such a position without the availability

of CETA funds. Absent that testimony,

the Tribunal orders that Respondents pay

to Betty Sellers the total sum of $7,200

in back pay, representing wages she would

have earned at the rate of $600 per month

from June 21, 1974 through June 18,

1975. Any and all benefits incident to

such employment shall also be paid to

Sellers for the above period.

3. Further, the Tribunal orders

Respondents to offer to hire Betty Sel-

lers for the first available work re-

lease counseling position, or any simi-

lar position, whether the job is funded

through CETA monies, the regular County

Appendix No. l, p. 37

budget, or through any other means.

Sellers shall be given notice of said

offer by registered mail, copy to the

Washincton State Human Rights Commis-

sion, 1601 Second Avenue Building,

Seattle, Washincton, 98101, and she

shall have ten days in which to either

accept or reject the Respondents’ offer

in the same manner. In the event that

Sellers refuses to accept Respondents’

first offer of employment, she shall be

similarly notified of all future vacan-

cies for such positions, and be given

the right of first refusal for such

positions for a period of two years from

the date of this Opinion. Copies of

said notifications shall also be mailed

to the Commission. Sellers shall have

ten days in which to either accept or

reject these positions as well.

4. Any position which Betty Sellers

chooses to reject shall be advertised

Appendix No. l, p. 38

in a local publication of daily or

weekly circulation and through the Pasco

Office of the Employment Security Depart-

ment. Applicants shall be considered

without regard to sex or any other pro-

tected classification defined under RCW

49.60.180, and the Commission shall be

promptly notified of the name, address

and sex of each individual hired.

5. Respondents shall have thirty

days from the entry of this order to

submit to the Commission written cri-

teria for the evaluation of applicants

for work release counseling (or similar)

positions. The Commission shall have

ten days thereafter within which to file

objections with this Tribunal regarding

said proposed criteria. If no objection

is made, the Tribunal will approve

entry of an order implementing such cri-

teria. If counsel for “he Commission

Appendix No. l, p. 39

object to the proposed criteria, this

Tribunal will promptly hold a hearing

and rule on the adequacy thereof.

Jurisdiction of the above entitled

matter shall be retained by the Tribunal

until the above remedies have been im-

plemented.

In the event that the functions

of the Franklin County Work Release Pro-

gram are transferred from the Sheriff's

Office to some other County department,

the terms of the above order shall apply

to that department.

Dated this 28th day of November,

1977.

s/Mary Ann Ottinger

Ms. Mary Ann Ottinger,

Chairperson

s/ Robert Aronson

Professor Robert Aronson

s/ J. Nelson quay

Dr. J. Nelson Judy

Appendix No. l, p. 40

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON, IN AND FOR THE COUNTY OF

FRANKLIN

FRANKLIN COUNTY SHERIFF'S

OFFICE,

)

) No. 23165

)

Petitioner, )

)

-VS- )

)

BETTY P. SELLERS, )

Complainant, WASHINGTON )

STATE HUMAN RIGHTS )

COMMISSION, )

)

Respondent, )

)

-VS- )

)

)

)

)

FRANKLIN COUNTY SHERIFF

RICHARD E. BOYLES,

Intervenor. /

Proceedings had before the HONORABLE

WALTER A. STAUFFACHER, visiting Superior

Court Judge from the County of Yakima,

in and for the County of Franklin, on

October 6, 1978, at Pasco, Washington.

ORAL OPINION OF THE COURT

THE COURT: Good morning everyone.

I must apologize, I think, for being

so long as I have in getting back to give

Appendix No. 2, p.l

you this opinion. There have been a lot

of things that have occurred in the mean-

time such as a first degree murder case

and a two week products liability case

and a few other things kind of like that.

This will be a little bit disjointed.

I have some outlines of what I am going

to say, but I don't have it written out,

so it might be a little bit disjointed as

we go along.

I might indicate to you that I went

over this matter as thoroughly as I possi-

bly could. I first read the briefs of

counsel and their authorities, and I did

some -- also did some other looking, and

I will refer to some cases which were not

cited, but I have read everything at

least twice, the entire bundle, that

pile, the testimony and all of the ex-

hibits and everything else. I thought

that I needed to, and as I indicated,

I read the briefs, read the authorities,

Appendix No. 2, p.2

then went through all the testimony and

exhibits and went back and did it over

again just to be sure that I was not

missing something somewhere along the

line.

Now, to sort of lay the groundwork

here, the rules for the review of tribu-

nal findings and orders should perhaps

be set out. Cited to me has been this

Milwaukee Railroad case in 87 W 2d 802

where there are three particular holdings

in that case. The first was that the word

“handicap” was not unconstitutionally

vague, and that doesn't apply to this

case. Second was the appearance of fair-

ness doctrine applies to tribunal mem-

bers, and that was raised as far as this

case is concerned, and the third was

that the general policies and quidelines

for selecting tribunal members are rules

which require formal adoption. That

was not raised as far as this case is

Appendix No. 2, p.3

concerned.

However, that case does recognize

that, and quoting from it,

"There appears to be no question

that the Commission is an ‘agency’

within the Administrative Proce-

dure Act.",

and so we have to follow the Administra-

tive Procedure Act in terms of how this

Court would view this particular case.

So turning to the Administrative

Procedure Act, it indicates that review

should be conducted by the Court without

a jury, which, of course, followed, and

shall be confined to the record, which

I previously had ruled upon.

Now, going into what the guidelines

for the Court are, it indicates in RCW

34.04.130(6) that:

"The Court may affirm the decision

of the agency or remand the case

for further proceedings; or it may

reverse the decision if the sub-

stantial rights of the petitioners

may have been prejudiced because

the administrative findings, in-

ferences, conclusions, or decisions

are:",

Appendix No. 2, p.4

and then it lists subsections. The last

three are basically what apply to this

case. They are that they are affected

by other error of law, or are clearly

erroneous in view of the entire record

as submitted and the public policy con-

tained in the act of the legislature

authorizing the decision or order, or

they are arbitrary and capricious. I

will get into the definitions of those

particular terms later as they apply

to this case.

Let me address myself to the first

three where the Court may take those

particular actions.

One, whether or not this particular

situation is in violation of any consti-

tutional provisions.

Now, there were claims that there

was some unconstitutionality as far as

this matter was concerned. One was in

Appendix No. 2, p.5

terms of the selection of the tribunal

members, and the other dealt with the

oath. Now, there was no constitutional

provision cited to the Court that any

of these statutes, and it was statute

49.60.250 which sets out the selection,

the method of selection and the qualifi-

cations of the tribunal members. It

specifies who the members shall be. They

shall not be members of the Commission

who or anyone who has been previously

connected with the case and things of

that nature. There is no provision of

the constitution which has been cited

to the Court or any cases for that mat-

ter which indicate that there is an un-

constitutional selection as far as the

tribunal members are concerned.

With respect to the matter of the

oath which is prescribed by the Wash-

ington Administrative Code, the Court

again can find nothing unconstitutional

Appendix No. 2, p.6

as far as the oath is concerned. No-

where in the constitution of either the

United States or the State of Washington

am I familiar with that prescription, a

particular method of oath.

Now, it has been claimed that the

only oath that is required is that they

would uphold the laws of the State of

Washington and the United States. That

is contained within this particular oath.

Here it prescribed, the oath prescribed

requires that they sign under oath

themselves that they would be impartial

as far as the proceedings are concerned;

that they will view the matter in all

fairness, and that they will adhere to

the laws of the State of Washington re-

garding discrimination. This certainly

doesn't violate the constitution.

There are many different types of

oaths of all kinds that are administered

Appendix No. 2, p.7

to all kinds of pecple. I think of the

oath that is given medical doctors, the

Hippocratic oath. I think of the oath

of attorneys which is -- you take one

of these legal sheets, and the oath for

attorneys when they are sworn into the

bar at least that long and contains so

many other things other than just a

promise to uphold the laws of the State

of Washington and the United States that

if we follow the argument of counsel,

it would in and of itself be unconsti-

tutional.

But I find that there is no viola-

tion of any constitutional provisions.

So then we pass on to the second

area where the Court is operating within

these guidelines, and that is that they

operated, the tribunal, operated in ex-

cess of the statutory authority or juris-

diction of the agency.

Now, in connection with the parti-

Appendix No. 2, p.8

cular subsection, we need only look to

the statutes themselves. The statutes

clearly set out the jurisdiction of the

agency. They clearly spell out the

authority and the procedure to be fol-

lowed in terms of processing any com-

plaint that comes before it, that comes

before the Commission. They authorize

and set these out with particularity and

for that we need only look to RCW 49.60.

180. I am not sure that I -- yes, I

Cid. That is the particular statute

which applies most particularly to this

case in which it states, and quoting:

"It is an unfair practice for any

employer: (1) To refuse to hire

any person because of such person's

age, sex, marital status, race,

creed, color, national origin, or

the presence of any sensory, men-

tal, or physical handicap, unless

based upon a bona fide occupational

qualification:”

Now, they set that out with parti-

cularity, and under that, it comes spe-

cifically -- they specifically placed

Appendix No. 2, p.9

this under the jurisdiction of the

agency, and there was nothing done by

the agency, the Commission or the tri-

bunal which was in excess of what was

spelled out specifically in statute,

so I find that there is nothing there

that was done that was in excess of sta-

tutory authority or the jurisdiction

of the agency.

Going to the third, that the admin-

istrative findings or conclusions and so

forth are made upon unlawful procedure.

Again, we need only to look at the

statutes because they spell out again

with a good deal of particularity what

th» procedure shall be in terms of a

complaint filed before the Commission.

First the Commission must investi-

gate the matter and make findings. Now,

there was some contention that no find-

ings were made by the Commission because

Appendix No. 2, p.10

the investigator put it in the language

that there was a recommendation that a

discriminatory practice -- that the Com-

mission had found that there was a dis-

criminatory practice that had been made.

I think that is a matter of pure seman-

tics because there is no question that

the Commission adopted that recommenda-

tion as a finding and made it a finding

by their action.

After that has been done, of course,

then you go into the conciliation process

which did not work in tis particular

situation and really has nothing to do

with the case, and then it goes before

the Commission. The statute then very

clearly says the Commission does not

hear this. We set it aside to a parti-

cular tribunal. The qualifications and

requirements for the tribunal members

are set out in the statute, and so this

total procedure that has been followed

Appendix No. 2, p.ll

as far as this case is not an unlawful

procedure. It is set forth with great

particularity by the legislature in the

statutes, and because there is a

separation there between the Commission

and the tribunal members, and because

the oath that they are required to

take and the qualifications that are

set forth in the statute for them, I

don't find any evidence in this case of

any kind of any violation of the appear-

.ace of fairness doctrine.

All right. Let's then turn to the

last three areas of guidelines for this

Court.

First is whether or not the admin-

istrative findings and conclusions and

decisions are affected by error of law,

are clearly erroneous, or are arbitrary

and capricious.

Again, we need to look at the law

to determine what it was that raised

Appendix No. 2, p.12

the complaint in this particular situa-

tion. Again, paraphrasing the statute

which is 49.60.1180, it was brought under

this statute that it is an unfair prac-

tice for any employer to refuse to hire

any person because of such person's sex,

unless based upon a bona fide occupation-

al qualification.

Reference has also been made to

Article XXXI of the Washington State Con-

stitution wherein Section 1 states:

"Equality of rights and responsi-

bility under the law shall not be

denied or abridged on account of

sex.",

and Section 2 of that Article XXXI,

"The legislature shall have the

power to enforce, by appropriate

legislation, the provisions of

appropriate legislation, the

provisions of this Article."

Now, this is Article XXXI, commonly

known as the Equal Rights Amendment, which

was a referendum by the legislature to

the people of the State. It was passed

Appendix No. 2, p.13

and approved on November 7 of 1972, a

couple of years before this particular

situation arose. It is in the news right

at the moment. As I came into town this

morning and listened to my car radio, I

see that the Senate passed and extended

the time for amending the U.S. Constitu-

tion for another 39 months which does

not require the President's signature,

which I didn't know, but apparently

it does not.

In any event, it appears that as

far as the will of the people of the

State of Washington is concerned that

this Equal Rights Amendment should apply

to all the people of the State of Washing-

ton.

Now, that is the basic framework of

the law under which this complaint was

brought.

I think perhaps we ought to explain

these terms a little bit in terms of

Appendix No. 2, p.14

what “other error of law" means, what

“clearly erroneous" means, and what “ar-

bitrary and capricious” means.

The matter of Albertson's v. Human

Rights Commission, 14 Wash App 697, indi-

cates that -- tells us what “other error

of law" means. In that particular case, a

young man had brought a discrimination

suit on the grounds that he was required

to particularly cut his hair while the fe-

male employees were not, and the case

held that the company regulations regard-

ing the length of male hair was not sex

discrimination within the statute. In

terms of error of law, they indicated that

discrimination is deprivation of an

equal opportunity because of an immuta-

ble sex classification. This is what

they are talking about in terms of as

far as the law is concerned, whether

there was a violation or an error of law

in terms of this.

Appendix No. 2, p.15

So they defined discrimination in

that case as deprivation of equal oppor-

tunity because of an immutable sex classi-

fication, not something that can be --

What they mean by immutable is the phy-

sical characteristics of individuals and

not the things that can be done by cut-

ting of hair or shaving or whatever.

In terms of what “clearly erroneous”

means, the case of Department of Ecology

v. Ballard Elks, 84 W 2d 551, gives us

this language, and I am quoting from it:

"To reach a conclusion that a de-

cision or order of an administra-

tive tribunal .. . is ‘clearly

erroneous' within the purview of"

the statute, "the reviewing court

must, based upon the record before

it, be firmly convinced that a mis-

take has been committed, even

though there be evidence support-

ing the decision or order. In the

course of judicial review, due def-

erence must be given to the spe-

cialized knowledge and expertise of

the administrative agency. The re-

viewing court cannot simply sub-

stitute its judgment for that of

the agency.”

