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WPI 330.32 Employment Discrimination—Disability Discrimination—Disparate Treatment—Burden of Pr...

6A WAPRAC WPI 330.32Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.32 (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 330.32 Employment Discrimination—Disability Discrimination—Disparate Treatment—Burden of Proof

Discrimination in employment on the basis of disability is prohibited.

To establish [his] [her] claim of discrimination on the basis of disability,(name of plaintiff)has the burden of proving each of the following propositions:

(1) That [he] [she] [has a disability] [or] [is perceived to have a disability];

(2) That [he] [she] is able to perform the essential functions of the job in question [with reasonable accommodation]; and

(3) That [his] [her] [disability] [or] [the perception of [his] [her] disability] was a substantial factor in(name of defendant's)decision [to terminate] [not to promote] [not to hire] [him] [her] [to lay [him] [her] off].(Name of plaintiff)does not have to prove that [perceived] disability was the only factor or the main factor in the decision. Nor does(name of plaintiff)have to prove that [he] [she] would have been [retained] [hired] [promoted] but for [his] [her] [perceived] disability.

If you find from your consideration of all of the evidence that each of these propositions has been proved, then your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if any of these propositions has not been proved, your verdict should be for(name of defendant)[on this claim].

NOTE ON USE

Use this instruction, rather than WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof), in a case of discriminatory treatment when the basis of the claim is disability.

Use WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability) and WPI 330.31.01 (Employment Discrimination—Disability Discrimination—Definition of Impairment) with this instruction.

In a “reasonable accommodation” case in which the primary allegation is that the employer has not met its obligation to accommodate the disability, use WPI 330.33 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden of Proof) and accompanying instructions, instead of this instruction.

A separate “essential functions” instruction may be appropriate, depending on the facts and circumstances of the particular case. See WPI 330.37 (Employment Discrimination—Essential Function—Definition); see also the Comment below for a discussion of essential functions.

Use the bracketed words as appropriate for the type of claim being made. In proposition (2), use the bracketed phrase “with reasonable accommodation” and the definition of reasonable accommodation in WPI 330.34 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definition) if, in order to make a threshold showing of qualification for the position, the plaintiff must show that he or she could perform the job's essential functions with reasonable accommodation. The phrase and definition of reasonable accommodation will not be used if the plaintiff does not assert that accommodation would be necessary. If the employer presents a defense of undue hardship, the jury must be instructed on undue hardship. See WPI 330.36 (Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof).

In some circumstances, it may be appropriate to give WPI 330.04 (Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense) with this instruction. See the Comment below.

COMMENT

Discriminatory treatment due to disability. Most reported Washington cases of employment discrimination based on disability involve issues of reasonable accommodation. Those issues are addressed later in this chapter. For case law discussion about other issues related to disability discrimination cases, see Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 172 P.3d 688 (2007); Roeber v. Dowty Aerospace Yakima, 116 Wn.App. 127, 64 P.3d 691 (2003); Bass v. City of Tacoma, 90 Wn.App. 681, 953 P.2d 129 (1998), amended, 976 P.2d 1248 (1999); Parsons v. St. Joseph's Hosp. & Health Care Ctr., 70 Wn.App. 804, 856 P.2d 702 (1993); Barnes v. Wash. Natural Gas Co., 22 Wn.App. 576, 591 P.2d 461 (1979). See also WAC 162-16-240 on bona fide occupational requirements.

In Johnson v. Chevron U.S.A., Inc., 159 Wn.App. 18, 33–34, 244 P.3d 438 (2010), the court disapproved of a jury instruction which included a requirement that the plaintiff prove that he was “treated differently” from non-disabled employees:

Proof of different treatment by way of comparator evidence is relevant and admissible but not required, and in many cases is not obtainable. Disability cases in particular often involve situations where, because of the unique nature of the disability, there is no relevant comparison evidence. Indeed, requiring a disability plaintiff to prove he was treated differently from nondisabled employees contradicts the employer's affirmative obligation to treat that employee differently by offering accommodation.

