By Karen Sutherland

In November 1998, Washington’s voters passed Initiative 200, the Washington State Civil Rights Act, which is codified at RCW ¤ 49.60.400.

The intent of I-200 was to stop governmental affirmative action programs under most circumstances. The scope of RCW ¤ 49.60.400 is more limited than many people believe. For example, it does not generally apply to the private sector, it does not apply to all types of affirmative action and it does not apply to all government affirmative action plans.

Seven years after the law went into effect, it is now a good time to examine I-200’s impact on diversity.1

What the Law Says
The gist of I-200 is: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”2

“State” is defined in the statute as including, but not necessarily limited to, “the state itself, any city, county, public college or university, community college, school district, special district, or other political subdivision or governmental instrumentality of or within the state.”3 There are exceptions for classifications that are based on sex and are necessary for sexual privacy or medical or psychological treatment, for undercover law enforcement or for film, video, audio or theatrical casting.

Affirmative action plans by private employers, for example, are still valid under RCW ¤ 49.46.400 if they do not run afoul of other anti-discrimination laws. RCW ¤ 49.46.400 also does not, in and of itself, affect affirmative action relating to disability, age or religion, which are considered protected classes under other state anti-discrimination statutes.

Interpretation of I-200
Perhaps because of its limited scope, there are only three decisions citing RCW ¤ 49.60.400 in Westlaw’s Washington database. Two cases simply mention its passage. The third case, Parents Involved in Community Schools v. Seattle School District No. 1,4 provides some substantive guidance.

In Parents, the Ninth Circuit asked the Washington Supreme Court to determine whether the statute prohibits all race-cognizant governmental action or whether it allows some race-cognizant state actions, while limiting others. Parents involved the school district’s use of race as the second factor in a series of four “tie-breakers” when a school was over-subscribed. Race as a tie-breaker was triggered when the student population was less than 25 percent Caucasian or more than 75 percent minority. Once racial balance was achieved, the school stopped using race as a tie-breaker.

The district contended that the tie-breaker was racially neutral because it restricted both Caucasian and minority students equally and did not advance a less qualified student over a more qualified student. The district asserted that the average informed voter would not have understood I-200 as prohibiting such racially neutral plans.5

The court noted, “Historically, courts have often treated racial balancing programs in education different from similar programs involving employment, public contracts, and housing”6 and concluded that the statute prohibits some, but not all, race-cognizant government action. Specifically, it stated, “Affirmative action programs which advance a less qualified applicant over a more qualified applicant are now impermissible under Washington law. Programs which are racially neutral, such as the Seattle School District’s open choice plan, are lawful.”7

Diversity in Employment
Outside the context of public education, there are no decisions interpreting RCW ¤ 49.60.400. For practitioners whose clients seek to increase diversity in employment in the public sector (where RCW ¤ 49.60.400 applies) or in the private sector (where other sections of RCW Title 49 prohibit discrimination based on membership in a protected class), the following are some practice tips that may be useful, depending on the circumstances:

Make the location attractive to a diverse work force. If the space where employees will be working has not yet been purchased or leased, consider how location and access to public transportation affect access by various populations. In addition to locating near bus lines, consider subsidizing bus passes to increase the likelihood of attracting public transit users.

Make the workplace attractive to a diverse work force. Adopt policies and procedures that emphasize treating employees without regard to race, religion, national origin, gender or other protected class. Conduct workplace training to address harassment, discrimination and diversity as well.

Make the job attractive to a diverse work force. Does the job description sound like it is aimed at a specific race, age, sex, national origin or other group? Check the job posting and advertisements against the requirements set forth in WAC 162-16-260.

Outreach is not the same as affirmative action. Encouraging qualified individuals to apply for a position they may not otherwise have considered is not illegal and can broaden the applicant pool.

Post job opportunities where a diverse pool will read them. If an employer only advertises in The Seattle Times or The Wall Street Journal, there are a vast number of potential employees who will not see the ads. Post jobs online, in trade schools, community groceries, newsletters and community newspapers, and with non-profits that provide job counseling or placement services. n

1 The social effects of I-200, such as the changes in the number of contracts awarded to MWBE businesses, are beyond the scope of this article. Instead, this article focuses on the statutory language and the case law.

2 RCW ¤ 49.60.400(1).

3 RCW ¤ 49.60.400(7).

4 149 Wn.2d 660, 72 P.3d 151 (2003).

5 Id. at 668.

6 Id. at 680 (citations omitted).