This was further explained in The

Appendix No. 2, p.16

Department of Ecology v Kirkland, as 8

Wash App 576. The Court there indicated

that:

“Indeed, the test requires that the

reviewing Court evaluate the entire

record -- not merely the findings

or conclusions -- to determine

whether or not,"

and this is the test,

“After such review, the Court is

left with the definite, and firm

conviction that a mistake has been

committed by the administrative

agency.”

If we turn to the test as far as

“arbitrary and capricious" is concerned,

that test is set out in Wigmosta v. Seat-

tle, 8 Wash App 681, wherein they state

that:

“Arbitrary and capricious action of

administrative bodies means willful

and unreasoning action, without con-

sideration and in disregard of facts

of circumstances. Where there is

room for two opinions, action is

not arbitrary or capricious when

exercised honestly and upon due con-

sideration, even though it may be

believed that an erroneous con-

clusion has been reached.”

So those are the three tests that

Appendix No. 2, p.17

we are going to be applying and looking

at as far as this case is concerned.

I should explain that we have to again

look at the statutes a little bit as

far as the "clearly erroneous" test is

concerned because there are two prongs

to it. One, it says that the adminis-

trative findings, conclusions and de-

cisions are clearly erroneous in view

of the entire record as submitted, which

I have just defined through the Ballard

Elks case, but the second prong to it is,

and the public policy contained in the

act of the legislature authorizes the de-

cision or order. In other words, it has

to be clearly erroneous in view of the

public policy. Again, we have to iook to

the statute with respect to this particular

case which is 49.60, and under .010 of

that section, it states that, and here

is the policy as given by the State:

Appendix No. 2, p.18

"The legislature hereby finds and

declares that practices of dis-

crimination against any of its

inhabitants because of race, creed,

color, or national origin are a

matter of state concern, that

such discrimination threatens not

only the rights and proper privi-

leges of its inhabitants but men-

aces the institutions and founda-

tion of a free democratic state.”

In the next subsection, they indi-

cate that:

"The provisions of this chapter

shall be construed liberally for

the accomplishment of the purposes

thereof."

So we have to look at that also, of

course, in terms of the “clearly erroneous”

test.

Now, I don't think that I will un-

duly prolong this decision by rehashing

the entire testimony as far as this mat-

ter is concerned. I looked over all of

the assignments of error that were raised

by counsel and this, in a sense, was why

I went back and reread all of the testi-

mony again from cover to cover. There

is some -- I don't know, something like

Appendix No. 2, p.19

400 pages of it. It winds up right on

page 400, because I thought I might be

missing something. I read it once and

looked again at the assignments of error,

and I can't quite reconcile myself to

the assignments of error as related to

the testimony that was produced at the

hearing. It just somehow or other didn't

match, so I went back and reread every-

thing as far as the testimony and exhi-

bits were concerned so that I would be

sure that I just wasn't missing some-

thing.

To summarize, as far as the factual

situations are concerned and the testi-

money is concerned in this matter, there

is no question in this Court's mind that

there was a job opening in the sheriff's

office at the time that this incident

occurred in June of 1974. Several things,

including exhibits, bear this out. First

off, there had been apparently previous

Appendix No. 2, p.20

discussion that the EEA and CETA funds

were going to become available. A

request undoubtedly had to be made to

the Employment Security Department for

them to receive the qualifications which

are contained in Exhibit C-13 to the ef-

fect that there was a counselor position .

open; the person to see was Mrs. Billings-

ley; the pay scale was set; the quali-

fications in terms of oe year's exper-

ience in counseling or social work; of

course, working with inmates in jail or

work release people. It indicates that

the work hours were flexible, and must

have been unemployed for at least 30

days and been a resident of Franklin

County. Those are the qualifications

for the job opening with a request to

send applicants to the Franklin County

Sheriff's Office where they were to

contact Ms. Billingsley.

I think it is further acknowledged

Appendix No. 2, p.21

by the sheriff that there was an open-

ing here and that he knew that this was

a position that was available.

Now, I recognize the argument that

we didn't know that the contract had

been signed. That is a ministerial act.

There is no question in my mind that it

was known that the funds were going to

be available through EEA and CETA; that

it was indicated to the Employment Secu-

rity Department, "Go ahead and process

it and send us applicants for the posi-

tion," and once it was indicated that

those funds were available, it was merely

a ministerial act of signing the con-

tract, and it just is unreasonable --

it is just unreasonable to conclude that

it was not known that there was an open-

ing and that we were going to fill it,

and I find further in Exhibit C-22 which

is the letter of July 11 of 1974, written

by the sheriff to the effect that, quot-

Appendix No. 2, p.22

ing, "When the funds became available for

this opening, I instructed the work re-

lease director to screen all male appli-

cants, leaving the final decision to

myself as to who would be hired. I at

this time still feel this position should

be filled by a male counselor." Now,

there is no question that that clearly

indicates that it was when the funds be-

came available that the Employment Se-

curity Department was advised under Ex-

hibit C-13 that there was a job order,

EEA job order here, and to please send

us applicants for this job.

So I find that there is actually

no question whatsoever that there was

a job opening.

There is also no question whatso-

ever that Ms. Sellers was referred to

the sheriff's office to apply for that

job. This is acknowledged in Exhibit

C-6 by the statement of Ms. Billingsley

Appendix No. 2, p.23

who acknowledged, and all the testimony

is uncontroverted on this, they both tes-

tified exactly to the same things, very,

very frankly and very truthfully, that a

call was made; that Ms. Sellers indicated

that she was available for that job and

wished -- for the counselor position,

and wished to come down and put in an

application; that she was told that the

position was for a male counselor; that

she could come down and put in an applica-

tion for other positions which might

open in the future in another position

of some sort. Nobody questions that Ms.

Billingsley, I mean -- excuse me, Ms.

Sellers was referred and that the call

was made to Ms. Billingsley. No question

that Ms. Sellers was told that the itob

was for a male position, and it really

is, I think, a little bit just kind of

argumentative to say that well, there

wasn't any discrimination because no

Appendix No. 2, p.24

application was actually filed. The

law doesn't require someone to do a

useless act, and there was no need --

there is no question in this case that

there was no need for Ms. Sellers to

go any further. She had been told, in

effect, and quoting from what Ms. Bill-

ingsley said, “Miss Sellers requested

an interview for this position, and I

informed her at that time that the need

was for a male counselor. I informed

Miss Sellers that she was welcome to

come to the office and fill out an ap-

plication which would be reviewed if an

application for probation subsidy pro-

gram was accepted by the state. I ex-

plained to her that at that time there

would be an opening for a female counselor

and her application would be reviewed.

Well, this indicates that there is

no need to go any further and come down

Appendix No. 2, p.25

and file an application for the parti-

cular job that was then open at that

time. What they were saying is that we

are not going to consider you for this

job, but you can put in an application

and if something comes up in the future,

why then we will perhaps consider you.

So the law doesn't require going

through the department of useless acti-

vities in coming down and actually fil-

ing an application for a job that she

had already been advised that she would

not receive consideration on, and when

you put this all together, there is no

question that Ms. Sellers was denied the

right to apply for the counseior's posi-

tion that was then open on the basis of

her sex because she was specifically

advised that it was a position for a

male counselor, and that her application

would not be accepted.

Now, I have to find that there is

Appendix No. 2, p.26

no question that this was a threshhold

refusal of the same nature that was con-

tained in the Arnett v. Seattle General

Hospital case, 65 W 2d 22, and in that

particular case, a black lady called in

on the telephone for a job in the dietary

department of the hospital, and she was

told to come in to apply for the job.

She went in and when they -- she came

face to face with the supervisor of the

dietary department of the hospital and

they saw that she was black, she was

told that there were no openings period

as far as the dietary department was con-

cerned. She went home and asked a friend

to call in respect to the job, and this

friend was told to come on in and file

an application.

Now, the actual ruling on the case

was whether or not the Superior Court

had correctly modified an order of the

Commission which said that the hospital

Appendix No. 2, p.27

had to hire her. The Superior Court

modified to just -- just modified the

tribunal's decision to just say, "Take

an application. You don't have to hire

her," but the Supreme Court reversed

that and said the Commission's ruling,

the tribunal's ruling was correct. They

did have to hire her if there was a po-

sition open.

But the case did recognize that

there was threshhold discrimination in

not accepting an application and allow-

ing the person to equally compete for

a job which was open, and they stated

it in this language, and I am quoting

directly from the case:

"In this case there is no dispute

in the facts and the conclusion

that an unfair practice was com-

mitted.”

So it is recognized there that

there is such a thing as a threshhold

refusal, and that it is an unfair prac-

tice.

Appendix No. 2, p.28

Now, in looking at this situation,

I don't think that in going back and re-

constructing everything that happened

here that this was a particularly inten-

tional -- well, the preference for the

male counselor was intentional. There

is no question about it, but the ques-

tion has been raised that there was a

contract with the Courts and so forth.

In looking over that situation, first,

I find that there wasn't any contract

with the Courts. It was a policy guide-

line type of thing. There was no con-

sideration or that type of thing that

creates a contract. There was a policy

set out by the Courts for the develop-

ment of a work release program, and it

stated in that policy that there should

be a director of the work release pro-

gram and a male and a female counselor.

Now, in the testimony of Judge Patrick

in connection with that particular langu-

Appendix No. 2, p.29

age, he said, well, when we were drawing

it up, we just didn't even think about

the discrimination at that point in time.

It hadn't occurred to us, and I think

that is what occurred in this situation

here. I don't think that it really sim-

ply occurred to the sheriff that the sta-

tutes, the laws on discrimination, and

the Equal Rights Amendment, were parti-

cularly going to apply. I don't think

that it was anything about that that

was in his mind.

However, we are in a position where

it does apply to everybody, including the

Courts. If the Courts did even try to

order that there be a male and female

counselor, they couldn't do it. It

would be an ultra vires act. It would

be contrary to law, and they could not

bind anybody by that.

It was simply an inadvertent situa-

tion, and I think that a lot of time and

Appendix No. 2, p.30

a lot of energy and a lot of money at

that juncture could have been averted

if a good hard look had just been taken

at the situation, a look at the statutes

and the constitution, and say at that

point, "Whoops, that is something I for-

got about, and let's accept the applica-

tion, and we will take other applications,

and when we get to the screening process,

we will just see who the best qualified

person is."

That, to my way of thinking, would

have been a far more reasonable solution

as far as this particular problem is

concerned. Even though there may be dis-

crimination or what appears to be dis-

crimination, you do have the situation

that there is an exception for a bona

fide occupational qualification, if there

is such a thing.

I felt that that argument was a

little bit on the frivolous side, quite

Appendix No. 2, p.3l

frankly. The case of Weeks v. Southern

Bell Telephone which is in 408 Fed 2d

228, tells us what a bona fide occupa-

tional qualification is, and quoting

from that case, they indicate:

"We conclude that the principle of

non-discrimination requires that

we hold that in order to rely on

the bona fide occupational quali-

fication exception an employer has

the burden of proving that he had

reasonable cause to believe, that

is, a factual basis for believing,

that all or substantially all

women would be unable to perform

safely and efficiently the duties

of the job involved."

Now, looking at that language, that

all or substantially all women would be

unable to perform safely and efficiently

the duties of the job involved, kind of

takes us right out of the realm of bona

fide occupational qualification in this

particular case. It is simply refuted

by the fact that Ms. Billingsley, the

lady who had been doing this job for

the past four years or so, past four or

five years, in everybody's terminology

Appendix No. 2, p.32

had done an excellent job. There is no

question that women are able to perform

safely and efficiently the duties of the

job involved. She has shown that by

her work experience in this particular

situation. Even in the testimony of

Sheriff Boyles, he had been surprised at

the qualifications that Ms. Sellers had

in respect to applying for this position

in view of the salary that was proposed

for it.

Now, I read with great particularity

the testimony of the various court person-

nel, members of the prosecutor's office

and the experts in the field that were

called, Mr. Pierson and Dr. Sherman and

so forth, there is no question, I don't

think, and I am not in disagreement with

this at all, that it would be helpful

to have both a male and female counselor.

It is a preference they all expressed,

that this is a preference for the good

Appendix No. 2, p.33

of the program, but preference is really

another word for discrimination. I pre-

fer if I go to a barber that I have a

white barber as opposed to a black bar-

ber. I prefer that if I am taking an

airline flight that I would have a stew-

ardess rather than a male steward on the

airplane. Those are discrimination sit-

uations, and as I say, it would be pref-

erable, and I agree with that concept

entirely, that it certainly is prefer-

able that there will be both a male and

female counselor. But again, preference

is just another word for discrimination.

I have the right to pick and choose as

opposed to the rights of the other per-

son to be treated equally in applying

for the position.

It is interesting to note what this

preference type of situation means. I

tried to look at this issue of sex dis-

crimination in terms of both the BFOQ,

Appendix No. 2, p.34

and what it means in terms of equal pro-

tection and discrimination on behalf of

sex and everything else, and I looked

through the cases of the State of Wash-

ington, and there are a number of then,

and I would just call them to your atten-

tion.

None of these were cited by counsel

in their briefs, but I would just call

them to your attention. Before the ERA

actually came in, the sex discrimination

cases were generally brought under the

First Amendment of the United States

Constitution and the Constitution of the

State of Washington, the Equal Protection

Clause, and there were three or four of

those cases.

One that I would call your atten-

tion to is the J.S.K. Enterprises v.

