Franklin County Sheriff's Office v. Sellers

• Decision Date: 09 December 1980
• Docket Number: No. 3254-III-0,3254-III-0
• Citation: 621 P.2d 751,27 Wn.App. 797
• Parties: , 25 Empl. Prac. Dec. P 31,746 FRANKLIN COUNTY SHERIFF'S OFFICE, Appellant, v. Betty P. SELLERS, complainant, Washington State Human Rights Commission, Respondent.
• Court: Washington Court of Appeals

Page 797

27 Wn.App. 797

621 P.2d 751, 25 Empl. Prac. Dec. P 31,746

FRANKLIN COUNTY SHERIFF'S OFFICE, Appellant, v. Betty P. SELLERS, complainant, Washington State Human Rights

Commission, Respondent.

No. 3254-III-0.

Court of Appeals of Washington, Division 3, Panel Two.

Dec. 9, 1980.

C. J. Rabideau, Pros. Atty., George E. Heidlebaugh, Deputy Pros. Atty., Pasco, for appellant.

Ivan C. Rutledge, Columbus, Ohio, for amicus curiae.

Morton M. Tytler, State Human Rights Commission, Olympia, for respondent.

GREEN, Chief Judge.

Franklin County appeals a judgment awarding damages for discriminatory employment practices, in violation of RCW 49.60.180. 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 counselor in the Franklin County Sheriff's office. She telephoned the sheriff's office and informed Shirley Billingsley, who was the director of the work-release program and the only counselor, that she 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 position became available. Instead of making an application, Mrs. Sellers filed a complaint with the Washington State Human Rights Commission, alleging discrimination in employment based on sex. A tribunal of the Commission found that limiting the available counselor position to a male was discriminatory and was not a bona fide occupational qualification (BFOQ) exempt from the Act. Mrs. Sellers was awarded, in addition to other relief, $7200 representing the amount she would have received had she been employed by the County. The County appealed the Commission's order and the Superior Court 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 independent of the Commission's decision. RCW 34.04.130(6)(d); The Daily Herald Co. v. The Department of Employment Security, 91 Wash.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 construing it are persuasive authority for the construction of our State Act. RCW 49.60; Ellingson v. Spokane Mortgage Co., 19 Wash.App. 48, 54, n.5, 573 P.2d 389 (1978). ¹

The BFOQ exemption is found in RCW 49.60.180:

It is an unfair practice for any employer:

(1) To refuse to hire any person because of such person's ... sex ... unless based upon a bona fide occupational qualification (BFOQ) ...

(Italics ours.) The Act does not define "BFOQ". However, the Human Rights Commission, in WAC 162-16-020(2), has recognized that the BFOQ exemption may apply:

(a) Where a person's ... sex ... will be essential to, or will contribute to, the accomplishment of the purposes for which the person is hired.

By comparison, the federal Act, in 42 U.S.C. § 2000e-2(e) (1976), defines BFOQ as an employment practice that is

reasonably necessary to the normal operation of that particular business 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 synonymous.

The issue presented, then, is whether limiting the available counselor position to male applicants was "reasonably necessary" to the successful operation of the work-release program in Franklin County. The County has the burden of proving the exemption. Rose v. Hanna Mining Co., 94 Wash.2d 307, 311-13, 616 P.2d 1229 (1980).

Mrs. Billingsley, director of the Franklin County Work Release program, testified that she was employed as a counselor 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 assimilate them into the community. To this end, she counseled the inmates, arranged for employment interviews or training programs, and transported the female inmates for the purpose of completing those arrangements. When further mental health counseling was needed, or medical or dental care was required, she arranged for an appointment and then transported the female inmates to the appropriate place. As part of her duties, she often searched the female inmates for contraband upon their return from work.

When Mrs. Billingsley was first employed, 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, transport them to interviews, the mental health center, the doctor or dentist. As a result, 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 counselor; however, a male counselor would have been more beneficial to her and to the needs of the inmates.

Charles Pierson, Jr., who was responsible for the Columbia Mental Health Center'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 involvement:

There was a good number of clients, and Shirley (Billingsley) needed my support or the other male counselors' support that was available at that time in order to work with these individuals. Many of the people in jail are very much unskilled as relating to people in general, and many of those manipulative and concealing when they deal with a woman. So it was necessary in many cases, for Shirley to refer mostly males to myself ...

(Italics ours.) He stated that the establishment of a relationship with an inmate is a crucial part of the counseling 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 possibly hope to help him change. Once that relationship is established, then, you can work at a process of confronting an individual with his maladaptive or unsuccessful or illegal behavior. That, then, gives you the end and the opportunity to work towards the behavior change 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:

In some cases, it's possible for a female to relate to some female(s) and impossible for a female to relate 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 female, 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 a male. The Center's jail services project 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 female counselor in the sheriff's work-release department would create a redundancy.

Dr. William D. Sherman, a physician and psychiatrist at the Columbia Mental Health Center, who was familiar with the Franklin County work-release program, supported the views expressed by Mr. Pierson. He expressed a very strong opinion supporting the validity of the sheriff's request 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 available because the work release program depends heavily on the counseling that goes on and the guidance that goes on from the staff to the people in that program. Many people grow up without an adequate male 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 modeled to both male and female people that are in the work release program. This is a part of the counseling help that can go on in a program like this....

It's my opinion that the program would be seriously...