Fahn v. Cowlitz County

• Citation: 610 P.2d 857,93 Wn.2d 368
• Decision Date: 24 April 1980
• Docket Number: No. 45842,45842
• Parties: , 39 Fair Empl.Prac.Cas. (BNA) 387, 23 Empl. Prac. Dec. P 30,986 Michael L. FAHN and Day D. Parkhill, Respondents, v. COWLITZ COUNTY, Washington, and Civil Service Commission of Cowlitz County, Washington, Appellants, Washington State Human Rights Commission, Respondent.
• Court: United States State Supreme Court of Washington

Page 368

93 Wn.2d 368

610 P.2d 857, 39 Fair Empl.Prac.Cas. (BNA) 387,

23 Empl. Prac. Dec. P 30,986

Michael L. FAHN and Day D. Parkhill, Respondents, v. COWLITZ COUNTY, Washington, and Civil Service Commission of

Cowlitz County, Washington, Appellants,

Washington State Human Rights Commission, Respondent.

No. 45842.

Supreme Court of Washington, En Banc.

April 24, 1980.

Henry R. Dunn, Pros. Atty., Kelso, for appellants.

Walstead, Mertsching, Husemoen, Donaldson & Barlow, John A. Barlow, Longview, Slade Gorton, Atty. Gen., Sharon E. Shaw, Asst. Atty. Gen., Washington State Human Rights Commission, Morton M. Tytler, Asst. Atty. Gen., Olympia, for respondents.

WILLIAMS, Justice.

This is a direct appeal by the Cowlitz County Civil Service Commission from a summary judgment based on the commission's violation of an administrative regulation promulgated by the Washington State Human Rights Commission. The Civil Service Commission challenges both the validity of the regulation and the trial court's award of damages and attorney fees to respondents Michael L. Fahn and Day D. Parkhill. We find a portion of the regulation to fall outside the delegated authority of the Human Rights Commission and therefore reverse the trial court's order of summary judgment and the award of damages and attorney fees.

Appellant Cowlitz County Civil Service Commission is an agency charged with the duty to establish a merit system of employment for county deputy sheriffs, pursuant to RCW 41.14. Among appellant's rules and regulations is a requirement that applicants for the position of deputy sheriff be at least 5'9 tall. ¹ Respondents are both white males who desire to become deputy sheriffs and who are less than 5'9 in height. For reasons not made clear by the record, respondent Fahn was permitted to take the examination for deputy sheriff. However, he was subsequently removed from the eligibility list because he could not meet the height requirement. Parkhill was not permitted to sit for the examination.

Respondents then brought an action for declaratory judgment that the height regulation constituted a violation of RCW 49.60.180 and WAC 162-12-140(3)(g). ² They also sought a writ of mandamus ordering appellant to (1) cease enforcement of its height requirement, (2) restore respondent Fahn to his place on the eligibility list, and (3) permit respondent Parkhill to sit for the next scheduled examination. Finally, they sought damages, including lost wages in the amount respondents would have earned but for the allegedly void height regulation, and attorney fees.

Appellant asserted in its answer that the height minimum was a valid job requirement, that Fahn and Parkhill were not members of a protected minority, and that WAC 162-12-140(3)(g) was void because it exceeded the rule making authority granted to the Human Rights Commission by the anti-discrimination statute, RCW 49.60. Thereafter, the Human Rights Commission intervened by filing a complaint seeking among other relief a declaratory judgment that WAC 162-12-140(3)(g) was valid as adopted.

Upon motions by respondents and the Human Rights Commission, the trial court granted summary judgment. The judgment was based on the conclusion that WAC 162-12-140(3)(g) constituted Washington law on employment standards regarding height and weight. Moreover, the court found on stipulation of counsel that three persons under 5'9 tall were employed as deputy sheriffs in Cowlitz County at the time of judgment and that they had performed and were performing their duties satisfactorily. Since appellant could not prove consistently with the stipulations that no person under the height requirement could do the work, the court found it had violated the regulation as a matter of law.

At a subsequent hearing, the court awarded damages of $1,043.50 to Fahn. Parkhill could not show damages and did not claim them. The court also awarded $2500 in attorney fees, plus costs, to respondents and ordered appellant to restore Fahn to his place on the eligibility list and to permit Parkhill to sit for the next Civil Service examination.

I.

Since we are reviewing an order of summary judgment we must make the same inquiry as the trial court made. Sarruf v. Miller, 90 Wash.2d 880, 883, 586 P.2d 466 (1978); Highline School Dist. No. 401 v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976). We must decide whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Sarruf, 90 Wash.2d at 883, 586 P.2d 466. Teagle v. Fischer & Porter Co., 89 Wash.2d 149, 152, 570 P.2d 438 (1977).