City of Lacey, in 6 Wash App 43. In

that particular case, they held it was

unconstitutional for the City of Lacey

Appendix No. 2, p.35

to pass an ordinance which would prohi-

bit persons from giving massages to

others of the opposite sex. They just

said, you are basing this strictly on

sex, and it is not something that one

or the other person cannot do, and there-

fore, that is unconstitutional.

We have the Darrin v. Gould case,

in 85 W 2d 859, where under the Equal

Protection Clause, they held it was un-

constitutional to deny the right to two

fairly large girls to try out for the

highschool football team. I think some

of you remember that particular situation.

The Hanson v. Hutt case, in 83 W 2nd

195, went a little further. There was

a statute there which barred women from

unemployment compensation benefits due

to pregnancy, and our Supreme Court held

that was unconstitutional as discriminat-

ing between women on the basis of sex.

It goes a long ways.

Appendix No. 2, p.36

Then the ERA came in, and under the

previous Equal Protection cases, you

first had to prove that the discrimination

on the basis of sex was a suspect class,

and you subjected it to strict scrutiny,

ard nad to find proof of a compelling

state interest. Well, then after the ERA

was passed, along comes Marchioro v

Chaney, in 90 W 2d 298, a relatively

recent case, and it tells us that the

Equal Rights Amendment now is too broad;

that we need not use this old approach

of first determining the discrimination,

sex discrimination as a suspect class,

subjecting it to strict scrutiny, and

then proving a compelling state interest.

There they just held that you have to,

without any question, give complete

equal opportunity under the Equal Rights

Amendment. In that particular case,

that was the one where the State Demo-

cratic Central Committee was involved

Appendix No. 2, p.37

because the statutes required that the

State Central Committee be 50 percent

men and 50 percent women, and that was

challenged on the basis that you are

not giving equal opportunity, but they

held that that statute was okay and was

constitutional because it did make it

a 50-50 situation.

But as I say, those are some other

cases that indicate the extent to which

these laws against discrimination and

Equal Rights Amendment are going to be

applied.

Now, in connection with this, and

I am going back to the bona fide occupa-

tional qualifications, and what I said,

that is totally refuted without any ques-

tion on that, and so the exception does

not apply in this particular situation.

Now, going to the question of the

decision of the tribunal as to the damages

here and everything else like that, the

Appendix No. 2, p.38

tribunal has the statutory authority to

determine and fashion the remedy as far

as this procedure is concerned, and it

doesn't violate any due process or any-

thing else in so doing.

Now, I would call your attention

to this Rody v Hollis case, in 81 W 2d

88, where the Supreme Court indicates

that:

"We are satisfied from the record

in this case and from the relevant

statutory provisions that the hear-

ing and appeal procedure for the

Human Richts Commission tribunal,

as detailed in..." that statute

". « « meets the requirements of

due process,"

and we can only conclude that the tribu-

nal's power to fix the amount of penalty

is consistent with due process. They

aJso held in that case that there was

no unconstitutional delegation of power

by the legislature to the Commission.

Now, in this particular situation,

I don't think that there is any particu-

lar question that there were funds avail-

Appendix No. 2, p.39

able for a year for this position. Ini-

tially the funding was for two and a

half months under the EEA contract, and

then the balance was to be picked up

under CETA because of the changeover

that was going to take place, and both

of those contracts were prepared, the

funds were available, and they wouldn't

have been filling a position for a two

month period if it wasn't readily appar-

ent that the funds were going to be

available for the whole year. So there

is no question, I don't think, that the

tribunal acted within their authority in

assessing the penaity for the year that

those contracts were to be in existence.

Now, the question came up in terms

‘of the duty to mitigate on the part of

Ms. Sellers in this particular connec-

tion, and I think that that duty to miti-

gate is somewhat covered in the Wilson v

Walla Walla case, at 12 Wash App 152.

Appendix No. 2, p.40

There was some argument made to the Court

that apparently Ms. Sellers had not sought

other employment particularly in what

was indicated to me was a "job hungry

market". I can't see how there would be

a job hungry market when she had been

unemployed and drawing unemployment com-

pensation which meant that she had to be

referred out to jobs where her qualifi-

cations would fit for a year's period

of time. If a person has particular qua-

lifications for a position but there are

no positions available, then we don't

have a situation where there is a job

hungry market. There was no requirement

on her part initially to mitigate, and

secondly, there was no showing that there

were jobs available as far as this parti-

cular matter is concerned.

So in summing this all up and going

back again to the actual criteria that

the Court had to look at in assessing

Appendix No. 2, p.4l

this, and this is binding, of course, as

far as the Court is concerned in what I

can do on this, I cannot substitute my

judgment for that of the tribunal. I

would have to find that the tribunal's

findings, conclusions and decisions were

affected by any other error of law, and

I don't find that. I find that they are

specifically within the statute and the

constitutional amendment, the Equal Rights

Amendment.

As far as whether the findings were

clearly erroneous, in view of the entire

record, and I have just covered the tes-

timony on that, and I don't find that

they were erroneous at all. I felt that

there was no other conclusion that reason-

ably could have been reached in this mat-

ter within the framework of the law. It

is consistent with the public policy con-

tained in the act of the legislature, and

of course, I cannot find that it was ar-

Appendix No. 2, p.42

bitrary and capricious because the case

tells us that if there is room for two

opinions, then it is not arbitrary and

capricious.

I therefore would have to, within

the law and the evidence as it was pre-

sented to the tribunal, would have

to find that this Court must affirm the

opinion and findings and order of the

tribunal of the Human Rights Commission

in this particular matter. It is affirmed

in all respects.

So I think then, counsel can prepare

the proper findings and conclusions as

far as this Court is concerned and an or-

der that would reflect that and present

that to the Court then for signature in

the matter.

MR. TYTLER: Yes. I will do so,

your Honor.

THE COURT: All right. Is there

any other matter to come before the Court?

Appendix No. 2, p.43

If not, we will stand adjourned.

(End of proceedings.)

STATE OF WASHINGTON )

couurr or yess }

I, Vickie Shepard, Official Court

Reporter for Franklin County Superior

Court, do hereby certify that I reported

the proceedings had in the matter of

Franklin County Sheriff's Office v.

Betty P. Sellers and Washington State

Human Rights Commission v. Franklin

County Sheriff Richard E. Boyles, No.

23165, before the HONORABLE WALTER A.

STAUFFACHER, visiting Superior Court

Judge from the County of Yakima, on

October 6, 1978; that the same was re-

duced to typewritten form by me, and

that the attached 28 pages represent a

full, true and accurate transcript

of my Stenctype notes.

s/Vickie Shepard

Vickie ean

DATED: Official Court Reporter

Appendix No. 2, p.44

IN THE COURT OF APPEALS OF THE STATE OF

WASHINGTON

FRANKLIN COUNTY SHIRIFF'S)

OFFICE, ) NO. 3254-III-0

Appellant, )

)

Vv. ) Division Three

) Panel Two

BETTY P. SELLERS )

complainant, WASHINGTON ) Mg oO ie

STATE HUMAN RIGHTS ) s

COMMISSION, )

) Piled Dec. 9,

Respondent. ) 19380

GREEN, C.J.--Franklin County ap-

peals a judgment awarding damages for dis -

criminatory employment practices, in vio-

lation of . -W 49.60.1830. We reverse.

On June 21, 1974, Betty Sellers,

who was working toward a master's degree

in guidance and counseling, learned there

was an opening for a work-release counse-

lor in the Franklin County Sheriff's of-

fice. She telephoned the sheriff's of-

fice and informed Shirley Billingsley,

who was the director of the work-release

program and the only counselor, that she

Appendix No. 2, p.l

wanted to apply for the position. Mrs.

Billingsley confirmed that a counselor

position was available, but added that

the present need was for a male counselor.

Mrs. Billingsley suggested she fill out

an application in the event a future posi-

tion became available. Instead of making

an application, Mrs. Sellers filed a com-

plaint with the Washington State Human

Rights Commission, alleging discrimina-

tion in employment based on sex. A tri-

bunal of the Commission found that limit-

ing the available counselor position to

a male was discriminatory and was not a

bona fide occupational qualification

(BFOO) exempt from the Act. Mrs. Sellers

was awardec, in addition to other relief,

$7200 representing the amount she would

have received had she been employed by

the County. The County appealed the Com-

mission's order and the Superior Court

Appendix No. 3, p.2

affirmed. This appeal followed.

The County contends the tribunal and

then the court erred in finding (1) there

was no evidence that women as a class

could not perform the functions of a work-

release counselor, and (2) employment of

a male counselor was not necessary for

the successful implementation of the

county's work-release program. Since the

resolution of these issues is a mixed

question of law and fact, we will exercise

our inherent and statutory authority to

make a de novo review of the record inde-

pendent of the Commission's decision. RCW

34.03.130(6) (a); The Daily Herald Co. v.

The Department of Employment Security,

91 Wn.2d 559, 588 P.2d 1157 (1979).

Our State law against discrimination

is found in RCW 49.60 and is patterned

after Title VII of the United States Civil

Rights Act of 1964, 42 U.S.C. 2000e, et

seq. The federal Act and the decisions

Appendix No. 3, p.3

construing it are persuasive authority for

the construction of our State Act. RCW

49.60; Ellingson v. Spokane Mortagage Co.,

19 Wn.App. 48, 54, n.5, 573 P.2d 389

(1978).

The BFOO exemption is found in RCW

49.60.180:

It is an unfair practice for any em-

ployer:

(1) To refuse to hire any person

because of such person's .. .sex

» « « unless based upon a bona fide

occupational qualification [BDFOO)

(Italics ours.) The Act does not define

"“BFOQ". However, the Human Rights Commis-

sion, in WAC 162-16-020(2), has recog-

leurther, WAC 162-30-010 states:

"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 generat iy follow interpretations of

the sex discrimination provisions of

Title VII of the United States Civil

Rights Act of 1964, 42 U.S.C. sec. 2000e

and following, where the federal act is

comparable to the state act.”

see Lindsay v. Seattle, 86 Wn.2d 698,

’ . ).

Appendix No. 3, p.4

nized that the BFOQ exemption may apply:

(a) Where a person's ... S@X. « «+

will be essential to, or will con-

tribute to, the accomplishment of

the purposes for which the person

is hired.

By comparison, the federal Act, in 42 U.S.

C. sec. 2000e-2(e) (1976), defines BFOQ

as an employment practice that is

reasonably necessary to the normal

operation of that particular busi-

ness or enterprise...

It is evident that the Commission defines

BFOQ as something less than "necessary"

but more than merely “contributing to”

the purpose for which a person is hired.

Since the federal Act was used as a guide

in writing our State law, we conclude the

two definitions are essentially synony-

mous,

The issue presented, then, is whether

limiting the available counselor position

to male applicants was "reasonably neces-

sary" to the successful operation of the

Appendix No. 3, p.5

work-release program in Franklin County.

The County has the burden of proving the

exemption. Rose v. Hanna Mining Co., 94

Wn.2d 307, 311-13, 616 P.2d 1229 (1980).

Mrs. Billingsley, director of the

Franklin County Work Release program, tes-

tified that she was employed as a counse-

lor in the sheriff's office in 1972. The

purpose of the counseling position was to

help inmates decide what kind of jobs

or educational training was needed to assi-

milate them into the community. To this

end, she counseled the inmates, arranged

for employment interviews or training pro-

grams, and transported the female inmates

for the purpose of completing those ar-

rangements. When further mental health

counseling was needed, or medical or den-

tal care was required, she arranged for

an appointment and then transported the

female inmates to the appropriate place.

Appendix No. 3, p.6

As part of her duties, she often searched

the female inmates for contraband upon

their return from work.

When Mrs. Billingsley was first em-

ployed, she worked with a male counselor.

He performed the same duties with respect

to the male inmates as she performed for

the female inmates. In 1974, the male

counselor departed and Mrs. Billingsley

became the director and only counselor.

She had to refer males to the mental

health center for counseling when her

sex prevented her from establishing an

adequate rapport with them. Further, she

could not search the male inmates, trans-

port them to interviews, the mental health

center, the doctor or dentist. As a re-

sult, the male jailers and others were

required to perform many of the functions

of the male counselor. She testified that

because of the workload, she could have

used the help of either a man or a woman

Appendix No. 3, p.7

counselor; however, a male counselor

would have been more beneficial to her

and to the needs of the inmates.

Charles Pierson, Jr., who was respon-

sible for the Columbia Mental Health Cen-

ter's jail services counseling project,

confirmed the need for a male counselor

at the Franklin County jail. The Center,

which was not a county organization,

offered to assist the sheriff's office

and, consequently, Mr. Pierson counseled

Franklin County inmates during 1975-77.

Because Mrs. Billingsley was the only

counselor, Mr. Pierson counseled many

male inmates for work-release purposes.

He explained the reason for his involve-

ment:

There was a good number of clients,

and Shirley [Billingsley] needed

my support or the other male coun-

selors’ support that was available

at that time in order to work with

these individuals. Many of the

people in jail are very much un-

skilled as relating to pecple in

Appendix No. 3, p.8

general, and many of those manipu-

lative and concealing when they deal

with a woman. So it was necessary

in many cases, for Shirley to re-

fer mostly males to myself...

(Italics ours.) He stated that the es-

tablishment of a relationship with an

inmate is a crucial part of the counsel-

ing process

- « the actual process is one of

establishment of a relationship with

an individual. That's the required

beginning, unless you can interact

with a person... you can't pos-

sibly hope to help him change.

Once that relationship is estab-

lished, then, you can work at a

process of confronting an indivi-

dual with his maladaptive or un-

successful or illegal behavior.

That, then, gives you the end and

the opportunity to work towards

the behavior chanae in the person.

