Doe v. Boeing Co.

• Court: Washington Court of Appeals
• Writing for the Court: AGID; WEBSTER, Acting C.J., and COLEMAN
• Citation: Doe v. Boeing Co., 823 P.2d 1159, 64 Wn.App. 235 (Wash. App. 1992)
• Decision Date: 10 February 1992
• Docket Number: No. 26231-9-I
• Parties: , 58 Fair Empl.Prac.Cas. (BNA) 107, 58 Empl. Prac. Dec. P 41,336, 60 USLW 2575, 2 A.D. Cases 122, 2 NDLR P 283 Jane DOE, Appellant, Cross-Respondent, v. The BOEING COMPANY, a Delaware corporation, Respondent, Cross-Appellant.

Page 235

64 Wn.App. 235

823 P.2d 1159, 58 Fair Empl.Prac.Cas. (BNA) 107,

58 Empl. Prac. Dec. P 41,336, 60 USLW 2575,

2 A.D. Cases 122, 2 NDLR P 283

Jane DOE, Appellant, Cross-Respondent, v. The BOEING COMPANY, a Delaware corporation, Respondent Cross-Appellant.

No. 26231-9-I.

Court of Appeals of Washington Division 1.

Feb. 10, 1992.

As Amended March 20, 1992.

Review Granted June 4, 1992.

Lonnie Davis, Kelby D. Fletcher, Seattle, for appellant, cross-respondent.

Valerie L. Hughes, Perkins Coie, Bellevue, Rex D. Berry, Seattle, for respondent, cross-appellant.

AGID, Judge.

Jane Doe appeals the dismissal of her complaint for employment discrimination on the basis of handicap, contending that the trial court erred in concluding that The Boeing Company's ("Boeing") accommodation of her condition was reasonable. Respondent Boeing cross-appeals the trial court's characterization of gender dysphoria ¹ as a handicap under RCW 49.60. We reverse the trial court's dismissal of Doe's complaint and enter judgment for Doe on the issue of liability.

Jane Doe, born a biological male, was hired by Boeing as an associate engineer in 1978. At the time she was hired, Doe presented herself as a male. After attending support groups and counseling sessions for about 2 years, Doe was diagnosed as gender dysphoric in 1984. Thereafter, Doe informed her family and friends of her condition, changed her name to that of a woman both legally and on Boeing records, and began hormone and electrolysis treatments. Doe made numerous efforts to inform and educate her coworkers and Boeing management about her condition and consequent needs, providing Boeing with letters from her physician, psychologist, and Dr. Biber, her surgeon. In March 1985, Doe informed Boeing that she ultimately planned to have sex reassignment surgery.

Established standards for the treatment of transsexuals contemplating gender reassignment surgery (the Harry Benjamin International Gender Dysphoria Standards ("Benjamin Standards")) require that surgery be preceded by a period of at least 12 months during which the patient lives full-time in the social role of the opposite sex. Doe felt ready to begin the pre-operative stage of her transition from male to female in June 1985. In conjunction with this step, on June 2, 1985, Doe informed Boeing that she intended to begin wearing more feminine clothing. While Doe received no specific instructions with respect to dress from her physician or psychologist, she discussed such matters generally with Dr. Biber. Doe felt that this step was necessary to avoid dishonesty in the manner in which she presented herself to the world. Under the Benjamin Standards, outward assumption of a female identity is necessary to avoid further role confusion and psychological damage after the surgery has been performed.

As of 1985, Boeing had no written policy with respect to accommodation of transsexual employees. While Boeing officials testified that Boeing had an unwritten policy that employees were to present themselves according to their anatomical gender at the most recent date of hire, all employees were in fact permitted to wear unisex clothing. Boeing management thus informed Doe that she was not permitted to wear dresses, skirts, or frilly blouses; however, no other clothing was specifically identified as prohibited under company policy.

