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WPI330.03Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof

6A WAPRAC WPI 330.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.03 Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof
To recover on [his] [her] claim of discrimination based on disparate impact,(name of plaintiff)has the burden of proving the following proposition:
(1) (Name of defendant)[engaged in a practice] [used an overall selection process] [applied a preference] [imposed a requirement] [(other adverse action)] that has a disparate impact on [individuals of a particular race] [individuals of a particular creed] [women] [men] [individuals 40 or older] [individuals with a particular disability] [individuals of a particular religion] [individuals of a particular national origin] [individuals with a particular marital status] [individuals of a certain sexual orientation] [honorably discharged veterans] [individuals with a particular military status]. [(Name of plaintiff)can meet [his] [her] burden by showing that either an overall selection process or a given [practice] [preference] [requirement] has a disparate impact.]
[On this claim,](name of plaintiff)does not have to prove that(name of defendant)intended to discriminate on the basis of [age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [honorably discharged veteran status] [military status] or treat [individuals of(name of plaintiff's)race] [men] [women] [individuals 40 or older] [individuals with(name of plaintiff's)disability] [individuals of(name of plaintiff's)religion] [individuals of(name of plaintiff's)national origin] [individuals of the same marital status as(name of plaintiff)] [individuals of(name of plaintiff's)sexual orientation] [honorably discharged veterans] [individuals having(name of plaintiff's)military status] more harshly than others.
If(name of plaintiff)has failed to prove proposition (1), then your verdict should be for(name of defendant)[on this claim].
If(name of plaintiff)has proved proposition (1), then(name of defendant)has the burden of producing evidence that:
(2) the [practice] [preference] [requirement] [overall selection process] [(other adverse action)] is an accurate measure of ability to perform fundamental requirements of the job.
If(name of plaintiff)has proved proposition (1) and(name of defendant)has failed to produce evidence as to proposition (2), then your verdict should be for(name of plaintiff)[on this claim].
If(name of plaintiff)has proved proposition (1) and(name of defendant)has produced evidence as to proposition (2), then(name of plaintiff)has the burden of proving that:
(3) there are other equally suitable alternatives that do not have as harsh an impact on [individuals of(name of plaintiff's)race] [men] [women] [individuals 40 or older] [individuals with(name of plaintiff's)disability] [individuals of(name of plaintiff's)religion] [individuals of(name of plaintiff's)national origin] [individuals of the same marital status as(name of plaintiff)] [individuals of(name of plaintiff's)sexual orientation] [honorably discharged veterans] [individuals having(name of plaintiff's)military status].
If(name of plaintiff)has proved proposition (1) and(name of defendant)has produced evidence as to proposition (2), and(name of plaintiff)has then failed to prove proposition (3), then your verdict should be for(name of defendant)[on this claim]. If(name of plaintiff)has proved proposition (3), then your verdict should be for(name of plaintiff)[on this claim].
NOTE ON USE
Use this instruction with WPI 330.02 (Employment Discrimination—Disparate Impact—Business Necessity—Definition). See the Note on Use for WPI 330.02 (Employment Discrimination—Disparate Impact—Business Necessity—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 (Discrimination Based on Religion or Creed—Failure to Accommodate—Defense and Undue Hardship) 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—Disparate Treatment—Burden of Proof).
COMMENT
See the Comment to WPI 330.02 (Employment Discrimination—Disparate Impact—Business Necessity—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 (Disability Discrimination—Treatment—Burden of Proof) and WPI 330.31 (Disability Discrimination—Definition of Disability—Disparate Treatment Cases).
Formerly, once the plaintiff established 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 v. Pay 'N Save, 104 Wn.2d 722, 727, 709 P.2d 799 (1985) (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)). “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 v. Pay 'N Save, 104 Wn.2d at 727.
“[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 v. Pay 'N Save, 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 v. Pay 'N Save, 104 Wn.2d at 731.
In Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 356, 172 P.3d 688 (2007), the court held that even though the burden of production shifts to the employer to produce evidence of a business necessity, the burden of persuasion always remains with the employee. The court thus rejected arguments that business necessity is an affirmative defense for the employer. Hegwine v. Longview Fibre Co., 162 Wn.2d at 356. For further discussion, see the Comment to WPI 330.02 (Employment Discrimination—Disparate Impact—Business Necessity—Definition).
In this regard, Washington law differs from federal law, which places the burden of proving business necessity on the employer. See 42 U.S.C. § 2000e-2(k). The federal statute also provides that the plaintiff may make a showing of an alternative non-discriminatory practice, but now must also show that the defendant “refuses to adopt such alternative employment practice.” 42 U.S.C. § 2000e-2(k)(1)(A)(ii) and (1)(C).
[Current as of September 2018.]
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