He further testified that when "a person

is not revealing all that's going on with

them [sic] and is not dealing with the

issues that are important to them [sic]:,

the person may not be relating to the

counselor because of his or her sex. He

concluded:

Appendix No. 3, p.9

In some cases, it's possible for

a female to relate to some female([s]

and impossible for a female to re-

late to some male[s], just as I

cannot be all things to all clients.

There are some clients that I can't

relate to . . .because of my sex.

After noting that the inmate population

was 90 percent male and 10 percent fe-

male, Mr. Pierson commented that "in

some ways it is more desirable to have a

male than a female running the program,”

When asked upon cross-examination

whether in his opinion a male was only

preferable to the program, Mr. Pierson

testified an additional female could not

service the program as effectively as

amale. The Center's jail services pro-

ject always provided for female and male

staff and he believed the dynamics of

the Center's counseling program were the

same as the work-release program. In

his opinion, to hire an additional fe-

male counselor in the sheriff's work-

Appendix No. 3, p.10

release department would create a redun-

dancy.

Dr. William D. Sherman, a physician

and vsychiatrist at the Columbia Mental

Health Center, who was familiar with the

Franklin County work-release program,

supported the views expressed by Ir. Pier-

son. He expressed a very strong opinion

supporting the validity of the sheriff's

reauest for a male counselor to balance

Mrs. Billingsley. He testified:

There are profound advantages to

having a member of ... .each sex

on a staff of this type. There

are several reasons for this... .

Human beings relate differently

to males and females, sometimes

for better and sometimes for worse

+ « « In the course of growing

up many of us relate much better

to one sex than the other in a

counseling way.

- « « I think it is necessary to

have a member of both sexes avail-

able because the work release pro-

gram depends heavily on the counsel-

ing that goes on and the guidance

that coes on from the staff to the

people in the program. Many people

grow up without an adequate male

Appendix No. 3, p.ll

or female model of what it's like

to be a competent and happy person

of their own sex making out in the

world, and I think that idea of a

staff should be provided and model-

ed to both male and female people

that are in the work release pro-

gram. This is a part of the coun-

seling help that can go on ina

program like this. ...

It's my opinion that the program

would be seriously impaire

both counselors were of the same

sex no matter which sex. The evi-

dence of this is drawn of litera-

ture . . . people are helping

others to expand their lives. Get

rehabilitated. The program is

better with mixed sex staffs...

It is true of the group therapy

groups that they do better if the

two therapists are of opposite

sex. The programs do better with

mixed staff on the counseling,

mixed sex. ...

I would strongly support that both

sex be represented and the staff

not consist of either two females

or two males.

(Italics ours.) It was his view that if

the only qualified applicant was a woman,

only temporary arrangements should be

made and the position should be left

open until a qualified male became avail-

Appendix No. 3, p.12

able. He stated, "I would certainly

not want to get locked into a position

with two members of the same sex inde-

finitely running a program like this."

He conceded that Shirley Billingsley had

operated a good procram during the time

she had been alone. However, he observed

". »« ethe program has been hurt. I feel,

the program could have been more success-

ful with a competent male working with

Mrs. Billingsley .. . over the last

three years."

Lane Merryman was the supervisor

for the Tri-Cities work/training-release

program for the State of Washington in

Pasco. He generally echoed the views of

Mr. Pierson and Dr. Sherman. He believed

a male and female counselor would make

the work-release program more successful.

Ray Messegee, director the the Adult

Correction Division for the Department of

Appendix No. 3, p.13

Social and Health Services, testified on

behalf of Mrs. Sellers. In his opinion,

there was no scientific way to evaluate

the extent to which one sex or the other

contributes to a successful counseling

relationship. Consequently, he concluded

that sex is not a significant factor in

the counseling situation: it is merely

one of many factors. Notwithstanding, he

testified that in hiring counselors in

his department, he instructed his staff

to make every attempt to equalize the

numbers of each sex. As a result, the

number of males and females were about

ecual and either sex was available for

a counseling assignment as needed.

Sheriff Boyles expressed his needs

to the Human Rights Commission in a let-

ter dated July ll, 1974:

Just recently E.E.A. provided

funds enabling this department

to hire one or more loyee

for this [work release] section.

Appendix No. 3, p.14

It is my feeling that this employee

should be a male since there are

times that a male cannot communi-

cate with a person of the oppo-

site gender, and that the male pri-

soners on work release are much

greater than the amount of fe-

males we have on work release.

When the funds became available

for this opening, I instructed

the Work Release Director to

screen all male applicants leav-

ing the final decision to myself

as to who would be hired. I, at

this time, still feel this posi-

tion should be filled by a male

counselor.

These needs are also reflected in the

statement of purposes and objectives of

the work-release program, approved by

three Superior Court judges and the work-

release director. It states: "The staff

is comprised of the Program Director and

two counselors, a male and female."*

2rhe program description indicates the

female would perform secretarial duties

in addition to counseling. The addition

of secretarial duties is not a problem

here. As the program developed, the fe-

male became the Program Director and the

sole counselor. The facts do not show,

nor do the parties argue, that the em-

ployment practices were discriminatory

on this basis.

Appendix No. 3, p.15

Further, the need for a sexual balance

in the staff was supported by Deputy

Prosecuting Attorney Lawrence Moore who

worked closely with the program.

Mrs. Sellers contends this evidence

did not establish that restricting the

position to a male counselor was a BFOO,

but shows only that hiring a male counse-

lor was a preference or convenience. She

argues the County must prove that alli

or substantially all women would be unable

to efficiently perform the counselor du-

ties, Weeks v. Southern Bell Tel. & Tel.

Co., 408 F.24 228, 235 (Sth Cir. 1969),°

and the essence of the operation would be

undermined by hiring a woman. Diaz v.

Pan American World Airways, Inc., 442 P.2d

385, 388 (5th Cir.), cert. denied, 404 U.S.

950, 30 L.Ed.2d 267, 92 S.Ct. 275 (1971).

Joe. Rose v. Hanna Mining Co., 94 Wn.2d

307, 3SII-1I3, 616 P.2d 735 T1580) (epilep-

tic handicap).

Appendix No. 3, p.16

We agree with the general rules set forth

in these cases. However, we find them to

be factually distinguishable because they

involve restrictions limiting a job cate-

gory to one sex or class exclusively.‘

Here, the County did not limit the two

counselor positions to one sex, but

sought to achieve a balance by providing

‘weeks v. Southern Bell Tel. & Tel. Co.,

supra, involved a restriction due to phy-

Sical requirements of a job, and Diaz

v. Pan American World Airways, Inc.

supra nvolv a restriction emale

Flisht cabin attendants. See ai= giso, Rosen-

feld v. Southern Pacific Co.,

aT ¥ 3a

1219 (Sth Cir. 1971) (physical require-

ments); LeBlanc v. Southern Bell Tel. &

Tel. Co., 333 F. Supp. 602 (D.C. La. 19579)

Timi tation upon hours women could work);

Sprogis v. United Airlines, Inc., 444 F.2d

List. t. denied, 404 U. Ss. S51, 30 L.

cert: . den

Ed.24 343, 92 S.Ct. 536 (1971) (limita-

tions to unmarried females or termination

of pregnant females); Dothard v. Rawlin-

son, 433 U.S. 321, 53

Ct. 2720 (1977) (restriction to male pri-

son security guards). Similar restric-

tions to job categories may be found in

ination, sec. of at toa (1872).

Appendix No. 3, p.17

both a female and male counselor to bet-

ter meet the psychological needs of the

inmates. Consequently, the cases are

not helpful. However, even if those

cases were applicable, we are convinced

the restriction imposed here is within

the BFOQ exception as defined by Wecks

and Diaz.

The court in Diaz, supra, at 389,

observed that the Equal Employment Oppor-

tunity Commission's guidelines, 29 C.F.R.

sec. 1604.1(iii) (1979), state the refu-

sal to hire an individual because of

the preference of co-workers, the employer

or clients is not a BFOQ. However, the

court also stated that a preference would

be valid if a company would be unable to

perform its primary function or the ser-

vice it offers unless the limitation is

imposed.

Here, the essence or purpose of

Appendix No. 3, p.18

the counseling position is rehabilitation

of people. It is important that the

counselor he able to relate to an inmate

in such a way that the inmate will freely

and openly discuss employment interests

and be susceptible to motivation toward

obtaining or training for a job and then

succeeding in the chosen area. The need

for a male-female balance in the two

counseling positions was strongly con-

firmed by the counselors and the psychia-

trist who testified for the County. Fven

Mrs. Billingsley's testimony showed that

she believed a male counselor was reason-

ably necessary to fulfill the primary

purpose of the program. Although there

is testimony that Mrs. Billingsley was

doing an excellent job as a counselor,

she testified that because of her sex

she had to refer male inmates to the Men-

tal Health Center for work release coun-

Appendix No. 3, p.19

seling. Moreover, she had to enlist the

aid of others not involved in the program

to perform her other duties. Consequent-

ly, Mrs. Billingsley was unable to per-

form the primary functions recuired by

the program in providing counseling, trans-

portation and security for all the inmates.

Since the program provided for only two

counselors, the addition of another fe-

male counselor would perpetuate these de-

ficiencies. An all-female counseling

staff could not efficiently perform the

duties and would thus undermine the es-

sence of the ,*ogram. See, City of Phila-

delphia v. Pennsylvania Human Rights Com-

mission, 7 Pa. Commonwealth 500, 300 A.2d

97 (1973) (juvenile detention facility

supervisors).

The Human Rights Commission, in WAC

162-16-020, while recognizing that the

legislature has not defined BFOQ, stated:

Appendix No. 3, p.20

"Its meaning must be worked out through

experience in administerinc the law and

with reference to the general purposes

of the law against discrimination and

other expressions of public policy."

There is a strong public interest in re-

habilitating people so they may be con-

structive citizens. Every effort should

be made to achieve this goal. Consider-

ing the entire record, we find that pro-

viding a sexual balance of both a female

and a male counselor is not only prefer-

able, but is reasonably necessary to the

rehabilitation of the Franklin County in-

mates and the success of the work-release

program. In this context the record sup-

ports the conclusion that all or substan-

tially all women could not fulfill the

purposes of the program. Therefore,

limiting the second position to a male

counselor is a bona fide occupational

Appendix No. 3, p.2l

qualification exempt from the Act.

Reversed.

s/Green, C.J.

WE CONCUR:

s/ Roe, J.

Appendix No. 3, p.22

No. 3254-III-0

ROE, J. (concurring specially)--I

concur in the analysis and result of

Judge Green's opinion.

I state, as an additional reason

why this case should be reversed, as

follows:

Assuming Betty Sellers established

a prima facie case of discrimination

which does not come within the BFOO ex-

ception, I would find it necessary to

address the issue of damages. The trial

court and the tribunal awarded Sellers

$7,200 in back pay representing the wages

she would have earned from June 21, 1974,

through June 18, 1975. Back pay is a

well-recognized remedy in order to "make

whole" the person who has suffered dis-

crimination. Generally, good faith or

lack of intent is no defense. Albermarle

Paper Co. v. Moody, 422 U.S. 405, 45 L.Ed.

Appendix No. 3, p.23

2d 280, 95 S.Ct. 2362 (1975). Neverthe-

less, under the Civil Richts Act of 1964,

tit. VII, an employer does have a defense

from liability if he relied on any written

interpretation or opinion of the Commis-

Sion. 42 U.S.C., sec. 2000e-12(b) (1974),

reads in part:

In any action or proceeding based

on any alleged unlawful employment

practice, no person shall be sub-

ject to any liability or punish-

ment for or on account of (1) the

commission by such person of an

unlawful employment practice if he

pleads and proves that the act or

omission complained of was in good

faith, in conformity with, and in

reliance on any written interpre-

tation or opinion of the Commis-

Sion, « « «

(Italics mine.) See Albemarle Paper Co.

v. Moody, supra at 95 S.Ct. 2374, n.17.

I note that under our state statute

or regulations, no immunity from liabi-

lity exists. However, I also observe

that the Human Rights Commission does

absolve one from liability for reliance

Appendix No. 3, p.24

on the opinions of the executive secre-

tary of the Human Richts Commission and

the declaratory rulings issued by the

commission. WAC 162-04-070(5); WAC

162-08-700(8). I believe such reliance

should also extend to the commission's

regulations which are published and on

which an individual has a right to rely.

See Rosenfeld v. Southern Pac. Co., 519

F.2d 527 (9th Cir. 1975); Schaeffer v.

San Diego Yellow Cabs, Inc., 462 F.2d

1002 (9th Cir. 1972); Rosenfeld v. South-

ern Pac. Co., 444 F.2d 1219 (9th Cir.

1971); Stryker v. Recister Publishing Co.,

423 F. Supp. 476 (D. Conn. 1976); LeBlanc

v. Southern Bell Telephone and Telegraph

Co., 333 F. Supp. 602 (F.D. La. 1971),

aff'd 460 F.2d 1228 (Sth Cir. 1972), cert.

denied 409 U.S. 990. Even if Betty Sel-

lers had proved sex discrimination, the

damage portion of the judgment against

Appendix No. 3, p.25

Franklin County would be inappropriate.

Because Franklin County believed a male

would contribute to the accomplishment

of its counseling program and hiring a

male would come within the existing BFOQ

exception, no back pay award should be

granted under any disposition of this

case.

s/Roe, J.

Appendix No. 3, p.26

Franklin County v. Sellers (Dissent)

No. 3254-III-0

MUNSON, J. (Dissenting)--I believe

the Franklin County Sheriff's Office has

failed to meet its burden of factually

proving it was reasonably necessary to

hire a man to fill the position for which

Betty Sellers applied. Furthermore, the

majority incorrectly applies the law de-

fining a bona fide occupational qualifi-

cation (BFOQ) to this fact situation.

