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WPI 330.04 Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense

6A WAPRAC WPI 330.04Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.04 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.04 Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense
It is unlawful for an employer to [refuse to hire] [discharge] any person because of such person's [age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [sexual orientation] [honorably discharged veteran status] [military status]. It is a defense to(name of plaintiff)'s [refusal-to-hire] [discharge] claim if the requirement of(describe requirement)is a bona fide occupational qualification.
To establish that [his] [her] [its] requirement is a bona fide occupational qualification,(name of defendant)has the burden of proving both of the following propositions:
(1) That(name of defendant)applies the requirement uniformly to all [applicants for] [candidates for] [persons in] the job; [and]
(2) That all or substantially all individuals who fail to meet the requirement are unable to perform the job safely and efficientlyorthat excluding those individuals was essential to the purposes of the position.
If you find from your consideration of all of the evidence that(name of defendant)has proved that [his] [her] [its] decision [not to hire] [to discharge](name of plaintiff)was based on a bona fide occupational qualification, then you should find in favor of(name of defendant)[on this claim]. If, however, you find from your consideration of all the evidence that(name of defendant)has failed to prove either proposition (1) or (2), then your verdict should be in favor of(name of plaintiff)[on this claim].
Use this instruction as written when the defense of bona fide occupational qualification (BFOQ) is raised in a disparate treatment claim of failure-to-hire or discharge. If there are other claims or issues in the case, such as whether or not the plaintiff met non-discriminatory qualifications for the position, it may be necessary to modify this instruction or add other instructions.
Select the appropriate bracketed words or phrases.
This instruction is written to apply to disparate treatment claims of failure-to-hire, failure-to-promote, or failure-to-transfer in light of the specific language of RCW 49.60.180(1). See also RCW 49.60.180(4). The instruction is also written to apply to discharge cases in light of the holding in Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 128, 362 P.3d 974 (2015) (“the defense of a bona fide occupational qualification is available to the employer in a discharge case in addition to a refusal to hire case”). It can be modified to apply to other adverse actions that involve the bona fide occupational qualification (BFOQ) defense. In addition to the BFOQ defense, other related special defenses are available in age discrimination cases involving termination of employment. See RCW 49.60.205; RCW 49.44.090.
To establish a valid BFOQ defense, an employer must show that excluding members of the particular protected status group is essential to the purposes of the job or that all or substantially all persons in the class would be unable to efficiently perform the duties of the position and the essence of the operation would be undermined by hiring anyone in the excluded class. Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 357–58, 172 P.3d 688 (2007) (citing WAC 162-16-240 and Franklin Cnty. Sheriff's Off. v. Sellers, 97 Wn.2d 317, 646 P.2d 113 (1982)).
It is unclear whether race can ever be a BFOQ. See Blackburn v. State, 186 Wn.2d 250, 260, 375 P.3d 1076 (2016) (“RCW 49.60.180(3) allows limited exceptions for classifications only based on sex, not race,” and commenting that application of the exceptions of RCW 49.60.180(1) or (4) is “doubtful”). But see WAC 162-16-240(1) (providing examples that “illustrate how the commission applies BFOQs: (1) Where it is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress) …”)).
Although the typical BFOQ involves refusal to hire or discharge, the Washington Supreme Court has held that a staffing decision over a single weekend was subject to BFOQ analysis. See Blackburn, 186 Wn.2d at 260. Accordingly, the bracketed options may need to be expanded if the adverse action in a particular case differs from a refusal to hire or discharge.
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).
[Current as of November 2020.]
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