PERMANENT RULES
Date of Adoption: December 17, 1999.
Purpose: To adopt improvements to current Human Rights Commission rules under Executive Order 97-02 relating to clarity, effectiveness, consistency with statutory intent and case law, need, and fairness.
Reason for Adoption of Rules: The purpose of these amendments is to adopt improvements to current commission rules under Executive Order 97-02 relating to clarity, effectiveness, consistency with statutory intent and case law, need, and fairness.
Differences between Proposed Rules and Adopted Rules: The commission adopted chapters 162-12, 162-18, and 162-20 WAC exactly as proposed. In WAC 162-28-040 the commission made a grammatical correction (changing "insure" to "ensure"). In WAC 162-40-010 the commission corrected a statutory reference (RCW 49.60.222 (1)(j)), and in WAC 162-40-041 (2)(a)(iii) the commission restored a phrase ("in accordance with procedures established by the creditor") found in the previous version of the rule.
Summary of Comments Received and Commission Response: Only
one person or organization provided written comments on the
proposed rules. No one offered public comments at either the
September 23rd Vancouver or October 15th Seattle public hearings.
| NAME | REPRESENTING | |
| Bryan Wahl | Washington Association of Realtors (WAR) | |
| WAC | COMMENT | STAFF RESPONSE |
| 162-12-140(a) | With respect to age, WAR suggests
changing the example to read: "Any inquiry not in compliance with
49.44.090 that implies a preference
for persons (( |
Staff do not recommend making the proposed change. Chapter 49.60 RCW specifically protects persons over the age of 40 from age discrimination. The proposed language, "of certain ages," is more general and introduces potential ambiguity. |
| 162-12-140(c) | WAR inquired whether the rule means that it is unfair to ask about citizenship on a job application. | In most circumstances, yes. However, an employer who has a business need to know whether the applicant can be legally employed can make an inquiry such as: "Do you have a legal right to work in the U.S.? Proof of a legal right to work in the U.S. will be required after hire." |
| 162-12-140(h) | WAR inquired whether the rule means that it is unfair to ask about marital status on a job application. What if an individual prefers to be referred to as Mr., or Mrs., or Miss? | Yes, it is unlawful for an employer to ask about an applicant's marital status on an application form. Marital status does not tell the employer anything about the applicant's ability to perform the job. The personal preference of the applicant with respect to form of address is not at issue. The rule's intent is to provide guidance to employers on how to comply with the law in this area. |
| 162-12-140 (j) and (k) | With respect to Name and National Origin, WAR inquired whether it was unlawful to ask even if only to establish a common bond or background - e.g. "Oh, I'm from (country) too..." | The intent of the rule is to provide guidance to employers on what they can lawfully ask under the law. It is not appropriate for an employer to inquire about National Origin, even in order to establish a common denominator. |
| 162-12-140(l) | Regarding organizations, WAR notes that it is unfair to "require" a listing of all clubs, lodges, etc... but is it OK to ask on a job application? | No, it is not OK to either require or ask for a listing of all organizational memberships. However, an employer may ask for a listing of memberships that do not otherwise indicate the protected status of the applicant. |
| 162-12-140(p) | Relatives. WAR suggested changing
the explanatory note to read: "(While the law does not prohibit
company policies governing the
employment of relatives, any policy
that has the effect of advantaging or
disadvantaging minorities, women,
married couples, or (( |
The comments appear to interpret this explanatory statement as an equal employment opportunity or affirmative action statement. It is not. The intent is simply to apprise employers that any policy which discriminates against protected class members is a violation of the law unless there is a business necessity reason for the policy. Inserting "anyone" is inappropriate because the law does not prohibit discrimination against anyone for any reason - only on the basis found in chapter 49.60 RCW. |
| 162-20-030 | Age discrimination - WAR suggests that, while this is the legal definition, HRC should leave out the reference to the specific age (over forty). | The reference to the specific age is important because it clarifies that the protected age range begins at forty years of age. |
| 162-28-040 | Public education - WAR suggests that, in proposed subsection (1), the word "insure" should be "ensure." This is a grammatical correction. | Staff agrees: "ensure" best conveys the desired meaning. |
| 162-40-041 (2)(a)(iii) |
WAR suggests adding language like: "A refusal to increase the amount of credit available to an applicant who has made an application for an increase when certain defined terms and qualifications are met." |
The example merely illustrates the concept of an "adverse action." It is not conditioned on whether certain terms and qualifications are met. Such language introduces potential ambiguity. However, staff agrees that greater specificity in the example is warranted. Staff recommends restoring the phrase "in accordance with procedures established by the creditor" from current rule. |
WAC 162-12-100 Purpose, this amendment clarifies the general purpose of the chapter for readability. A definition of "protected status" identical to that found in chapter 162-16 WAC (Employment) is added for clarity.
WAC 162-12-120 General approach, this amendment clarifies sentence structure and wording for readability.