In this action brought under RCW 49.60.180(4) and WAC 162-12-140(3)(g), the only facts material to respondents' claim were their height, the presence on the sheriff's force of three deputies under 5'9 in height, and appellant's admitted inability to show that no one under 5'9 could perform the duties of the job. All of these facts were undisputed, and the trial court correctly concluded that no genuine issue existed as to any material fact. Nonetheless, we cannot uphold the summary judgment unless we find that the facts require it as a matter of law. Sarruf, 90 Wash.2d at 883, 586 P.2d 466.

The validity of WAC 162-12-140(3)(g), on which the judgment was based, is at the heart of the dispute between these parties. Appellant Civil Service Commission challenges the authority of the Washington State Human Rights Commission to promulgate the regulation, which declares that a preemployment inquiry regarding height and weight is an unfair practice under RCW 49.60.180(4) unless the inquiry is based on actual job requirements. Moreover, a certain height or weight cannot be considered a job requirement unless the employer can show that no employee with the ineligible height or weight could do the job.

The questions we face then are: whether the legislature intended to grant to the Human Rights Commission the authority to determine that a preemployment inquiry regarding height and weight is an unfair employment practice under RCW 49.60.180(4); and, if so, whether the present regulation makes that determination in an acceptable manner.

A.

It is well settled that an administrative agency is limited to the powers and authority granted to it by the legislature. Washington Water Power Co. v. State Human Rights Comm'n, 91 Wash.2d 62, 65, 586 P.2d 1149 (1978); Cole v. State Util. & Transp. Comm'n, 79 Wash.2d 302, 485 P.2d 71 (1971). The legislature may, however, delegate to an administrative agency the power to determine a fact or state of things upon which application of the law is made to depend, provided the law enunciates standards which may guide the administrative officers or board. Washington Water Power Co., 91 Wash.2d at 65-66, 586 P.2d 1149; O'Connell v. Conte, 76 Wash.2d 280, 285, 456 P.2d 317 (1969). Moreover, we have frequently declared that administrative rules adopted pursuant to a legislative grant of authority are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the statute being implemented. Washington Water Power Co., 91 Wash.2d at 68, 586 P.2d 1149; Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976).

In determining the nature of the authority delegated to the Human Rights Commission, we must first examine the purposes for which the law against discrimination was enacted. The statement of purpose, RCW 49.60.010, declares that discrimination because of "race, creed, color, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical handicap" is a matter of state concern. Accordingly, a state agency, the Human Rights Commission, has been established "with powers with respect to elimination and prevention of discrimination in employment . . ." and given "general jurisdiction and power" for those purposes. RCW 49.60.010. The legislature has further directed that the provisions of the law against discrimination are to be construed liberally to accomplish the purposes of the act. RCW 49.60.020.

There is little doubt that the Human Rights Commission may prohibit preemployment inquiries which specifically discriminate against one of the protected categories set forth in RCW 49.60.180(4). The language of the statute expressly prohibits such inquiries, and the parties do not dispute that preemployment inquiries relating to race, age, sex, and other enumerated categories may be validly prohibited. See WAC 162-12-140(3)(a), (f), (h), (k), (o), (q), and (s). Moreover, our decisions interpreting RCW 49.60.180(4) make it clear that employers may not discriminate against potential employees based on the factors enumerated in the statute. Washington Water Power Co., 91 Wash.2d at 69, 586 P.2d 1149; Sarruf, 90 Wash.2d at 884, 586 P.2d 466; Stieler v. Spokane School Dist. No. 81, 88 Wash.2d 68, 558 P.2d 198 (1977). See also Barnes v. Washington Natural Gas Co., 22 Wash.App. 576, 591 P.2d 461 (1979); Davis v. Department of Labor & Indus., 22 Wash.App. 487, 589 P.2d 831 (1979); Ellingson v. Spokane Mortgage Co., 19 Wash.App. 48, 573 P.2d 389 (1978); Albertson's, Inc. v. State Human Rights Comm'n, 14 Wash.App. 697, 544 P.2d 98 (1976). However, the question in this case concerns the Human Rights Commission's authority to declare unfair those inquiries which, although neutral on their face, may have a disparate impact on a group or groups protected by the statute.

We note at the outset that there are no Washington cases on the disparate impact of facially neutral employment standards on protected classes. This has been an active area in the federal courts, however, where frequent litigation has arisen under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (1976). ³ See, e. g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (197...