At no time did Doe ever wear a dress, skirt, or frilly blouse. Doe's immediate work group was supportive of her transition, and there were no complaints about Doe's attire. On October 15, 1985, however, after a complaint was made with respect to Doe's use of a women's rest room, ² Boeing issued a Corrective Action Memo informing Doe that she was not permitted to use the women's rest rooms or to dress as a female, and that to do so might result in her dismissal or in other disciplinary measures. Boeing management established a test to determine whether the clothing she wore was excessively feminine; i.e., she was not permitted to wear any clothing that would cause a complaint if she wore it into the men's rest room. To determine whether Doe was in compliance with this standard, her immediate supervisor went to her desk each day to determine whether her "total appearance" was acceptable and made notes about what she was wearing. On November 5, 1985, Doe's supervisor determined that Doe's attire was unacceptable. Specifically, he objected to a pink pearl necklace. Doe's attire on that day otherwise passed the test. Doe was terminated for dressing in feminine attire on that date. ³

A stipulated order bifurcating the issues of liability and damages was entered at trial. This appeal arises from the trial court's decision on liability. The trial court held that Doe was temporarily handicapped within the meaning of WAC 162-22-040 and that "[t]he conflict occasioned in the workplace by plaintiff's preparation for sex reassignment surgery" raised the need for an accommodation by Boeing. The court declined, however, to hold that gender dysphoria is always a handicap under Washington law. It concluded that Boeing offered an accommodation and that the accommodation was reasonable. It therefore dismissed Doe's complaint with prejudice in its entirety.

I. GENDER DYSPHORIA AS A HANDICAP

We first address the question of whether the trial court erred in characterizing gender dysphoria as a handicap within the purview of RCW 49.60. The material facts in this case are essentially undisputed. The parties disagree on the legal effect of those facts. The manner in which a statute applies to a given set of facts is a question of law that we review de novo. Lobdell v. Sugar 'N Spice, Inc., 33 Wash.App. 881, 887, 658 P.2d 1267, review denied, 99 Wash.2d 1016 (1983); State v. Anderson, 51 Wash.App. 775, 778, 755 P.2d 191 (1988) (an appellate court may differ from the trial court with respect to the legal effect to be derived from undisputed facts).

The Washington Law Against Discrimination (RCW 49.60) 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.

RCW 49.60.180(2). While the statute does not define "handicap," it delegates authority to adopt and promulgate rules and regulations to carry out its provisions to the Washington State Human Rights Commission ("the Commission"). RCW 49.60.120(3). Pursuant to that delegation of authority, the Commission adopted the following definition of "handicap" for purposes of determining whether an unfair practice 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 ... [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.

(Emphasis in original.) WAC 162-22-040(1); Phillips v. Seattle, 111 Wash.2d 903, 907, 766 P.2d 1099 (1989). ⁴ The Commission's definition of handicap for unfair practice claims is entitled to great weight as the construction given the statute by the administrative body whose duty it is to administer its terms. Phillips, 111 Wash.2d at 908, 766 P.2d 1099; Holland v. Boeing Co., 90 Wash.2d 384, 389, 583 P.2d 621 (1978). Further, the statutory protections against discrimination are to be liberally construed and their exceptions narrowly confined. RCW 49.60.020; Phillips, 111 Wash.2d at 908, 766 P.2d 1099. While the definition contained in WAC 162-22-040(1) is somewhat problematic in that, if literally construed, it would permit virtually anyone with an "abnormal" condition to claim handicap, we need not reach the question whether the regulation is overbroad. This case presents a medically cognizable condition with a prescribed course of treatment. We therefore hold that gender dysphoria is a handicap within the purview of RCW 49.60.180(2) for purposes of determining whether an unfair practice has occurred. ⁵

Under RCW 49.60.180(2), an unfair practice occurs when an employer discharges an employee on the basis of handicap. Boeing records reflect that Doe was terminated solely for having dressed in feminine attire. Doe's choice of attire was a direct product of the course of treatment indicated by the Benjamin Standards for her gender dysphoric condition. The trial court properly ruled that, by terminating Doe's employment solely on this basis, Boeing engaged in an unfair practice within the meaning of RCW 49.60.180(2).

II. REASONABLE ACCOMMODATION

Since we have determined that gender dysphoria is a handicap within the purview of RCW 49.60.180(2), the question arises whether any accommodation of Doe's handicap was made by Boeing and, if so, whether that accommodation was reasonable. The trial court held that Boeing did accommodate Doe's need to dress in feminine attire in the following manner:

Boeing allowed plaintiff to dress in a unisex fashion during the period in which plaintiff prepared for sex reassignment surgery, and offered to allow her to dress completely as a female following sex reassignment surgery. ⁶

Affording Doe the same rights as other non-gender dysphoric employees misses the point of the statute. RCW 49.60 requires an employer to take positive steps to accommodate an employee with a handicap or disability. Holland, 90 Wash.2d at 388-389, 583 P.2d 621. Where a handicap is involved, discrimination results from an employer's failure to take into account a person's unique characteristics. Thus, identical treatment may be the source of...