WPI 330.02 Employment Discrimination—Disparate Impact—Definition

Select or insert words or phrases and protected status as appropriate. Protected status may include but is not limited to age, creed, disability, marital status, national origin, race, religion, gender, sexual orientation, honorably discharged veteran status, military status, citizenship or immigration status, or use of a service animal by a person with a disability. RCW 49.60.020. Although the vast majority of cases are employment related, if the claim is not (i.e. against a union under RCW 49.60.190), then “employment” should not be used.

In a disparate impact case, use this instruction with WPI 330.03 (Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof). For a disparate treatment case, use WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof), instead of these instructions.

This instruction is designed for use in a variety of discrimination/disparate impact situations. Modify the instruction to define the protected group that is adversely impacted by the employer's facially-neutral policy or activity.

This instruction has been modified for this edition to allow for any type of protected status to be added to the instruction. This was done for purposes of simplifying the instruction. The parties can modify this instruction to suit the particular facts of the case at issue.

This instruction was further modified for this edition to clarify that the facially neutral policy is unlawful unless justified by business necessity (rather than “adequately justified” which had been in the previous version). This change makes the instruction consistent with case law which addresses an employer's defense of business necessity. See also WPI 330.03 (Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof).

This instruction is drawn largely from Shannon v. Pay 'N Save, 104 Wn.2d 722, 709 P.2d 799 (1985). The Washington Supreme Court acknowledged the continuing viability of a disparate impact analysis in Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 503, 325 P.3d 193 (2014).

In Shannon, the court explained that “[u]nlike disparate treatment, the disparate impact theory enables a plaintiff to address the consequences of seemingly objective employment practices by allowing the plaintiff to prevail in an employment discrimination suit without establishing discriminatory motive.” Shannon, 104 Wn.2d at 727. It “requires a plaintiff to prove: (1) a facially neutral employment practice, (2) falls more harshly on a protected class.” Shannon, 104 Wn.2d at 727. The term “neutral” in this context “refers to an employment practice that contains no reference to race or other protected classes.” Oliver v. Pac. Nw. Bell Telephone Co., Inc., 106 Wn.2d 675, 679 n.1, 724 P.2d 1003 (1986).

Subjective practices. The court in Shannon also held, citing federal authority interpreting Title VII of the Civil Rights Act of 1964, that a disparate impact theory is only to be applied to “an employment practice that includes objective treatment,” i.e., that does not “turn on discretionary decisions ….” Shannon, 104 Wn.2d at 733; see also Oliver, 106 Wn.2d at 679–80 (relying on Shannon). The Shannon court further held that “A plaintiff is not precluded from proving a case of disparate impact simply because a portion of an employee evaluation process involves subjective judgments.” Shannon, 104 Wn.2d at 732.

Religious practice claims. The Washington Law Against Discrimination (WLAD) also includes an implied requirement for employers to reasonably accommodate religious practices, thereby avoiding disparate impacts. Kumar, 180 Wn.2d at 500–01. Thus, the Washington Supreme Court has recognized a state law claim for failure to reasonably accommodate religious practices. Kumar, 180 Wn.2d at 496–501. Use WPI 330.40 (Employment Discrimination—Discrimination Based on Religion or Creed—Failure to Accommodate—Definition) for failure to reasonably accommodate religious practices claims. See also the Comment to WPI 330.03 (Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof), including employer's defense and plaintiff's rebuttal.

Claims not limited to actual or prospective employers. The Court of Appeals has held that disparate impact claims are not limited to actual or prospective employers. Howell v. Dep't of Soc. & Health Servs., 7 Wn.App.2d 899, 911, 436 P.3d 368 (2019). The plaintiff in Howell sued DSHS based on its rules and policies for maintaining records of “founded” filings of child abuse and neglect which had a disparate impact on the ability of Native Americans to find work. The Court of Appeals reversed the trial court's dismissal of this claim, holding that DSHS need not be plaintiff's employer to be subject to such a claim under the WLAD. Howell, 7 Wn.App.2d at 920.