Holland v. Boeing Co.

Citation90 Wn.2d 384,583 P.2d 621
Decision Date17 August 1978
Docket NumberNo. 44878,44878
Parties, 18 Fair Empl.Prac.Cas. (BNA) 37, 17 Empl. Prac. Dec. P 8595, 1 A.D. Cases 30 Raymond W. HOLLAND, Respondent, v. The BOEING COMPANY, a corporation, Appellant.
CourtUnited States State Supreme Court of Washington

Perkins, Coie, Stone, Olsen & Williams, Steven Bell, Seattle, for appellant.

Hafer, Cassidy & Price, Hugh Hafer, Seattle, for respondent.

HAMILTON Justice.

Appellant Boeing Company seeks review of a judgment in favor of respondent Holland. Appellant was found to have violated RCW 49.60.180 by discriminating against respondent, a handicapped employee. We affirm the trial court's judgment.

Respondent, a 45-year-old man, has suffered from cerebral palsy since birth. His illness manifests itself in spontaneous muscular contractions of various portions of his body. In spite of this handicap, respondent has been gainfully employed with appellant for over 20 years. He progressed in employment from a Grade 5 Storekeeper to a Grade 9 Electronics Technician. As a technician, respondent analyzed electronics systems, performed routine checks on equipment, and made certain repairs. His handicap did not prevent him from adequately performing these tasks.

Sometime in 1974 appellant selectively reassigned respondent to an equal grade position in an area known as Facilities Support. On this new assignment, more manual dexterity was required of respondent than was required in the technician assignment. In addition, the work in the Facilities Support area included certified soldering which respondent was incapable of performing.

After the transfer to the Facilities Support area, respondent's work performance was closely monitored. As it became apparent he was not able to carry out his new assignments with an acceptable degree of competence, letters documenting his lack of ability were written and placed in his personnel file. He was given dexterity tests, the results of which further evidenced his deficiencies. Eventually, he was approached by a supervisor about the possibility of reassignment and reduction in grade.

Respondent, having spent almost 22 years advancing himself, expressed opposition to the downgrade. Appellant, in response to this opposition, made an effort to place him in an equal grade position. It circulated his personnel folder among various supervisors. The folder, however, then contained sufficient negative material to discourage supervisory interest in respondent. When efforts to place him in an equal grade position were unsuccessful, appellant offered him a Grade 5 Storekeeper position. Respondent initially refused this offer, but upon reconsideration accepted. This lawsuit followed.

Respondent's case was tried to the court, sitting without a jury. His theory was that appellant committed an unfair practice by reassigning him to a job it knew, or reasonably should have known, he could not perform. The reassignment led directly to his downgrade, which he claimed was also an unfair practice.

Appellant denied any unfairness and contended it was not required to expend special effort on behalf of respondent or other handicapped employees.

The court, after hearing extensive testimony, determined that appellant was required by the terms of RCW 49.60 to make Reasonable accommodation for handicapped employees. Using this standard, it concluded appellant's actions with respect to respondent constituted a violation of the law against discrimination, RCW 49.60.

Appellant makes five assignments of error. The first three relate to the reasonable accommodation standard and the sufficiency of evidence in support of the court's findings of fact and conclusions of law in this respect. Appellant's fourth assignment of error is to an award of attorney fees. The fifth is to an award for vacation time expended by respondent in the course of this lawsuit.

We have considered each of appellant's arguments in support of its assignments of error.

Appellant first argues the trial court erred by interpreting RCW 49.60 to require that employers make reasonable accommodation to the handicapped employee when reassigning personnel. The proper interpretation of RCW 49.60.180 as it relates to handicap discrimination is an issue of first impression.

RCW 49.60.180 is part of a comprehensive law by which the legislature declared it is an individual's Civil right to be free from various types of discrimination. RCW 49.60.030. The express purpose of the law is the elimination of discrimination. RCW 49.60.010. And the legislature has directed liberal construction of the provisions of RCW 49.60 in order to accomplish its purpose. RCW 49.60.020.

