The Washington Law Agaionst Discrimination Requires Employers to Accomodate Childcare Duties of Single Parents

The Washington Supreme Court mandates that courts must interpret the state’s laws to “render a result consistent with Washington's long and proud history of being a pioneer in the protection of employee rights.” Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 300 (2000). In keeping with that commitment, the Washington Supreme Court holds the Washington Law Against Discrimination ("WLAD") to be a “public policy of the highest priority.”  Martini v. The Boeing Co., 137 Wn.2d 357 (1999). “Marital status” and “sex” are among the characteristics expressly protected by the WLAD. See RCW 49.60.180; State v. Arlene's Flowers, Inc., 193 Wn.2d 469, 501 (2019) (“The WLAD prohibits discrimination on the different basis of ‘marital status’ in the employment context[.]”).

Single parents inherently have greater childcare responsibilities than married parents who can share childcare between them. Washington courts have yet to rule clearly on whether an employee’s status as a single parent is protected by the WLAD. However, a Connecticut court earlier this year held that “discriminatory acts related to familial responsibilities are often an indicator of discrimination based on marital status and sex.” Forbes v. Lintbells Inc., FST CV-236062982 S, 2024 WL 1270505, at *2 (Conn. Super. Ct. Mar. 20, 2024). The court thus found that, under a Connecticut law nearly identical to the WLAD, an employer can be liable if they “discriminated against [an employee] by reason of her status as a single parent.” Id. Under the WLAD, there is good reason to believe that Washington courts will go further and require employers to accommodate the childcare burdens of single parents to the extent that married parents will have workplace advantages that single parents may have trouble matching.

The WLAD does not expressly require employers to accommodate disabilities, religion, sex, marital status, or any other protected characteristic. See RCW 49.60.180. Nevertheless, Washington courts have long required employers to proactively accommodate protected characteristics of their employees. See, e.g., Sommer v. Dep't of Social and Health Services, 104 Wn. App. 160, 173 (2001) (“Once the employee has met his or her burden of providing the employer with notice of the disability, the employer is required to take ‘positive steps' to accommodate the disability.”). The Washington Supreme Court established this affirmative duty to accommodate characteristics protected by the WLAD based on the strong policy statements embedded in multiple WLAD sections:

RCW 49.60 contains a strong statement of legislative policy. See RCW 49.60.010 and .030. When, in 1973, the legislature chose to make this policy applicable to discrimination against the handicapped, we believe it is clear it mandated positive steps be taken. An interpretation to the contrary would not work to eliminate discrimination. It would instead maintain the Status quo wherein work environments and job functions are constructed in such a way that handicaps are often intensified because some employees are not physically identical to the “ideal employee”.

Holland v. Boeing Co., 90 Wn.2d 384, 388–89 (1978); Dean v. Municipality of Metro. Seattle-Metro, 104 Wn.2d 627, 632, 708 P.2d 393, 396 (1985). These policy reasons that have long required reasonable accommodation for an employee’s disability are indistinguishable from the policy reasons that also require reasonable accommodation for the marital status of a parent. On this issue, the Washington Supreme Court just last week made very clear that no protected class is entitled to more protection under the WLAD than another protected class. See Suarez v. State, 101386-8, 2024 WL 3529677, at *10 (Wash. July 25, 2024) (“The hierarchy of protected classes that Suarez suggests we adopt directly contradicts the central purpose of the WLAD, the elimination and prevention of discrimination on the basis of all protected classes, and the plain language of its prohibition of discrimination in the ‘terms or conditions of employment […].’”), citing RCW 49.60.010, .180(3).

When considering reasonable accommodations under the WLAD, employers must explore ways for employees to continue working in the same position or else try to find a position compatible with the limitations of their employees’ protected characteristics. See, e.g., Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 778 (2011) (“To accommodate, the employer must affirmatively take steps to help the employee with a disability to continue working at the existing position or attempt to find a position compatible with the limitations.”). Employers must provide such an accommodation “unless the accommodation would pose an undue hardship.” Frisino, 160 Wn. App. at 777. The Washington Supreme Court just recently confirmed that “[w]hen considering an ‘undue hardship’ analysis, a court must consider whether the defendant employer has sufficiently shown that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Suarez, 2024 WL 3529677, at *10. In this analysis, courts will “look at all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of [an] employer.” Id. (citation omitted, internal quotes omitted).