# Appendix — Franklin County Sheriff's Office v. Sellers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1106

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1096%3A2. Public record. Not legal advice.