In 1973, the legislature amended the law against discrimination, RCW 49.60, to include a prohibition against discrimination in employment because of physical, mental, or sensory handicaps. It recognized that the disabled, like many minority groups, face serious problems in seeking employment. Laws of 1973, 1st Ex.Sess., ch. 214, § 1, p. 1648. Comment, RCW 49.60: A Discriminating Look, 13 Gonzaga L.Rev. 190 (1977). Legislation dealing with equality of sex or race was premised on the belief that there were no inherent differences between the general public and those persons in the suspect class. The guarantee of equal employment opportunities for the physically handicapped is far more complex. 1

The physically disabled employee is clearly different from the nonhandicapped employee by virtue of the disability. But the difference is a disadvantage only when the work environment Fails to take into account the unique characteristics of the handicapped person. See Potluck Protections for Handicapped Discriminatees: The Need to Amend Title VII to Prohibit Discrimination on the Basis of Disability, 8 Loy.Chi.L.J. 814 (1977). Identical treatment may be a source of discrimination in the case of the handicapped, whereas Different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities.

RCW 49.60 contains a strong statement of legislative policy. See RCW 49.60.010 and .030. When, in 1973, the legislature chose to make this policy applicable to discrimination against the handicapped, we believe it is clear it mandated positive steps be taken. An interpretation to the contrary would not work to eliminate discrimination. It would instead maintain the Status quo wherein work environments and job functions are constructed in such a way that handicaps are often intensified because some employees are not physically identical to the "ideal employee".

Further, the concept of definitive relief, by means of a Reasonable accommodation to the handicapped employee, is found in an administrative regulation issued pursuant to RCW 49.60. WAC 162-22-080. 2 The regulation, as the construction of the statute by those whose duty it is to administer its terms, is entitled to be given great weight. Hama Hama Co. v. Shorelines Hearings Bd., 85 Wash.2d 441, 536 P.2d 157 (1975).

Thus, we hold the trial court correctly interpreted the meaning of RCW 49.60.180(1), (2), and (3). 3 It is an unfair practice for an employer to fail or refuse to make reasonable accommodations to the physical limitations of handicapped employees.

In adopting this standard, we reject appellant's suggestion that we follow the de minimus effort test set forth in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Hardison did not involve a handicapped individual; rather, it involved religious discrimination. Thus, its test was defined in a case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1970). Congress has not chosen to prohibit handicap discrimination under Title VII. Instead, it has enacted the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (Supp. V, 1975), to secure employment opportunities for the handicapped. 4 Congress recognized, as do we, that discrimination on the basis of handicap is different in many respects from other types of employment discrimination. See Wright, Equal Treatment of the Handicapped by Federal Contractors, 26 Emory L.J. 65 (1977). Accordingly, we are not persuaded by appellant's contention on this score.

Appellant next argues that even if Washington law requires reasonable accommodation to the handicapped, reversal is warranted since there is No evidence to support the trial court's findings and conclusions that it failed to accommodate respondent.

Where the trial court has weighed the evidence our review is limited to determining whether the findings are supported by substantial evidence and, if so, whether the findings in turn support the trial court's conclusions of law and judgment. Morgan v. Prudential Ins. Co. of America,86 Wash.2d 432, 545 P.2d 1193 (1976). Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise. In re Snyder, 85 Wash.2d 182, 532 P.2d 278 (1975).

The record in this case reflects appellant was aware of respondent's disability and physical limitations. In fact, some years prior to this litigation respondent had attempted to receive certification in soldering and was unable to do so. Further, the record contains substantial testimony regarding appellant's transfer procedures. Several options were potentially available to appellant which would have accommodated respondent. The appellant, however, chose not to accommodate him. It shifted respondent to a position in which the trial court found it should have known he could not succeed. It then downgraded him. The trial court concluded these actions were unfair practices. The challenged findings of fact upon which the court's conclusions rest are supported by the record, and we cannot substitute our judgment for that of the trial court. Seattle-First Nat'l Bank v. Brommers, 89 Wash.2d 190, 199, 570 P.2d 1035 (1977).

Appellant further contends the evidence presented by respondent does...

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