Doe v. Boeing Co.

• Decision Date: 04 March 1993
• Docket Number: No. 59117-2,59117-2
• Citation: 121 Wn.2d 8,846 P.2d 531
• Parties: , 61 Empl. Prac. Dec. P 42,220, 61 USLW 2553, 2 A.D. Cases 548, 3 NDLR P 297 Jane DOE, Respondent, v. The BOEING COMPANY, Petitioner.
• Court: Washington Supreme Court

Page 8

121 Wn.2d 8

846 P.2d 531, 61 Empl. Prac. Dec. P

42,220, 61 USLW 2553,

2 A.D. Cases 548, 3 NDLR P 297

Jane DOE, Respondent, v. The BOEING COMPANY, Petitioner.

No. 59117-2.

Supreme Court of Washington,

En Banc.

March 4, 1993.

Reconsideration Denied April 5, 1993.

Perkins, Coie, Valerie L. Hughes, Charles N. Eberhardt, Bellevue, for petitioner

Lonnie G. Davis, Kelby D. Fletcher, Seattle, for respondent.

GUY, Justice.

Jane Doe, a biological male who was planning to have sex reassignment surgery, sought damages for employment discrimination, alleging an unaccommodated handicap under RCW 49.60, Washington's Law Against Discrimination. She ¹ was discharged by the Boeing Company for wearing "excessively" feminine attire in violation of company directives. The trial court ruled in favor of Boeing on the issue of liability. The Court of Appeals reversed and entered judgment for Doe. We granted Boeing's petition for review and reverse the Court of Appeals.

FACTS

Jane Doe was hired as a Boeing engineer in 1978. At the time of hire, Doe was a biological male and presented herself as such on her application for employment. In 1984, after years of struggling with her sexual identity, Doe concluded that she was a transsexual. A transsexual is a person who Dr. Timothy Smith, Doe's treating physician, confirmed Doe's self-assessment and diagnosed Doe as gender dysphoric. In April 1984, Doe began hormone treatments, as prescribed by Dr. Smith, as well as electrolysis treatments. In December 1984, Doe legally changed her masculine name to a feminine name.

                has a sense of discomfort and inappropriateness about his or her anatomical sex and wishes to be rid of his or her genitals and live as a member of the opposite sex.   American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders § 302.50 (3d ed. rev.1987).   Transsexualism is also known in the psychiatric and medical communities as gender dysphoria
                

In March 1985, Doe informed her supervisors, management and co-workers at Boeing of her transsexualism and of her intent to have sex reassignment surgery. Doe informed Boeing of her belief that in order to qualify for sex reassignment surgery, she would have to live full time, for 1 year, in the social role of a female. Doe based her belief on discussions with her treating psychologist and her physician about a treatment protocol for transsexuals known as the Harry Benjamin International Gender Dysphoria Standards ("Benjamin Standards"). Benjamin Standard 9 states: "Genital sex reassignment shall be preceded by a period of at least 12 months during which time the patient lived full-time in the social role of the genetically other sex." Clerk's Papers, at 313.

Upon being notified of Doe's intentions, Boeing informed Doe that while Doe was an anatomical male, she could not use the women's rest rooms or dress in "feminine" attire. Boeing informed Doe that she could dress as a woman at work and use the women's rest rooms upon completion of her sex reassignment surgery.

While Doe was an anatomical male, Boeing permitted Doe to wear either male clothing or unisex clothing. Unisex clothing included blouses, sweaters, slacks, flat shoes, nylon stockings, earrings, lipstick, foundation, and clear nail polish. Doe was instructed not to wear obviously feminine clothing such Between June and late September 1985, Boeing management received approximately a dozen anonymous complaints regarding Doe's attire and use of the women's rest rooms. On October 25, 1985, following the receipt of a complaint about Doe using the women's rest room, Boeing issued Doe a written disciplinary warning. ² The warning reiterated Boeing's position on acceptable attire and rest room use and stated that Doe's failure to comply with Boeing's directives by November 1, 1985, would result in further corrective action, including termination. During this "grace" period, Doe's compliance with Boeing's "acceptable attire" directive was to be monitored each day by Doe's direct supervisor. Doe was told that her attire would be deemed unacceptable when, in the supervisor's opinion, her dress would be likely to cause a complaint were Doe to use a men's rest room at a Boeing facility. No single article of clothing would be dispositive. Doe's overall appearance was to be assessed.

                as dresses, skirts, or frilly blouses.   Boeing applied its unwritten dress policy to all employees, which included 8 other transsexuals who had expressed a desire to have sex reassignment surgery while working for Boeing.   Both Doe's psychologist and treating physician testified that what Doe was allowed to wear at Boeing was sufficiently feminine for Doe to qualify for sex reassignment surgery
                

Doe's transsexualism did not interfere with her ability to perform her job duties as a software engineer at Boeing. There was no measurable decline in either her work group's performance or in Doe's own job performance. There was no testimony to indicate that Boeing's dress restrictions hindered Doe's professional development.