By discussing a BFOQ defense, the

majority admits discrimination occurred.

A BFOQ can exist only to justify an act

of discrimination. Betty Sellers incuired

about the position and was told that no

women were to be hired; the fact that she

took no further steps to apply is irrele-

vant. Arnett v. Seattle General Hospital,

65 Wn.2d 22, 395 P.2d 503 (1964); see also

Pittsburgh Press Co. v. Pittsburgh Comm'n

Appendix No. 3, p.27

on Human Relations, 412 U.S. 376, 37 L.Ed.

2d 699, 93 S.Ct. 2553 (1973); Hailes v.

United Air Lines, 464 F.2d 1006, 1008

(Sth Cir. 1972); Gillin v. Federal Paper

Beard Co., 479 F.2d 97 (2nd Cir. 1973).

Sellers has made a prima facie case. The

burden has shifted to the county to show

a legitimate, nondiscriminatory reason

for rejecting her. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 36 L.Ed.2d 668,

93 S.Ct. 1817 (1973); Rose v. Hanna Mining

Co., 94 Wn.2d 307, 311-13, 616 P.2d 1229

(1980).

The first issue upon which I differ

from the majority is the nature of the job

for which Sellers applied. The majority

has selected testimony which supports its

view. There is other evidence which sup-

ports the contrary view, adopted by the

trier of fact. The statement of purposes

and objectives of the work-release program,

Appendix No. 3, p.28

approved by the superior court judges

and the work-release director stated:

The staff function is as follows:

l. Screen and select participants.

2. Counsel and provide assistance

from community resources in s i-

fic fields of mental hygiene Preat-

ment.

3. Determine means for educational

and occupational training.

4. Develop and maintain records and

provide participant progress reports.

5. Establish participant's finan-

cial program and maintain financial

records concerning earnings and dis-

bursements.

6. Coordinate and establish commu-

nication lines between all depart-

ments associated with the program.

7. Promote community understand-

ing and acceptance.

(Italics mine.) -. The document also states

the objectives of the work-release program:

1. To provide counseling and train-

ing to promote understanding and moti-

vation for the potential fulfillment

of healthy attitudes, and

2. To implement employment for econ-

omic responsibility, and to meet fi-

nancial obligations.

The primary purpose of the aforemen-

tioned objectives, is to help pre-

pare the participant to live in

society with the respect and secu-

rity for self, family and community.

Appendix No. 3, p.29

Finally, under the section civing a pro-

gram description for staff and function,

the document stated:

The staff is comprised of the Pro-

gram Director and two counselors, a

male and a female. The female

counselor will be responsible for

secretarial duties in addition to

her counseling activity. ...

Shirley Billingsley, the current di-

rector of the work-release program in

Franklin County, indicated the job in-

volved “job counseling." She testified

she performed the bookkeeping and secre-

tarial duties for the program, provided

transportation and occasionally searched

returning program members. Billingsley

testified she did not do mental health

counseling; when that was required she

referred men and women to outside mental

health counselors such as Chuck Pierson,

who argued strongly for a male counselor.

lpierson apparently would not have

hired a woman under any circumstances.

When asked if he would hire a more quali-

Appendix No. 3, p.30

The majority isolates three areas

where, because of the predominantly male

prison population, a female counselor

would be unable to perform the job. Two

of these, the need to transport prison-

ers and perform strip searches, are insig-

nificant” aspects of the job and at best

inconvenience a female counselor. The

real thrust of the majority opinion is

that the type of counseling involved re-

quires a male rather than a female be-

cause some male inmates do not "relate

well" to female counselors. This was

fied woman, he said "skills are something

that we can train people to acquire. We

can't get people to change their sex.”

Transcript of H.R.C. hearing p. 235

lines 15-17.

Nothing in the job description sig-

nified searching prisoners is within the

classification of this position. Query:

If a prisoner is unsafe to transport, is

the prisoner safe enough to be in a work-

release program?

Appendix No. 3, p.3l

primarily the testimony of Mr. Pierson,

in whose opinion some 10 percent of the

male population of the prison might not

“like” a female counselor. Pierson sug-

gested the program worked less well hav-

ing only a female counselor. But how

much so--how far short it fell of its

basic goal--he did not say. Nor does

he say that those who cannot relate to

a counselor are entirely deprived of

benefit--he says only that it is easier

to help these people, without sex bar-

riers being a problem. Contraey to Pier-

son's testimony, is that of Ray Messegee,

director of the Adult Corrections Divi-

sion of the Department of Social and

Health Services. He feels, based upon

research and 18 years of experience, that

sex make absolutely no difference in a

counseling setting. Although the coun-

selors hired for his programs have tended,

4

Appendix No. 3, p.32

overall, to average half male and half

female, from the becinning his program

hired work-release counselors without re-

gard to sex. In fact, in one work-

release setting--the city jail in Pasco--

there were eight female counselors and

no males at all, to deal with an all-male

inmate population.

Lane Merryman, supervisor of the

Pasco work-release program, said he felt

a male would be helpful to the program,

but concluded he would certainly hire a

woman if there were no equally qualified

men. And perhaps the most damaging of

all is the testimony of Sheriff Boyles

of Franklin County. Boyles is ultimately

responsible for hiring counselors in the

work-release program in Franklin County.

Although he wanted to hire a man, Boyles

admits Shirley Billingsley has run the

program, by herself, for 4 years and has

Appendix No. 3, p.33

done an excellent job. Boyles said that if

male applicants for the other position

had been less qualified, he might well

have hired Sellers. In fact, he said he

might have hired her if he had only seen

her application, because he never expected

to attract anyone, male or female, with

her qualifications.

There is a considerable difference

of opinion as to the desirability and

necessity of having a male counselor to

complement Shirley Billingsley. I sug-

gest the original trier of fact was best

suited to make this determination. The

Human Rights Commission found against the

county; we should give its decision re-

spect, as we would any trier of fact.

The majority states that as a prac-

tical matter the definition of a BFOQ

under WAC 162-16-020(2) (a) is equivalent

to 42 U.S.C. sec. 2000e-2(e) (1976).

However, the logical result of conclud-

Appendix No. 3, p.34

ing the two definitions are equivalent

is that the federal tests for a BFOQ

should control exclusively. The majori-

ty uses a somewhat softer interpretation,

somewhere between “strict necessity" and

"contributing to,” but leaning toward

"contribute to." Nonetheless, the lan-

guage in WAC 162-16-020(2) (a) is written

in the alternative, "essential to or

will contribute to." This language is

far broader than permitted under the

federal definition of a BFOQ. Because

of the parallel nature of the state and

federal statutes, definitions under the

state statute, RCW 49.60, are controlled

by the breadth of the United States Civil

Rights Act of 1964, tit. VII, 42 U.S.C.

sec. 2000e (1976). Rose v. Hanna Mining

Co., supra; Ellingson v. Spokane Mort-

gage Co., 19 Wn. App. 48, 54, n.5, 573

P.2d 389 (1978). See also WAC 162-30-010.

The Human Rights Commission relied exclu-

Appendix No. 3, p.35

Sively upon federal law. Furthermore,

the commission made no attempt to defend

its reculation defining sex dixcrimina-

tion. I would hold WAC 162-16-020(2) (a)

is overbroad and should be changed to re-

flect the current status of federal law;

state laws cannot stand if they impede,

burden or frustrate the purpose of tit.

VII. Lindsay v. Seattle, 86 Wn.2d 698,

708, 548 P.2d 320 (1976), cert. denied

429 U.S. 886.

The majority distinguishes the fed-

eral test for BFOO in Weeks v. Southern

Bell Tel. & Tel. Co., 408 F.2d 228, 235

(Sth Cir. 1969) (weight lifting limita-

tions) and Diaz v. Pan American World

Airways, Inc., 442 F.2d 385, 388 (5th

Cir.) cert. denied 404 U.S. 950, 30 L.Ed.

24 267, 92 S.Ct. 275 (1971) (rejecting

argument that all-female airplane cabin

attendants better “reassured” passengers

and demonstrably improved average per-

Appendix No. 3, p.36

formance), because those cases dealt with

restrictions limiting a job category ex-

clusively to one sex, whereas Franklin

County sought a male-female balance in

the two positions. If one assumes that

sexual balance of any two positions is

desirable, hiring only a man to fill the

second position when the first was filled

by a woman is logically necessary. But

making that initial assumption begs the

question. The decision to have sexual

balance in any two positions is itself

a discriminatory decision, subject to

scrutiny under Weeks and Diaz.

Therefore, the better analysis of

the action of Franklin County is whether

under Weeks v. Southern Bell Tel. & Tel.

Co., supra all, or substantially all,

two-woman counseling teams would be un-

able to perform their required functions;

or whether under Diaz v. Pan American

Appendix No. 3, p.37

World Airways, Inc., supra at 388, the

essence of the operation would be under-

mined hiring all-female counselors. See

also Dothard v. Rawlinson, 433 U.S. 321,

53 L.Ed.2d 786, 97 S.Ct. 2720 (1977);

Rose v. Hanna Mining Co., supra.

The majority opinion speaks only to

Equal Opportunity Commission Guidelines

found at 29 C.F.R. sec. 1604.2(a) (iii)

(1972), which deal with preferences of

clients. It argues the preference of

clients in this case is so important as

to make the function of the work-release

program impossible without mixed-sex

counseling. This relates most closely

to the “essential function" test of Diaz.

Yet, as noted, at best only 10 percent

of male inmates are unable to relate to

counselors; and the county was unable to

provide testimony that indicated the es-

sential purpose of the program would fail

Appendix No. 3, p. 38

because of this; or that work-release par-

ticipants were unable to find jobs.

The fact that Sheriff Boyles would

have hired Sellers if no equally quali-

fied male were available recognizes the

program could be carried on with only

female counselors. The essential func-

tions of the program were to find jobs

and counsel inmates in dealing with the

real world. No testimony suggested the

program was failing of this purpose for

want of a male counselor. The testimony

suggested the program might run somewhat

better with a male counselor--that it

would be more convenient to the prison

staff--not that it failed.

Therefore, under the narrow view

imposed by federal law, I would find WAC

162-16-020(2) (a) invalid and I would find

no BFOQ.

Notwithstanding, I would be inclined

Appendix No. 3, p.39

to apply this decision prospectively. As

noted in Judge Roe's concurring opinion,

the county had the right to rely upon

what I consider an invalid regulation. I

would award Sellers nominal damages and

modify the other sanctions imposed by

the Human Rights Commission--that Sellers

is to be given for 1 year (rather than

2 years as awarded by the commission) a

first option on any job opening in Frank-

lin County for which she is qualified.

Finally, the county, and amicus,

argue that the Human Rights Commission is

an illegal tribunal. This argument was

rejected in Rody v. Hollis, 81 Wn.2d 88,

500 P.2d 97 (1972).

Based on the foregoing, I would af-

firm the actions of the Human Richts Com-

mission except as to damages.

s/ Munson, J.

Appendix No. 3, p.40

IN THE SUPREMF COURT OF THE STATE

OF WASHINGTON

FRANKLIN COUNTY SHFRIFF'S)

OFFICL, ) No. 47€13-€

)

Petitioner, )

)

Vv. ) [IN BANC

)

BrTTy P. SELLERS, )

)

Complainant-Defendant, ) 97 wn.2d 317,

) 646 P.2d 113

and )

)

WASHINGTON STATE FUMAN )

RICHTS COMMISSION, )

)

Respondent/Cross- ) Filed May

Petitioner. ) 13, 1982.

DIMMICK, J. -- This is a review of a

contested case conducted by a hearing

tribunal of the Washington State Human

Rights Commission (Commission). The tri-

bunal awarded damages and other equitable

relief to Betty Sellers on a sex discrim-

ination claim brought against the Frank-

lin County Sheriff's Office (County).

Appendix No. 4, p.l

The trial court affirmed the find-

ines, conclusions, and damages awarded by

the tribunal. The Court of Appeals re-

versed in a 2-to-l decision. This court

granted both Sellers' and Franklin County's

petitions for review. We reversed the

Court of Appeals and uphold the trial

court's affirmance of the hearing tribu-

nal.

The facts, as determined from the

record before us, are as follows:

In 1972, Franklin County formalized

a work release program for county jail in-

mates. The draft called for a staff of

a “Program Director and two counselors, a

male and a female." County officials tes-

tified that in promulgating the regula-

tions no thought was given to the fact

that designating one counselor of each sex

might be illegal employment discrimina-

Appendix No. 4, p.2

tion.

In June 1974, Betty Sellers called

the Franklin County Sheriff's Office to

ask about the position for second counse-

lor which she learned was open through

the unemployment office. She was told by

Shirley Billingsley, the woman who had

been in the other counseling position for

4 years, that they would only consider a

male counselor for the open position.

Sellers filed a complaint with the Human

Rights Commission.

The tribunal found that since Bill-

ingsley had for 4 years performed excel-

lently as counselor in the program, the

County had failed in its burden to prove

that women as a class cannot perform the

functions of a counselor in the work re-

lease program. The tribunal also found

that the employment of a male counselor

Appendix No. 4, p.3

is not necessary for the successful imple-

mentation of the County's work release pro-

qram, but is merelv a preference or con-

venience.

The trial court's review was conduct-

ed on the record of the hearing tribunal

and the trial court did not itself take

evidence or try any issues of fact.

The court upheld the tribunal on the basis

that there was no error of law, the find-

ines were not clearly erroneous and the

formation and actions of the hearing tri-

bunal were not in excess of constitutional

or statutory authority. (See RCW

Appendix No. 4, p.4

34.04.130(6).)

The Court of Appeals viewed the is-

sues resolved by the tribunal as mixed

guestions of law and fact and determined

that it should exercise its “inherent and

statutory authority to make a de novo re-

view of the record independent of the Conm-

mission's decision." Franklin County

Sheriff's Office v. Sellers, 27 Wn.App.

