Washington state public entities may engage in affirmative action efforts in public education, public employment and public contracting under an initiative passed by the Washington Legislature that becomes effective on July 28, 2019. The initiative, known as the Washington State Diversity, Equity and Inclusion Act (I-1000), permits the state of Washington, and cities, counties, colleges, universities and other political subdivisions in Washington to adopt or implement affirmative action laws, regulations, policies and procedures. Affirmative action efforts will still be limited by existing federal and state laws, and case law developed by federal and state courts.
The Washington State Civil Rights Act currently prohibits the state and its political subdivisions from discriminating or providing preferential treatment on the basis of certain protected characteristics, namely, race, sex, color, ethnicity and national origin. The Diversity, Equity and Inclusion Act amends the Civil Rights Act and opens the door to affirmative action by narrowly defining “preferential treatment,” and identifying three specific types of activities that the state and its political subdivisions can engage in related to affirmative action, including:
- Taking efforts to remedy past discrimination or underrepresentation of disadvantaged groups, when such conditions are documented in a valid study or court of law;
- Adopting affirmative action policies that do not use quotas or constitute preferential treatment, such as participation goals and outreach efforts. The initiative defines “affirmative action” as a policy in which protected characteristics are one factor considered in the selection process for public education, public employment and public contracting. “Preferential treatment” is defined as using a protected characteristic as “the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate;” and
- Adopting other affirmative action policies or engaging in other affirmative action activities that do not violate state or federal statutes, regulations or court orders.
I-1000 expressly integrates the holdings of several affirmative action-related court decisions, making it clear that the Washington Legislature’s intent was to allow any and all affirmative action efforts allowable under current state and federal law.
Additionally, I-1000 expands the protected characteristics on which affirmative action may be taken to include age, sexual orientation, disability and veteran or military status. Each of these characteristics are protected under Washington’s Law Against Discrimination.
I-1000 also establishes a state commission on diversity, equity and inclusion. The commission will be responsible for:
- Planning, directing, monitoring and enforcing each state agency’s compliance with the new law; and
- Publishing an annual report on the progress of state agencies in achieving diversity, equity and inclusion in public education, public employment and public contracting.
Update: I-1000 was placed on the ballot this election cycle as Referendum 88, giving voters in the State of Washington the opportunity to approve or reject I-1000. Ultimately, Referendum 88 was rejected by the Washington voters. This means that I-1000 will not go into effect, and public agencies in Washington will continue to be restricted from implementing affirmative action policies relating to public education, public employment, and public contracting.
If you have questions about how this will impact public employers, Lane Powell’s Lawyers for Employers™ are available to help.