On November 4, 1985, the first day Doe worked after the grace period, Doe wore attire that her supervisor considered acceptable. Doe responded that she was disappointed that her attire was acceptable, and that she would "push it" the next day. By "push it", Doe testified that she meant she Doe filed a handicap discrimination action against Boeing pursuant to RCW 49.60, Washington's Law Against Discrimination (hereafter "Act"). The parties agreed to bifurcated proceedings and to a nonjury trial on the issue of liability. The trial court held that Doe was "temporarily handicapped" under its construction of WAC 162-22-040. The trial court further concluded that Boeing's actions reasonably accommodated Doe's condition and, thus, ruled in favor of Boeing on liability.

                would wear more extreme feminine attire.   The next day, Doe came to work wearing similar attire, but she included as part of her outfit a strand of pink pearls which she refused to remove.   This outfit was similar to one she had been told during the grace period was unacceptable in that the addition of the pink pearls changed Doe's look from unisex to "excessively" feminine.   Doe was subsequently terminated from her position at Boeing as a result of her willful violation of Boeing's directives
                

On appeal, Doe challenged the trial court's determination that Boeing reasonably accommodated her gender dysphoria. Boeing cross-appealed the trial court's characterization of gender dysphoria as a handicap under RCW 49.60. Finding that Doe was handicapped and that Boeing failed to accommodate her condition, the Court of Appeals reversed the judgment, entered judgment for Doe on the issue of liability, and remanded the case for determination of Doe's damages and attorney fees on appeal. Jane Doe v. Boeing Co., 64 Wash.App. 235, 823 P.2d 1159 (1992). We reverse the Court of Appeals.

ISSUES

This case presents two issues for review. First, is Jane Doe's gender dysphoria a "handicap" under RCW 49.60.180? We hold that Doe's gender dysphoria is not a handicap under the Act. The definition of "handicap" for enforcement purposes in unfair practice cases under RCW 49.60.180, as defined in WAC 162-22-040, requires factual findings of both (1) the presence of an abnormal condition, and (2) employer discrimination against the plaintiff because of that condition.

While gender dysphoria is an abnormal condition, we hold that Doe was not "handicapped" by her gender dysphoria because Boeing did not discharge her because of that condition.

Second, did Boeing have to provide Doe's preferred accommodation under RCW 49.60.180? We hold that the scope of an employer's duty to reasonably accommodate an employee's abnormal condition is limited to those steps necessary to enable the employee to perform his or her job. We hold that Boeing's actions met this standard and did not discriminate against Doe by reason of her abnormal condition.

ANALYSIS

I Background

Washington's Law Against Discrimination provides that it is an unfair practice for any employer "[t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap." RCW 49.60.180(2). The statute does not define "handicap". The statute delegates the authority to the Washington State Human Rights Commission (hereafter "Commission") to adopt and promulgate rules and regulations to carry out the Act's provisions. RCW 49.60.120(3). Pursuant to this delegation, the Commission promulgated WAC 162-22-040, which defines handicap for the purpose of determining whether an unfair practice under RCW 49.60.180 has occurred. The regulation provides that:

(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 ... 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.

(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 cognizable or diagnosable;

(ii) Exists as a record or history; or

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

WAC 162-22-040(1)(a), (b).

We adopted the Commission's definition of "handicap" in Phillips v. Seattle, 111 Wash.2d 903, 906-08, 766 P.2d 1099 (1989), which involved an unfair practice claim brought under RCW 49.60.180(2). We give the Commission's definition of "handicap" for unfair practice claims great weight since it is the construction of the statute by the administrative body whose duty it is to administer its terms. Phillips, 111 Wash.2d at 908, 766 P.2d 1099.

Under WAC 162-22-040(1)(a),...