797, 799, 621 P.2d 751 (1980). The ma-

jority then proceeded to reweigh the evi-

dence, making findings of fact that dif-

fered from the findings of the tribunal.

The dissent found still different facts.

I

This gives rise to the first issue

in this case. What is the scope of re-

view of administrative action in contested

cases?

The review procedures set forth in

Appendix No. 4, p.5

the substantive act, Law Against Discrim-

ination, RCW 49.60 remain substantially

the same as when first enacted in 1949,

Laws of 1949, ch. 183, Sec. 9. The pro-

cedures provided by that act for the most

part merely clarii, the scope of review:

The findings of the administra-

tive law judge as to the facts,

if supported by substantial and

competent evidence shall be con-

clusive. The court, upon its own

motion or upon motion of either of

the parties to the proceeding, may

permit each party to introduce such

additional evidence as the court may

believe necessary to a proper de-

cision of the cause.

The jurisdiction of the court

shall be exclusive and its judgment

and decree shall be final, except

that the same shall be subject to

a review by the supreme court or

the court of appeals, on appeal,

by either party, irrespective of

the nature of the decree or judg-

ment. Such appeal shall be taken

and prosecuted in the same manner

and form and with the same effect

as is provided in other cases of

appeal to the supreme court or

the court of appeals, and the re-

cord so certified shall contain

all that was before the lower

court.

Appendix No. 4, p.6

RCW 49.60.260(2), (3).

Those procedures, however, are not

controlling. The administrative proce-

dure act (APA), RCW 34.04.130(1), provides

that a person aggrieved by a final deci-

sion in a contested case is "entitled to

judicial review thereof only under [the

APA] and such person may not use any other

procedure ... even though another pro-

cedure is provided elsewhere by a special

statute or a statute of general applica-

tion." This provision was adopted subse-

quent to the review procedures of RCW 49.

60. Accordingly, it is clear that the re-

view procedures of the APA must be adhered

to in the instant case. Cf. Olson v.

University of Wash., 89 Wn.2d 558, 573

P.2d 1308 (1978) (wherein this court held

that the review procedures of a special

statute adopted after the APA governed

Appendix No. 4, p.7

our review).

Our review, like that of the super-

ior court and the Court of Appeals, is

under RCW 34.04.130(6) which provides:

The court may affirm the decision

of the agency or remand the case

for further proceedings; or it may

reverse the decision if the substan-

tial rights of the petitioners

may have been prejudiced because

the administrative findings, infer-

ences, conclusions, or decisions

are:

(a) in violation of constitu-

tional provisions; or

(b) in excess of the statutory

authority or jurisdiction of

the agency; or

(c) made upon unlawful proce-

dure; or

(d) affected by other error of

law; or

(e) clearly erroneous in view of

the entire record as submitted

and the public policy contained

in the act of the legislature

authorizing the decision or

order; or

(f) arbitrary or capricious.

Difficulties as to application and

scope of the APA standards are apparent

in the line of cases interpreting the

Appendix No. 4, p.8

1 But it is clear under

above provisions.

the APA that review, whether conducted by

the superior court, Court of Appeals, or

Supreme Court, is limited to the record:

“review shall be conducted by the court

« « « and shall be confined to the record".

lenis is discussed in an analysis

and critique of the major cases up to

1978 in Abrahams, Scope of Review of Ad-

ministrative Action in Washington: A Pro-

posal, 14 Gonz. L. Rev. 5 T1878)

rofessor Abrahams' critique is di-

rected to the lack of consistency in this

court's applications of the APA review

standards, the problem being to figure

out when the court will substitute its

judgment for that of an administrative

agency and when it will defer to the

agency's expertise. In reviewing the

case before us, we will attempt to clari-

fy this law, but we note that issues as

to scope of appellate review of adminis-

trative decisions do not readily lend

themselves to unvarying rules and stand-

ards of great predictability in any juris-

diction, most notably in the federal sys-

tem. For a discussion of the irreconcil-

able lines of federal cases exemplifying

this fact, see K. Davis, Administrative

Law ch. 29-30 (3d ed. 1972).

Appendix No. 4, p.9

RC’ 34.04.130(5), with exceptions as set

out. We have previously ruled that our re-

view of administrative decisions is on the

record of the administrative tribunal it-

self, not of the superior court. Depart-

ment of Ecology v. Ballard Elks Lodge 827,

84 Wn.2d 551, 527 P.2d 1121 (1974); Farm

Supply Distrib., Inc. v. State Utils. &

Transp. Comm'n, 83 Wn.2d 446, 518 P.2d

1237 (1974).

II

ISSUES OF FACT UNDER THE APA

Judicial review is not selective, but

must be conducted on the entire record,

not by isolating evidence. Norway Hill

Preservation & Protection Ass'n v. King

County Council, 87 Wn.2d 267, 552 P.2d

674 (1976). The duty of the reviewing

court to search the entire record for

evidence both supportive of and contrary

Appendix No. 4, p.10

to the agency's findings is found in Uni-

versal Camera Corp. v. NLRB, 340 U.S. 474,

95 L.Ed 456, 71 S. Ct. 456 (1951). RCW 34.

04.130(6)(e) addresses the clearly erron-

eous standard of review for factual deter-

minations "in view of the entire record”.

As previously discussed, the APA's

clearly erroneous standard of review for

factual determinations governs. The APA

amendment in 1967 did away with a substan-

tial evidence test replacing it with the

clearly erroneous test. This change clear-

ly indicated that the legislature intended

to allow broader, more intensive review of

an agency's factual determinations. An-

cheta v. Daly, 77 Wn.2d 255, 259, 461 P.2d

531 (1969). See also Abrahams, Scope of

Review of Administrative Action in Wash-

ington: A Proposal, 14 Gonz. L. Rev. 75,

80 (1978). The present test allows for

Appendix No. 4, p.1ll

greater judicial scrutiny of agency fact

findince, as the reviewing court can declare

a finding to be clearly erroneous "when

although there is evidence to support it,

the reviewing court on the entire evidence

is left with the definite and firm convic-

tion that a mistake has been committed.”

Ancheta, at 259-60.

In Thorndike v. Hesperian Orchards,

Inc., 54 Wn.2d 570, 343 P.2d 183 (1959),

we ended our former practice of trying

de novo auestions of fact already deter-

mined by trial courts. Cf. Smith v. Ska-

git County, 75 Wn.2d 715, 453 P.2d 832

(1969) (Wherein this court reviewed the

record de novo because the trial court had

not heard testimony recuiring it to as-

sess the credibility of witnesses, to

weigh evidence, or reconcile conflicting

evidence). Substitution of our judgment

Appendix No. 4, p.12

for that of the administrative agency in

factual matters is not authorized by the

APA, and by reasoning of Hesperian Orchards,

we will not try facts de novo on review.

Although the Court of Appeals cor-

rectly points out that there was credible

evidence contrary to the tribunal's find-

ings, the findings are not "clearly erron-

eous" and should not have been tried de

novo as was done by that court. See

Stempel v. Department of Water Resources,

82 Wn.2d 109, 508 P.2d 166 (1973).

IIt

ISSUES OF LAW UNDER THE APA

Next, the issues of law are reviewed

under the APA, RCW 34.04.130(6)(d). The

Bona Fide Occupational Qualification (BFOQ)

definition as determined by the tribunal

is a question of law, to which we apply

the error of law standard. Since issues

of law are the responsibility of the judi-

Appendix No. 4, p.l

cial branch to resolve, the error of law

standard allows the reviewing court to

essentially substitute its judgment for

that of the administrative body's, though

substantial weiaht is accorded the agency's

view of the law. As we said in Overton

v. Economic Assistance Auth., 96 Wn.2d

552, 637 P.2d 652 (19381), at pages 554-

55:

Where an administrative agency is

charged with administering a spe-

cial field of law and endowed with

quasi-judicial functions because

of its expertise in that field, the

agency's construction of statutory

words and phrases and legislative

intent shoulec be accorded substan-

tial weight when undergoing judicial

review. ... We also recognize

the countervailing principle that

it is ultimately for the court to

determine the purpose and meaning

of statutes, even when the court's

interpretation is contrary to that

of the agency charged with carrying

out the law. .. . both history and

uncontradicted authority make clear

that it is emphatically the province

and duty of the judiciary [sic] branch

to s hat the law is.

(Citations omitted.)

Appendix No. 4, p.14

Washington's Law Against Discrimina-

tion provides for a BFOQ exemption in RCW

49.60.180:

It is an unfair practice for any

employer:

(1) To refuse to hire any person

because of such person's...

— + « « unless based upon a bona

de occupational qué cation

TBFOQ] .

(Italics ours.) The act does not define

BFOQ; however, the Human Rights Commis-

sion in WAC 162-16-020(2) defines the

BFOQ exemption:

(a) Where a person's... SEX ..-

will be essential to, or will contri-

bute to, the accomplishment of the

purposes for which the person is

hired.

(Italics ours.)

By comparison, Title 7 of the Civil

Rights Act of 1964, 42 U.S.C. sec 2000e-2

(e) (1) (1976) provides:

{I]t shall not be an unlawful em-

ployment practice for an employer

to hire and employ employees...

on the basis of ... sex... in

those certain instances where...

Appendix No. 4, p.15

sex . .. is a hona fide occupational

ualification reasonably necessa to

the normal operation of that sarttcu-

ar business or enterprise...

(Italics ours.)

The latter has been interpreted very

narrowly in the federal courts to require an

employer to establish that all or substan-

stantially all persons in the excluded

class would be unable to efficiently per-

form the duties, Weeks v. Southern Bell

Tel. & Tel. Co., 408 F.2d 228, 235 (5th

Cir. 1969), and the essence of the opera-

tion would be undermined by hiring anyone

in that excluded class. Diaz v. Pan Am.

World Airways, Inc., 442 F.2d 385, 388 (Sth

Cir.), cert. denied, 404 U.S. 950, 30 L.Ed.

2d 267, 92 S.Ct. 275 (1971). Diaz states

that mere preference cannot itself justify

discriminatory vractices in employment,

it must rise two the level of a business

necessity. See also Dothard v. Rawlinson,

433 U.S. 321, 53 L.Ed.2d 786, 97 S.Ct.

Appendix No. 4, p.16

2720 (1977).

The hearing tribunal relied upon

these federal cases in its determination

that no BFOQ existed under Washington's

Law Against Discrimination, RCW 49.60.

We hold that such reliance was proper.

The County asserts that the hearing tri-

bunal erred in using these cases to inter-

pret RCW 49.60 because WAC 162-16-020(2)

(a) is written in the alternative, "“essen-

tial to, or will contribute to”. This

language is far broader than that permit-

ted under the federal definition of a

BFOQ. We conclude that a literal inter-

pretation of the regulation would frus-

trate the purposes of RCW 49.60. The

legislature has directed that the law's

provisions be liberally construed in order

to accomplish its purposes. RCW 49.60.

020.

We recognize that in promulgating WAC

Appendix No. 4, p.17

162-16-020(2) (a) the Commission did not in-

tend to impede the purposes of the Law

Against Discrimination. In fact other

provisions within the same chapter of the

administrative code indicate that the Com-

mission intended a narrower standard com-

parable to Title 7. WAC 162-16-020(2) pro-

vides:

The term “bona fide occupational

qualification” has not been de-

fined by the legislature. Its

meaning must be worked out through

experience in administering the

law and with reference to the gen-

f the law against

other expres-

Sions Of public policy.

{Italics ours.) The Commission has ex-

pressed a public policy in WAC 162-16-130:

Bona fide occupational qualifica-

tion. The Commission believes that

the BFOQ should be applied narrowly

to jobs for which a particular qual-

ity of sex, race, age, etc. . . « «,

is essential to the accomplishment

of the purposes of the job.

Where it is necessary for the pur-

pose of authenticity or genuine-

ness (e.g., model, actor, actress)

or maintaining conventional stand-

ards of sexual privacy (e.g.,

lockerroom attendant, intimate ap-

Appendix No. 4, p.18

parel fitter), the Commission will

consider sex to be a BFOQ. Any

other type of BFOQ should be very

carefully considered. To be safe,

the employer should request a

BFOO ruling from the Washington

State Human Rights Commission and

cite the ruling in the employment

advertisement.

Anytime that an employment adver-

tisement or notice expresses a pre-

ference, limitation, or discrimina-

tion based on sex, marital status,

race, color, creed, age, national

origin, or the presence of any phy-

sical, sensory, or mental handi-

cap, the burden shall be on the em-

ployer to prove that the expres-

sion is justified by a BFOQ. In

the absence of proof, the adver-

tisement will be considered an un-

fair practice under the law. (For

further guidance on the meaning of

BFOQ, see WAC 162-16-020.) [Order

20, sec. 162-16-130, filed 1/20/75.)

In addition, WAC 162-30-010 provides:

In the interest of consistency

and to avoid confusion on the

part of persons governed by both

the state and federal sex discrim-

ination laws, the commission will

generally follow interpretations

of the sex discrimination provi-

sions of Title VII of the United

States Civil Rights Act of 1964,

42 USC, sec. 2000e and the follow-

ing, where the federal act is com-

parable to the state act.

Accordingly, because a literal in-

Appendix No. 4, p.19

terpretation of WAC 162-16-020(2) would

frustrate the purposes of our law and

other regulations indicate the compara-

ble nature of a BFOO under RCW 49.60

and Title 7 the hearing tribunal was cor-

rect in using Weeks and Diaz to interpret

its regulation. The Vourt of Appeals,

however, held that Weeks and Diaz were

factually distinguishable and could not

be relied upon because they involved re-

strictions limiting a job category to one

sex or another exclusively whereas the

instant case involves an attempt to

achieve a female-male balance. We con-

Clude for the following reasons that the

factual distinctions are not relevant

herein.

