Barnes v. Washington Natural Gas Co., 6258-I

• Decision Date: 05 February 1979
• Docket Number: No. 6258-I,6258-I
• Citation: 591 P.2d 461,22 Wn.App. 576
• Parties: , 27 Fair Empl.Prac.Cas. (BNA) 1503, 19 Empl. Prac. Dec. P 8953, 1 A.D. Cases 47 Peter BARNES, Appellant, v. WASHINGTON NATURAL GAS COMPANY, Respondent.
• Court: Washington Court of Appeals

Page 576

22 Wn.App. 576

591 P.2d 461, 27 Fair Empl.Prac.Cas. (BNA) 1503,

19 Empl. Prac. Dec. P 8953, 1 A.D. Cases 47

Peter BARNES, Appellant, v. WASHINGTON NATURAL GAS COMPANY, Respondent.

No. 6258-I.

Court of Appeals of Washington, Division 1.

Feb. 5, 1979.

Sweet & Dussault, William L. E. Dussault, Karen M. Thompson, Seattle, for appellant.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Robert P. Piper, James L. Austin, Jr., Seattle, for respondent.

Winslow Whitman, Asst. Atty. Gen., Washington State Human Rights Commission, Seattle, for amicus curiae.

RINGOLD, Judge.

Peter Barnes commenced this action against Washington Natural Gas Company (WNGC) under the Washington State Law Against Discrimination (The Act) RCW 49.60, for allegedly discharging him from his employment as a handicapped person. Barnes appeals a judgment upon the pleadings finding him without standing to maintain the action.

The issue here is narrow: May a plaintiff claiming not to be handicapped sue under the Act on the grounds that he was discriminatorily discharged under the erroneous belief he suffered a handicap? We answer in the affirmative and reverse the judgment of the trial court.

Our consideration of this matter is limited to the facts alleged in Barnes' complaint. ¹

Barnes was hired by WNGC in the early part of 1975 as a "helper" on the natural gas line. He alleges that after approximately one month's employment at WNGC his employment was terminated because of an erroneous belief on WNGC's part that he suffered from epilepsy. Barnes contends that he does not now, nor did he ever have, epilepsy. He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180, which prohibits employers from discharging any person from employment "because of . . . the presence of any sensory, mental, or physical handicap."

After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC. The trial court entered judgment dismissing the action, holding:

(1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of "any sensory, mental, or physical handicap" are unconstitutionally vague and, therefore, void and alternatively,

(2) That plaintiff is without standing to bring an action against defendant pursuant to the provisions of RCW 49.60. . . .

After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P. Ry. v. Human Rights Comm'n, 87 Wash.2d 802, 557 P.2d 307 (1976), held the provision of the Act pertinent here not unconstitutionally vague. The unconstitutionality of the statute is not argued by WNGC, except we are urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.'s brief in that case. We refuse the invitation.

RCW 49.60.180 provides:

It is an unfair practice for any employer:

(2) To discharge or bar any person from employment because of . . . the presence of any sensory, mental or physical handicap.

The Washington State Human Rights Commission (The Commission) ² has adopted regulation WAC 162-22-040 as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a "sensory, mental, or physical handicap" if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) "The presence of a sensory, mental, or physical handicap" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.

WNGC CONTENTIONS

WNGC contends that as a general rule an employee, unless otherwise protected by contract or statute, is subject to termination at will by his employer with or without good cause. The legislature has made an exception to this general principle of law in the Act. The Act prohibits discharge from employment "because of . . . the Presence of any sensory, mental, or physical (condition)." (Emphasis supplied.) WNGC then reasons that the words "presence of" limits the class protected by the Act to those persons who are actually afflicted with a sensory, mental, or physical handicap and that Barnes, by alleging that he does not have epilepsy is therefore excluded. WNGC further contends that the regulations adopted by the Commission exceed the authority granted by the legislature, I. e., that the authority is limited only to designating persons who have the handicap.

The scope of review has recently been articulated by this court in Frame Factory v. Department of Ecology, 21 Wash.App. 50, 54, 583 P.2d 660, 662 (1978):

There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. See Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976). Our review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Weyerhaeuser Co. v. Department of Ecology, supra.

The issue in a recent case decided by our Supreme Court, Washington Power Co. v. Washington State Human Rights Commission, 91 Wash.2d 62, 586 P.2d 1149 (1979), concerned a rule promulgated by the Commission defining an unfair practice in employment proscribed by the statute, RCW 49.60.180 as discrimination based on "marital status." The employer had adopted a policy whereby it refused to hire a spouse of an employee, requiring termination of one of two employees who marry. The Commission determined that where no actual business necessity was shown, this policy constitutes discrimination and adopted its proscriptive rule. In the action for declaratory judgment the trial court held that the words "marital status" in the statute should be given their literal meaning, denoting only the fact whether one is or is not married, and that the Commission exceeded its authority when it adopted the rule.

The Supreme Court reversed, holding:

Reading this chapter as a whole, it is apparent that the legislature intended to give to the commission broad powers to investigate and formulate policies with respect to practices which involve discrimination based upon those attributes, conditions, and situations which it had found to constitute an unfair basis for such discrimination. It did not attempt to designate all of the practices which constitute such discrimination, but rather gave the board the authority to do so, after conducting the investigations, consultations and hearings provided for in the chapter.

Washington Power Co. v. Human Rights Comm'n, supra at 67-68, 586 P.2d at 1153.

The Commission here has been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission's interpretations of the statute reflected in its regulations. As the court stated in Retail Union v. Surveying Bureau, 87 Wash.2d 887, 898, 558 P.2d 215,...