Motive or intent to discriminate. In Parsons v. St. Joseph's Hospital and Health Care Center, 70 Wn.App. 804, 856 P.2d 702 (1993), the plaintiff claimed she had been fired because of her disability. The employer responded that she was fired due to unsatisfactory job performance. The court distinguished the case from one in which the plaintiff claimed that the employer had failed to make reasonable accommodation for her disability, i.e., that the employer should have treated her differently from other employees. Rather, “the central issue … is whether St. Joseph's acted with a discriminatory motive or intent.” Parsons, 70 Wn.App. at 807.

“Perceived as.” If an employer perceives an employee to have a disability and treats the employee adversely based on that perception, the employee can establish a disparate treatment claim even though the employee is not in fact disabled. Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 615, 444 P.3d 606 (2019); Barnes v. Wash. Nat. Gas Co., 22 Wn.App. 576, 591 P.2d 461 (1979). See WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability).

Substantial factor. In MacKay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995), the court held that the “substantial factor” test, rather than a “determining factor” test, was the appropriate standard for deciding whether an employer's adverse employment decision was “because of” one of the prohibited factors enumerated in RCW 49.60.180(2), including disability. See Comment to WPI 330.01 (Employment Discrimination—Discrimination—General—Disparate Treatment—Burden of Proof).

Note that disability claims brought under the Americans with Disabilities Act (ADA) require a plaintiff to prove that “but for” the illicit motive of a disability, he or she would not have been subjected to the adverse job action. See Brownfield v. City of Yakima, 178 Wn.App. 850, 872–73, 316 P.3d 520 (2014), addressing the distinction between the plaintiff's burden in claims brought under the ADA versus claims brought under the Washington Law Against Discrimination (WLAD).

Bona fide occupational qualifications (BFOQ). See WPI 330.04 (Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense). See Hegwine, 162 Wn.2d at 357–58; Brady v. Daily World, 105 Wn.2d 770, 777, 718 P.2d 785 (1986), overruled on other grounds by Hill v. BCTI Income Fund–I, 144 Wn.2d 172, 188 n.10, 23 P.3d 440 (2001); Blanchette v. Spokane Cnty. Fire Protection Dist. No. 1, 67 Wn.App. 499, 836 P.2d 858 (1992); see also Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 129, 362 P.3d 974 (2015), in which the court held that the BFOQ defense may be available in a discharge case as well as a refusal to hire case.

The court noted in Fey v. State, 174 Wn.App. 435, 447–48, 300 P.3d 435 (2013), that an employer relying on a BFOQ defense to justify a facially discriminatory qualification:

must either have a factual basis for believing that all or substantially all persons who lack the qualification would be unable to safely and efficiently perform the duties of the job, or beable to prove that some excluded employees would be unable to perform safely and efficiently and it is impossible or highly impractical for the employer to distinguish the employees who do or do not present the risk.

Essential functions. In some cases, it may be appropriate to instruct jurors more specifically as to “essential functions.” See, e.g., Hegwine, 162 Wn.2d 340; Davis v. Microsoft Corp., 149 Wn.2d 521, 70 P.3d 126 (2003); Griffith v. Boise Cascade, Inc., 111 Wn.App. 436, 45 P.3d 589 (2002); Tinjum v. Atl. Richfield Co., 109 Wn.App. 203, 34 P.3d 855 (2001); Dedman v. Wash. Pers. Appeals Bd., 98 Wn.App. 471, 989 P.2d 1214 (1999); see WPI 330.37 (Employment Discrimination—Essential Function—Definition).

Undue hardship. If the employer presents a defense of undue hardship, the jury must be instructed on undue hardship. Easley v. Sea-Land Serv. Inc., 99 Wn.App. 459, 464, 469–72,994 P.2d 271 (2000); see WPI 330.36 (Employment Discrimination—Disability Discrimination—Undue Hardship—Burden of Proof).

Business judgment rule. Under the business judgment rule, the jury is not allowed to second-guess the defendant's business judgment and the jury may impose liability only for discriminatory conduct, not for conduct that was otherwise unreasonable or unfair. The trial court need not separately instruct the jury on the business judgment rule as long as the other instructions accurately state the essential elements of disability discrimination—the business judgment rule “add[s] nothing” to these essential elements. Burchfiel v. Boeing Corp., 149 Wn.App. 468, 491–93, 205 P.3d 145 (2009).

[Current as of October 2020.]

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