Washington State’s Supreme Court held last week that an employer who refuses to hire a job applicant because of her pregnancy is liable for sex discrimination under Washington’s Law Against Discrimination absent proof of a bona fide occupational qualification. Hegwine v. Longview Fibre, Co., Inc., Case No. 78728-0, November 29, 2007.
The Decision
Plaintiff applied for a clerk/order checker position in the customer service department. The job announcement did not list any lifting requirements, but during Plaintiff’s interview, she was told there was a 25-lb lifting requirement, and she was offered the job contingent on a physical examination. Plaintiff attended a physical examination with the employer’s medical director, where she was required to complete a medical history questionnaire that included pregnancy status. When Plaintiff disclosed that she was pregnant, the employer’s medical director asked her to obtain a release from her own doctor. Plaintiff did so and reported to work, but she was told to leave until the employer’s medical director could confirm the lifting release with plaintiff’s own doctor. Plaintiff’s doctor and the medical director had a series of conversations in which the company raised the lifting requirement each time. Plaintiff eventually provided three different medical release forms, which all showed an increased amount of weight she could lift, eventually up to 40 pounds. After receiving this release the employer “analyzed the position” and determined that the clerk/order checker must be able to lift 60 pounds. The employer then withdrew its offer of employment because Plaintiff’s “availability” did not permit her to “perform the job.”
The Supreme Court first clarified that the trial court had erred by applying a reasonable accommodation analysis, like that applied in disability discrimination cases, to this case. Instead, the Court examined whether the 60-pound lifting requirement was a “business necessity” and found that Plaintiff showed this was a pretextual reason for not hiring a pregnant woman because, among other reasons, the lifting requirement was not disclosed in the posting and the amount of the lifting requirement increased throughout the process, particularly after Plaintiff had already disclosed her lifting restrictions. The Court also went on to point out that the employer was unable to show that the lifting requirement was a “bona fide occupational requirement,” because it could not show that “all or substantially all” pregnant women “would be unable to efficiently perform the duties” of the clerk/order checker position.
What it Means to Employers
Employers should remember that Washington law forbids any pre-employment inquiries related to pregnancy. Employers should also take care to determine all physical requirements for any position before creating a job posting and to include those requirements in all job postings and advertisements. At the same time, employers must be able to prove that these physical requirements are bona fide, which should include objective medical evidence that the physical requirements are necessary for efficient job performance.
For more information, please contact Philip Lempriere or Catharine Morisset of our Seattle office at (206) 622-3790.
Keesal, Young & Logan Employment Group