RCW 49.60.180(1) prohibits an em-

ployer from “refus[{ing] to hire any per-

son because of such person's ... sex

+ « « unless based upon a bona fide occu-

Appendix No. 4, p.20

pational qualification ..." The County's

decision to achieve a sexual balance

by providing a male counselor and female

counselor resulted in the County refus-

ing to hire Sellers because of her sex.

As such, the action was prohibited by

the statute unless it was based upon a

bona fide occupational qualification. We

conclude that a decision to sexually

balance the work force is subject to the

BFOQ analysis of Weeks and Diaz. Accord-

ingly, the inquiry is (1) under Weeks,

whether all or substantially all 2-women

counseling teams would be unable to per-

form their reocuired function; or (2)

under Diaz, whether the essential func-

tion of the program would be undermined

if 2-women teams were utilizea.?

In sum, we conclude that the hearing

tribunal applied the correct standard in

Because we affirm the hearing ex-

Appendix No. 4, p.2l

determining that a BFOQ did not exist.

IV

MIXED ISSUES OF LAW AND FACT UNDER THE APA

Since we conclude that the tribunal

applied the correct law to facts which

were not clearly erroneous, there is no

issue as to mixed questions of law and

fact. However, an additional discussion

relating to the proper scope of review

of mixed issues of law and fact is neces-

sary in light of the course taken by the

Court of Appeals. The Court of Appeals

characterized the case as one involving

mixed questions of law and fact and pro-

aminer‘s ruling that the County's ac-

tions in attempting to sexually balance

its staff violates RCW 49.60, we need

not reach the question of whether its

actions violated the state [qual Rights

Amendment or equal protection. Cf. Mar-

chioro v. Chane 90 Wn.2d 298, 582 P.2d

787 (1578) (wherein we dealt with the

constitutional claims).

Appendix No. 4, p.22

ceeded to try the facts de novo in its ap-

plication of the law.

A reviewing court is not able to

review facts de novo on mixed ques-

tions of law and fact, though language

in previous opinions led the Court of

Appeals to mistakenly do so in this case.

By mixed questions of law and fact we are

really referring not to the facts them-

selves, nor the law governing the situa-

tion, but to the’ law as applied to those

facts. "“[E)quating the law application

process with the fact identification

process, as many courts do, can lead

only to distorted analysis." Abrahams,

at 77, citing L. Jaffe, Judicial Control

of Administrative Action 546-48 (1965).

Mixed questions of law and fact,

or law application issues, involve the

process of comparing, or bringing togeth-

er, the correct law and the correct

Appendix No. 4, p.23

facts, with a view to determining the le-

gal consequences. As we said in Daily

Herald Co. v. Department of Employment

Security, 91 Wn.2d 559, 561, 588 P.2d

1157 (1979), mixed questions of law and

fact exist “where there is dispute both

as to the propriety of the inferences

drawn by the agency from the raw facts

and as to the meaning of the statutory

term". We have invoked our inherent power

to review de novo those issues. See

Daily Herald; Department of Revenue v.

Boeing Co., 85 Wn.2d 663, 538 P.2d 505

(1975); Weyerhaeuser Co. v. Department

of Revenue, 16 Wn.App. 112, 553 P.2d

1349 (1976).

Appendix No. 4, p.24

De novo review in these cases refers

to the inherent authority of this court

to determine the correct law, independently

of the agency's decision, and apply it to

the facts as found by the agency and up-

held on review by this court. In Daily

Herald we determined, then applied, the

correct law to essentially undisputed

facts. What we reviewed “de novo" was

the meaning of the statute and how it ap-

plied to facts as determined by the trier

of fact; we did not engage in reweighing

evidence of credibility and demeanor.

In this case, the Court of *»vpeals

was presented with evidence sharply in

conflict, in the form of expert testimony,

and the majority determined the weight of

the evidence contrary to that of the fact

finder. The dissent weighed the evidence

again, coming to still another conclusion.

We hold that it is not the province of the

Appendix No. 4, p.25

reviewing court to try the facts de novo

when presented with mixed cuestions of

law and fact, whether on appeal from a

judgment of the superior court, administra-

tive tribunal, or administrative judge.

See Bennett Veneer Factors, Inc. v.

Brewer, 73 Wn.2d 849, 441 P.2d 128 (1968).

Vv

COUNTY'S APPEAL

The County contends that the forma-

tion and actions of the tribunal violated

constitutional and statutory provisions.

The trial mrt concluded that no such

violations existed. The majority of the

Court of Appeals did not address the is-

sues. We affirm the trial court.

The County, and amicus, argue that

the separation of powers doctrine has

been violated because this case involves

a dispute between individuals which should

be decided by a court rather than an ad-

Appendix No. 4, p.26

ministrative agency. This argument is

without merit. We have clearly decided

that legislatively created agencies may

constitutionally act in a quasi-judicial

capacity. Asarco Inc. v. Air Quality

Coalation, 92 Wn.2d 685, 696, 601 P.2d

501 (1979). In addition, the delegation

of adjudicative powers to the Human Rights

Commission was expressly upheld in Rody

v. Hollis, 81 Wn.2d 88, 500 P.2d 97 (1972).

The County also contends that the

procedures followed by the Commission,

i.e., the Human Rights Commission inves-

tigates the claim and also appoints a

tribunal to adjudicate the claim, vio-

lates due process. RCW 49.60 and the

Commission's rules contained in WAC 162-

04 and 162-08 establish a tribunal com-

posed of persons who had no part in the

earlier stages of the case. We have pre-

viously upheld the legality of these pro-

Appendix No. 4, p.27

cedures in Rody .*

The County's primary contention ap-

pears to be that it was denied a fair

hearing. In this regard it argues that

the interrelationship between WAC 162-

08-278(7), concerning the law the tribu-

nal shall apply, and WAC 162-08-211(6),

concerning the law each tribunal member

agrees to apply causes the tribunal mem-

bers to be committed only to the Commis-

sion and its view of the law therefore

3 ue note that the 1981 legislature

has eliminated the provisions that form

the basis of the County's objections. An

administrative law judge appointed by the

chief administrative law judge has been

substituted for the hearing tribunal ap-

pointed by the chairperson of the Commis-

sion. Laws of 1981, ch. 259, sec.2,

amending RCW 49.60.250. Uniform proce-

dure rules promulgated by the chief admin-

istrative law judge will supersede Human

Rights Commission regulations governing

hearing procedures. Laws of 1981, ch. 67,

ss. 8, 13, 14. These statutes will be-

come fully effective on July l, 1982.

Laws of 1981, ch. 259, sec. 7; Laws of

1981, ch. 67, sec. 40.

Appendix No. 4, p.28

denyine parties like itself a fair trial.

WAC 162-08-211(6) requires each tri-

bunal member to execute an “Acceptance

of Appointment” form, stating:

"I accept appointment as a member of

the hearing tribunal which will hear

the case captioned above for the

Washington State Human Rights Conm-

mission.

I certify that, to my knowledge, I

have no conflicts of interest which

would interfere with my ability to

judge fairly and impartially.

I promise to judge this case with

fairness and impartiality to all

parties and persons.

I agree with the purposes of the

law against discrimination and I

will follow and apply the law

against discrimination and the reg-

ulations, declaratory rulings, and

other formal interpretations of the

law against discrimination made by

vote of the commissioners.

I am willing to devote the time

necessary to fully hear the case

and decide it with reasonable

promptness.

Dated

~ (Signature)

The County implies that this agreement

limits the tribunal's consideration of rele-

vant law. As illustrated by the written

Appendix No. 4, p.29

opinion of the hearing tribunal in the in-

stant case citing numerous federal deci-

sions no such limitation exists. The

above agreement includes a promise to

apply Commission regulations. These re-

gulations include WAC 162-08-278(7):

In determining whether unfair prac-

tices have been committed, the hear-

ing tribunal shall apply the law as

it is written in chapter 49.60 RCW

and as it has been interpreted by

final decisions of appellate courts

and by the Washington State Human

Rights Commission in regulations,

declaratory rulings, and other for-

mal interpretations made by vote

of the commissioners. Court deci-

sions interpreting statutes other

than chapter 49.60 RCW, rulings of

other hearing tribunals, interpre-

tations of law by the commission's

staff or legal counsel, and argu-

ments of legal counsel for the com-

mission or other parties shall be

given whatever persuasive weight

they possess, in the judgment of

the tribunal.

The County also implies that WAC

162-08-211(6) allows the tribunal to ig-

nore constitutional guaranties. As pre-

viously addressed, due process rights are

Appendix No. 4, p.30

emphasized and ensured by the Commission

procedures. The failure to include a de-

Cclaration of support for federal and state

constitutions, as apparently sought by

the County does not violate the guaranty

of a fair hearing, especially since the

tribunal, as an administrative agency, has

no authority to determine the constitu-

tionality of the law it administers.

Bare v. Gorton, 84 Wn.2d 380, 526 P.2d

379 (1974).

The guarantee of a fair hearing does

not prohibit partiality toward an issue

of law or a policy. "A prejudoment or

point of view about a question of law or

policy, even if so tenaciously held as to

suggest a closed mind, is not, without

more, a discualification.” 3 K. Davis,

Administrative Law, sec. 19:l, at 371

(2d ed. 1980). In explaining his reason

for not disqualifying himself from a spe-

Appendix No. 4, p.3l

cific case based upon his prior position

on a similar issue while he worked for

the Department of Justice, Justice Rehn-

guist state in Laird v. Tatum, 409 U.S.

824, 834-35, 34 L.Ed.2d 50, 90 S.Ct. 7

(1972):

Mr. Justice Douglas’ statement about

federal district judges in his dis-

senting opinion in Chandler v. Judi-

cial Council, 393 U.S. 74, I37 [2e L.

S. Ct. 1648] (1970),

strikes me as being equally true of

the Justices of this Court:

"Judges are not funcgible; they

cover the constitutional spectrum;

and a particular judge's emphasis

may make a world of difference

when it comes to rulings on evi-

dence, the temper of the court-

room, the tolerance for the prof-

fered defense, and the like. Law-

yers recocnize this when they talk

about ‘shopping’ for a judge;

Senators recognize this when they

are asked to give their ‘advice

and consent’ to judicial appoint-

ments; laymen recognize this when

they appraise the quality and image

of the judiciary in their own com-

munity.”

Since most Justices come to this bench

no earlier than their middle years,

it would be unusual if they had not

by that time formulated at least

some tentative notions that would in-

fluence them in their interpreta-

Appendix No. 4, p.32

tion of the sweeping clauses of the

Constitution and their interaction

with one another. It would be not

merely unusual, but extraordinary,

if they had not at least given opin-

ions as to constitutional issues in

their previous legal careers. Proof

that a Justice's mind at the time he

joined the Court was complete tabula

rasa in the area of constitutiona

adjudication would be evidence of

lack of qualification, not lack of

bias.

Similarly, in this case, a willing-

ness to apply the Law Against Discrimina-

tion, and a promise to be fair and impar-

tial to all parties and persons did not

violate the County's right to a fair hear-

ing. See also Skold v. Johnson, 29 Wn.

App. 541, 630 P.2d 456 (1981).

Another assertion mide by the County

is that Sellers’ claim is fatally defi-

cient in that she did not make formal ap-

plication for the job. We disagree. It is

Hornbook law that the law does not re-

quire a useless act. The evidence is not

disputed that Sellers called and was told

that only men were being considered for

Appendix No. 4, p.33

the job. The Sheriff himself confirmed

this by letter to the Human Rights Commis-

sion shortly thereafter. The Sheriff

testified that although he preferred a man

he might have hired Sellers if no equally

qualified man was available. At the time

of the incident at issue, Sellers had a

bachelor's degree in sociology and psy-

chology and was close to completing a

master's program in guidance and counsel-

ing. She had many years of teaching and

counseling experience, including work

with migrant workers in the Pasco area

and some teaching experience with work

release inmates. In fact, the Sheriff

testified that he had not expected to at-

tract anyone of Sellers’ qualifications

to apply for the position.

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 36 L.Fd.2d 668, 93 S.Ct.

1817 (1973), sets out the four require-

Appendix No. 4, p.34

ments of a prima facie case of discrimi-

nation: (1) plaintiff is a member of a

suspect, or protected class, (2) plain-

tiff applied and was qualified for a job

for which the employer was seeking appli-

cants, (3) that despite plaintiff's quali-

fications s/he was rejected, (4) that

after rejecting plaintiff, the job re-

mained open and the employer continued

to seek applicants with plaintiff's basic

qualifications.

As stated in WAC 162-30-010, the

state law on discrimination will be in-

terpreted by reference to the federal law

when not in conflict. See Lindsay v.

Seattie, 86 Wn.2d 698, 548 P.2d 320 (1976);

Fahn v. Cowlitz County, 93 Wn.2d 368,

610 P.2d 857 (1980); Rose v. Hanna Minning

Co., 94 Wn.2d 307, 616 P.2d 1229 (1930).

Although we accept McDonnell Douglas as

good law, technical compliance with ele-

Appendix No. 4, p.35

ment (2) would defeat the purpose of RCW

49.60, which is to be liberally construed

to effectuate its purpose to prohibit

unlawful discrimination. "[W]Jhere an em-

ployer's acts deter [plaintiff] from ap-

plying, strict adherence to the ‘appli-

cation’ requirement is not mandated."

Iowa Civil Rights Comm'n v. Woodbury

County Community Action Agency, 304 N.W.

2d 443, 451 (Iowa Ct. App. 1981), citing

State Comm'n for Human Rights v. Yellow

Cab, 611 P.2d 487, at 491 (Alaska 1980).

