New Workplace Protections for Washington Public Employees

With recent changes in statutes and caselaw, now is a good time for public employers to review their personnel policies to ensure they are up to date.

Time to Update Your Employment Application Forms

This past session, the Washington Legislature amended the Washington Equal Pay and Opportunities Act, Chapter 49.58 RCW, with ESHB 1696, which prohibits a common hiring practice that has historically had a detrimental impact on women’s starting salary. The practice ESHB 1696 targets is inquiring about wage and salary history on job applications.

A simple internet search reveals the general advice that an applicant can expect anywhere between a 5-15% increase over their current salary when they change jobs. This expectation appears to be rooted in an employer mindset that applicants should be satisfied with such an increase — regardless of what the market might actually pay for someone with the same skills and experience. It is easy to play out what is likely to happen to someone who starts out being paid less at the very beginning of their career.

Because women have historically been offered lower initial pay than men for the same jobs, the Legislature has recognized that this practice tends to continue those lower pay rates over time, which in turns leads to more children and families in poverty — see RCW 49.58.005(3).

As of July 28, 2019, all employers in the State of Washington, including public employers, are prohibited from seeking the wage and salary history of an applicant from the applicant themselves or from their current or former employers. The employer can require that an applicant’s prior wage and salary history meet certain criteria, but only if the applicant voluntarily discloses the information or after the employer has negotiated and made an offer of employment with compensation.

We have updated our Hiring Procedures and Discrimination topic pages with this information, and we will be publishing a more detailed blog on EHB 1696.

Obesity Meets the Definition of “Disability” Under WLAD

In Taylor v. Burlington Northern Railroad Holdings, Inc, et al, Case No. 96335-5 (July 11, 2019), the Washington Supreme Court (WSCt) answered a question certified by the Ninth Circuit Court of Appeals (Ninth). The Ninth asked the WSCt:

Under what circumstances, if any, does obesity qualify as an ‘impairment; under the [Washington Law Against Discrimination, RCW] 49.60.040?

After a review of the history of the definition of “disability” under the WLAD and a thorough discussion of the medical consensus on the causes and effects of obesity, the WSCt responded:

We answer that obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a “physiological disorder, or condition” that affects multiple body systems listed in the statute. Therefore, if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the WLAD.

The Court explained the WLAD defines “disability” much broader than the American with Disabilities Act, which federal courts have previously ruled does not include obesity.

What this means for Washington employers, including local governments, is that they cannot discriminate against job applicants or employees based solely on a perception that the applicant is medically obese without some indication that the applicant is unable to physically perform the job in question.

New Public Records Exemption for Workplace Harassment Complainants and Witnesses

On July 28, 2019, a new public record exemption will go into effect. HB 2020 amended RCW 42.56.250(6) to exempt agency records of active and ongoing investigations of unfair employment, discrimination, and harassment. Once the investigations are closed, the records may only be disclosed “if the names of complainants, other accusers, and witnesses are redacted.” Interestingly, even if the names are redacted, the employer is still required to notify the complainant and witnesses that their name will be redacted from the records to be released unless they consent to disclosure. 

Public testimony in support of the bill indicated that the new exemption would encourage reporting of workplace harassment and violence by protecting the victims and witnesses from retaliation, which in turn would lead to a more welcoming, diverse, and safe workplace. 

Expression of Breast Milk in the Workplace

Existing Washington law required reasonable accommodation for pregnancy and pregnancy related health conditions (RCW 43.10.005). Federal law also requires reasonable accommodations for the expression of breast milk for only one year after a child is born, and employers with less than 50 employees need not comply if it would cause an “undue hardship” (see Final Bill Report).

Also effective on July 28, SHB 1930 expressly includes the need to express breast milk within the state definition of pregnancy related health conditions and requires employers to provide reasonable break time for an employee to express breast milk for two years after the child’s birth — which is longer than the federal requirement. The break must be provided each time the employee has the need to express milk and there must be a private location other than a bathroom that the employee can use — see RCW 43.10.005(1)(c)(viii).

The state law applies to employers with 15 or more employees. There is no “undue hardship” exemption like there is under federal law, but if a business location or worksite does not have a suitable space, “the employer shall work with the employee to identify a convenient location and work schedule to accommodate their needs.”

It appears that Washington employers with fewer than 15 employees, like many small cities and towns, are not subject to RCW 43.10.005. These entities will only need to comply with the federal requirement of providing a reasonable accommodation for the expression of breast milk for one year after birth of the child, and only if to do so would not cause “undue hardship" for the entity.