WPI 330.03 Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof

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.

Use this instruction with WPI 330.02 (Employment Discrimination—Disparate Impact—Definition). See the Note on Use for WPI 330.02 (Employment Discrimination—Disparate Impact—Definition) regarding the bracketed phrases and “other adverse action.”

Use the bracketed phrase “on this claim” when multiple claims are before the jury and this pattern instruction does not apply to them all.

Use WPI 330.42 (Employment Discrimination—Discrimination Based on Religion or Creed—Failure to Accommodate—Defense of Undue Hardship—Burden of Proof) for a failure to reasonably accommodate religious practices claim.

For a discussion of honorably discharged veteran status and military status, see the Comment to WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof).

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 the plaintiff's and defendant's respective burdens of proof to conform to the Supreme Court's holding in Shannon v. Pay 'N Save Corp., 104 Wn.2d 722, 731, 709 P.2d 799 (1985).

See the Comment to WPI 330.02 (Employment Discrimination—Disparate Impact—Definition).

In some cases, there may be a question of fact as to whether the plaintiff falls within one of the protected categories. This is most likely to occur in a disability case, although there may be factual issues related to other categories as well. In such cases, the burden of proof instruction will have to be modified to indicate that the plaintiff must prove that he or she is within the protected category or class. See, e.g., WPI 330.32 (Employment Discrimination—Disability Discrimination—Disparate Treatment—Burden of Proof) and WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability).

Once the plaintiff establishes a prima facie case of discrimination on the basis of a disparate impact theory, “the burden shifts to the defendant to show that the challenged requirement has a ‘manifest relationship’ to the position in question.” Shannon, 104 Wn.2d at 727 (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)).

Fey v. State, 174 Wn.App. 435, 449, 300 P.3d 435 (2013). “If the employer meets this burden, the plaintiff may still prevail by showing that other less discriminatory alternatives can equally serve the employer's legitimate business requirements.” Shannon, 104 Wn.2d at 727; see also Fahn v. Cowlitz Cnty., 93 Wn.2d 368, 380, 610 P.2d 857 (1980), amended, 621 P.2d 1293 (1981).

“[T]o establish a business necessity defense an employer must prove by professionally accepted measures that the hiring or promotion test utilized accurately predicts or significantly correlates with the fundamental requirements of job performance ….” Shannon, 104 Wn.2d at 731. According to the court, this reaffirms the tenet that “discriminatory preference occurs when an objective measurement unrelated to job performance results in the under-representation of a protected class.” Shannon, 104 Wn.2d at 731; see also Wash. v. Horning Bros., LLC, 339 F.Supp.3d 1106, 1132 (E.D. Wash. 2018) (“[A] plaintiff establishes a prima facie violation by showing that an employer uses ‘a particular employment practice that causes a disparate impact on the basis of … sex. …’” (citing Ricci v. DeStefano, 557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009))). An employer may defend “by demonstrating that the practice is job related for the position in question and consistent with business necessity.” Horning Bros., 339 F.Supp.3d. at 1132 (citation omitted). A plaintiff may still succeed by showing that the employer refused to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs. Horning Bros., 339 F.Supp.3d. at 1132 (citation omitted).