See also Arnett v. Seattle Gen. Hosp.,

65 Wn.2d 22, 395 P.2d 503 (1964).

We reverse the Court of Appeals and

uphold the trial court's affirmance of

the findings, conclusions and damages

awarded by the tribunal.

s/Dimmick, J.

Appendix No. 4, p.36

we concur:

s/ Brachtenback, C.J.

= Rossellini, J

ord, J.

<5

Appendix No. 4, p.37

BEFORF THE WASHINGTON STATE HUMAN FICHTS

COMMISSION

BETTY P. SELLERS,

Complainant, No. P-41-74

ee ee ee ee

vs-

) ORDER OF HEAR-

FRANKLIN COUNTY SHERIFF'S) ING TRIBUNAL

OFFICE,

Respondent.

~— ee ee ee

The hearing tribunal, duly appointed

in this cause, having rendered its written

decision, and having made Findings of Fact

and Conclusions of Law,

IT If€ HEREBY ORDERED THAT RESPONDENT:

..¢ Cease and desist from refusing

to hire Complainant Betty Sellers or any

other woman for work release counseling

or any similar position, even if Respon-

dent deems it prefereble to have one

counselor of each sex, unless subsequent

to this opinion, such position is declared

by the Commission to have BFOQ status pur-

suant to WAC 162-146-020, -030, and

Appendix No. 5, p.l

-040, under the procedures of WAC 162-03-

700.

2. Respondent shall pay to Betty

Sellers the total sum of $7,200 in back

pay, representing wages she would have

earned at the rate of $600 per month

from June 21, 1974 through June 18, 1975.

Any and all benefits incident to such em-

ployment shall also be paid to Sellers for

the above period.

3. Further, the Tribunal orders

Respondent to offer to hire Betty Sellers

for the first available work release

counseling position, or any similar posi-

tion, whether the job is funded through

CETA monies, the recular County budget,

or through any other means. Sellers shall

be given notice of said offer by regis-

tered mail, copy to the Washington State

Human Rights Commission, 1601 Second Ave-

nue Building, Seattle, Washington, 198101,

Appendix No. 5, p.2

and she shall have ten days in which to

either accept or reject the Respondent's

offer in the same manner. In the event

that Sellers refuses to accept Respond-

ent's first offer of employment, she

shall be similarly notified of all future

vacancies for such positions, and be

given the right of first refusal for such

positions for a period of two years from

the date of our Opinion. Copies of said

notifications shall also be mailed to

the Commission. Sellers shall have ten

days in which to either accept or reject

these positions as well.

4. Any position which Betty Sellers

chooses to reject shall be advertised

in a local publication of daily or weekly

circulation and through the Pasco Office

of the Employment Security Department.

Applicants shall be considered without

regard to sex or any other protected

Appendix No. 5, p.3

Classification. defined under RCW 49.60.

180, and the Commission shall be promptly

notified of the name, address and sex

of each individual hired.

5. Respondent shall have thirty

days from the entry of this order to sub-

mit to the Commission written criteria

for the evaluation of applicants for

work release counseling (or similar)

positions. The Commission shall have

ten eins thereafter within which to file

objections with this Tribunal regarding

said proposed criteria. If no objection

is made, the Tribunal will approve entry

of an order implementing such criteria.

If counsel for the Commission object to

the proposed oriteria, this Tribunal will

promptly hold a hearing and rule on the

adequacy thereof.

Jurisdiction of the above entitled

matter shall be retained by the Tribunal

Appendix No. 5, p.4

until the above remedies have been imple-

mented.

In the event that the functions of

the Franklin County Work Release Program

are transferred from the Sheriff's Office

to some other County department, the

terms of the above order shall apply to

that department.

It is so ordered

s/Mary Ann Ottinger

Mary Ann Ottinger, Tribunal

Chairperson

s/Robert Aronson

Robert Aronson, Tribunal

Member

s/J. Nelson Jud

r. J. Nelson Judy, Tribunal

Member

Presented by:

s/G. Saxon neeeee

. D , ASSistant

Attorney General, Attorney

for the Washington State

Human Rights Commission

Appendix No. 5, p.5

SUPREME COURT OF THE UNITED STATES

NO. A-286

FRANKLIN COUNTY SHERIFF'S OFFICE

Petitioner,

v.

BETTY P. SELLERS AND WASHINGTON

STATE HUMAN RIGHTS COMMISSION

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application

of counsel for petitioner,

IT IS ORDERED that the time for fil-

ing a petition for writ of certiorari

in the above-entitled cause be, and the

same is hereby, extended to and includ-

ing November 1, 1982.

s/William H. Rehnquist

sociate Justice o e

Supreme Court of the

United States

Dated this 2lst

day of September,

1982

Appendix No. 6

BFFORE THE “ASHINGTON STATE HUMAN RIGHTS

COMMISSION

BETTY P. SELLERS, )

) NO. P-41-74

Complainant, )

) FINDINGS OF

v- ) FACT AND

) CONCLUSIONS

FRANKLIN COUNTY SHERIFF'S) OF LA OF

OFFICE, HEARING

TRIBUNAL

Respondent.

~~ ee Oe ee

This matter came on regularly for

hearing on October 13 and 14, 1977, in

Pasco, Washington. Complainant Betty

P. Sellers was present and unrepresented

by counsel. Respondent Franklin County

Sheriff's Office appeared by and through

its counsel, George FE. Heidlebaugh, Dep-

uty Prosecuting Attorney. Franklin

County Sheriff Richard FE. Boyles was pres-

ent and represented by Stanley Taylor, of

Peterson, Taylor, Day & Shea. The Wash-

ington State Human Rights Commission was

represented by G. Saxon Rodgers, Assist-

ant Attorney General. |

Appendix No. 7, p.!

Testimony having been heard, exhi-

bits having been received, the hearing

tribunal havine considered the evidence,

arguments of counsel, and having ren-

dered its written decision dated 28 No-

vember 1977, the tribunal hereby makes

the following:

FINDINGS OF FACT

1. Om or about June 21, 1974, the

Complainant, Betty P. Sellers, was re-

ferred to the Franklin County Sheriff's

Office by the Pasco office of the Wash-

ington State Department of Employment

Security.

2. Sellers was told by Mr. Manuel

G. Rodriguez of Employment Security,

that there was an opening at the Sheriff's

Office for a Work Release Counselor for

which, in his opinion, Sellers was quali-

fied.

3. Sellers contacted Shirley Bill-

Appendix No. 7, p.2

ingsley, Work Release Director, indicated

she had been referred by Rodriguez, and

incuired of Billingsley of the Counselor

position.

4. Billingsley admitted to Sellers

that there was, in fact, a Counselor po-

sition available, but that they “wanted

a man" to fill it.

5. When Sellers inquired as to the

reason for the "male" sex qualification,

Billingsley told Sellers that Sheriff

Boyles felt they “needed a man.”

6. Shirley Billingsley acted as an

agent of, and upon the instructions of

Sheriff Richard Boyles, when she was con-

tacted by Sellers.

7. Sellers attempted to apply for

the Counselor position in the Franklin

County Sheriff's Office that in fact ex-

isted on or about June 21, 1974.

8. Sellers was qualified for the

Counselor position that was available

Appendix No. 7, p.3

in the Sheriff's Office in June of 1974,

9. Sellers was refused the oppor-

tunity to apply for the available Counse-

lor position because of her scx.

19. Sellers was damaged when she

was refused the opportunity to apply for

the Counselor position because of her sex.

11. Sellers filed a complaint with

the Washington State Human Rights Com-

mission which alleged sex discrimination

in employment against the Franklin County

Sheriff's Office.

12. Franklin County entered into a

contract with Employment Security which

provided for a Counselor position from

June 1, 1974 to August 15, 1974, and

which was to be funded by unexpended EEA

funds. This Counselor position was the

position in the Sheriff's Office for which

Sellers was referred by Employment Secu-

rity.

13. Franklin County entered into a

Appendix No. 7, p.4

subsequent contract with Employment Secu-

rity which extended the Counselor posi-

tion for another ten and one-half months,

and which was to be funded by CITA monies.

14. The Counselor position within the

Sheriff's Office was not filled because

Sellers filed a complaint with the Wash-

ington State Human Rights Commission.

15. Shirley Billingsley, a woman,

has performed the job of Counselor in the

Sheriff's Office for over four years,

and has done an excellent job.

16. No credible evidence was presented

to show that women as a class cannot per-

form the functions of a Counselor in the

Work Release Section of the Sheriff's

Office.

17. The employment of a male Coun-

selor is not necessary for the successful

implementation of the Franklin County Work

Release Program, but is merely a prefer-

ence or convenience.

Appendix No. 7, p.5

18. The Washington State Human Rights

Commission investigated the complaint of

Betty P. Sellers and made a finding that

there was reasonable cause to believe

that sex discrimination in employment

had taken place, in accordance with RCW

49.60.240.

19. The Washington State Human Rights

Commission attempted to eliminate the

unfair practice by conference, concilia-

tion and persuasion, in accordance with

RCW 49.60.240.

CONCLUSIONS OF LAW

1. The hearing tribunal has juris-

diction over the parties pursuant to RCW

49.60.230, .240, and .250.

2. Respondent committed an unfair

practice in employment because of sex

within the meaning of RCW 49.60.180(1).

3. Being of the male sex is not

a bona fide occupational qualification

for the position of Counselor, in the

Appendix No. 7, p.6

Work Release Section of the Franklin

County Sheriff's Office.

4. Betty P. Sellers is entitled

to seventy-two hundred dollars ($7,200)

in back pay and all benefits incident

to employment in the Sheriff's Office,

for the period June 21, 1974 through

June 18, 1975.

INCORPORATION OF WRITTEN DCCISION

Statements of fact and law made in

the written decision of the hearing tri-

bunal supplement and explain these find-

ings of Fact and Conclusions of Law.

DATED this 3rd day of January,:1978.

s/Mary Ann Ottincger

Mary Ann Ottinger

Tribunal Chairperson

s/Robert Aronson

Robert Aronson

Tribunal Member

s/J. Nelson Jud

r. J. Nelson Judy

Presented by: Tribunal Member

s/G. Saxon Rodgers

« SAXON

Assistant Attorney

General, Attorney for

the Washington State

Human Rights Com.

Appendix No. 7, p.7

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

FRANKLIN COUNTY SHERIFF'S)

OFFICE, )

)

Petitioner, ) NO. 23165

)

vs- )FINDINGS OF FACT,

YCONCLUSIONS OF

BETTY P. SELLERS, )LAW, AND

Complainant; WASHINGTON )JUDGMENT

STATE HUMAN RIGHTS

COMMISSION,

Respondent.

This appeal was heard on 15 June

1978. The Franklin County Sheriff's

Office was represented by George E. Hei-

dlebaugh, Deputy Prosecuting Attorney,

Franklin County. Richard E. Boyles,

Intervenor, was represented by Stanley

D. Taylor. The Washington State Human

Rights Commission was represented by G.

Saxon Rodgers, assistant attorney general.

The court heard oral argument from all

counsel. The court has read the entire

record of the tribunal hearing, includ-

Appendix No. 8, p.l

ing the transcript of testimony. The

court has read the briefs of the parties

and has done independent research of the

law. The court gave its oral opinion on

6 October 1978, and now enters its Find-

ings of Fact, Conclusions of Law, and

Judgment.

FINDINGS OF FACT

1. No Issue of Fact. This review of an

administrative contested cas2 was con-

ducted on the record of the hearing be-

fore the Human Rights Commission hearing

tribunal. The court did not receive ori-

ginal evidence and did not itself try

any issues of fact. The Court ruled that re-

view shall be confined to the record (WAS)

CONCLUSIONS OF LAW

1. Nature of Proceedings. This pro-

ceedine is a review under RCW 34.04.130

of a contested case conducted by a hear-

ing tribunal of the Washington State Hu-

man Rights Commission under RCW 49.60.250.

Appendix No. 8, p.2

2. No Violation of Constitution. The

proceeding and order of the hearing tri-

bunal did not violate any constitutional

provisions. Specifically:

(a) Selection of Tribunal. The man-

ner of selecting tribunal members does not

violate any constitutional provision.

(b) Acceptance of Appointment [orm.

The form of acceptance of appointment and

responsibilities required by WAC 162-08-

211(6) and sioned by the tribunal members

in this case does not violate any consti-

tutional provision.

3. Within Statutory Authority and

Jurisdiction. Nothing done by the Human

Rights Commission or the hearing tribu-

nal: was in excess of statutory author’ty

or of the jurisdiction of the Commission

and tribunal.

4. No Unlawful Procedure. The pro-

cedure followed below was in compliance

with the governing statutes was not un-

Appendix No. 8, p.3

lawful. Specifically:

(a) Findings Made. The “recommended”

findings of investicator were adopted and

acted upon by the Commission's staff and

are in compliance with RCW 49.60.240.

(b) Other Steps Taken. The other sta-

tutory steps prior to hearing were properly

taken.

(c) No Denial of Appearance of Pair-

ness. Nothing indicates any violation of

the appearance of fairness doctrine.

5. No Other Error of Law. The pro-

ceeding below was not affected by any other

error of law. Specifically, the tribu-

nal did not err in concluding that being

male was not a bona fide occupational

qualification for the job at issue (tri-

bunal conclusion of law number 3).

6. Not Clearly Erroneous. The find-

ings of fact of the hearing tribunal are

not clearly erroneous in view of the en-

tire record and the public policy con-

tained in the law against dis-

Appendix No. 8, p.4

crimination. The findings of fact of

the hearing tribunal are:

1. On or about June 21, 1974, the

Complainant,

This text is long and has been trimmed here. Open the source document for the complete record.