WAC 162-12-130 Discriminatory inquiries are prohibited, this amendment clarifies sentence structure and wording for readability.
WAC 162-12-135 Bona fide occupational qualifications, this amendment updates a reference to chapter 162-16 WAC that provides guidance on bona fide occupational qualifications.
WAC 162-12-140 Preemployment inquiries, this amendment clarifies sentence structure and wording for readability. Examples are updated and typographical errors are corrected.
WAC 162-12-150 Required inquiries, this amendment clarifies sentence structure and wording for readability.
WAC 162-12-160 Data for legitimate purposes, this amendment clarifies sentence structure and wording for readability.
WAC 162-12-170 Conditions for inquiries to applicants, this amendment clarifies sentence structure and wording for readability and is updated to reflect current agency practice.
WAC 162-12-180 Postemployment records, this amendment clarifies sentence structure and wording for readability.
WAC 162-18-010 Corrective employment program defined, 162-18-020 Purpose and policy, 162-18-030 Corrective employment programs are lawful, 162-18-040 Permissible components of program, 162-18-050 When programs may be used, 162-18-060 Termination of programs, 162-18-070 Voluntary programs recommended, 162-18-080 Commission approval of voluntary programs, 162-18-090 Job orders specifying race, creed, color, national origin, sex, marital status, handicap, or age and 162-18-100 Construction -- Relation to preemployment inquiry guide, the commissioners repealed these sections as unnecessary.
WAC 162-20-010 Purpose, this amendment clarifies sentence structure and wording for readability.
WAC 162-20-020 Statutes interpreted, this amendment deletes unnecessary repetition of statutory text and clarifies sentence structure and wording for readability.
WAC 162-20-030 Jurisdiction of commission, this amendment clarifies sentence structure and wording for readability.
WAC 162-28-030 Schools are places of public accommodation, this amendment clarifies sentence structure and wording for readability and defines "protected status" for clarity.
WAC 162-28-040 English language limitations and national origin discrimination in K-12 grades, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-010 Scope of chapter, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-021 Coordination with federal law, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-031 Commission review of forms, practices, and procedures, the commissioners repealed this section as unnecessary.
WAC 162-40-041 Definitions, this amendment eliminates unnecessary or obsolete text and clarifies sentence structure and wording for readability.
WAC 162-40-051 General rule prohibiting discrimination, the commissioners repealed this section as unnecessary.
WAC 162-40-055 Rules concerning applications, this new section consolidates provisions related to credit applications.
WAC 162-40-061 Discouraging applications, the commissioners repealed this section as unnecessary.
WAC 162-40-065 Rules concerning evaluation of applications, this new section consolidates provisions relating to evaluation of applications.
WAC 162-40-071 General concerning requests for information, the commissioners repealed this section as unnecessary.
WAC 162-40-075 Rules concerning extensions of credit, this new section consolidates provisions related to extensions of credit.
WAC 162-40-081 Request for designation of membership in certain protected classes, the commissioners repealed this section as unnecessary.
WAC 162-40-091 Other information a creditor may not request, 162-40-101 Information about a spouse or former spouse, 162-40-111 Application forms: Special state requirements, 162-40-121 General rule concerning use of information, 162-40-131 Specific rules concerning use of information, 162-40-141 Opening accounts, 162-40-151 Action concerning existing open end accounts and 162-40-161 Signature of spouse or other person, the commissioners repealed these sections as unnecessary.
WAC 162-40-171 Notifications, this amendment eliminates unnecessary or obsolete text and clarifies sentence structure and wording for readability.
WAC 162-40-181 Furnishing of credit information, this amendment eliminates unnecessary or obsolete text and clarifies sentence structure and wording for readability.
WAC 162-40-191 General rule, this amendment updates existing language to reflect statutory changes to covered protected statuses since 1977.
WAC 162-40-201 Rules concerning credit files, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-211 Record retention, this amendment eliminates unnecessary or obsolete text and clarifies sentence structure and wording for readability.
WAC 162-40-221 Rules of construction, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-231 Exemption for special purpose credit program, this amendment clarifies sentence structure and wording for readability.
WAC 162-40-241 Special treatment for certain classes of transactions, the commissioners repealed this section as unnecessary.
WAC 162-40-251 Remedies, this amendment clarifies sentence structure and wording for readability and is updated to reflect current commission practice.
Citation of Existing Rules Affected by this Order: Repealing chapter 162-18 WAC, WAC 162-40-031, 162-40-051, 162-40-061, 162-40-071, 162-40-081, 162-40-091, 162-40-101, 162-40-111, 162-40-121, 162-40-131, 162-40-141, 162-40-151, 162-40-161, and 162-40-241; and amending WAC 162-12-100, 162-12-120, 162-12-130, 162-12-140, 162-12-150, 162-12-160, 162-12-170, 162-12-180, 162-20-010, 162-20-020, 162-20-030, 162-28-030, 162-28-040, 162-40-010, 162-40-021, 162-40-041, 162-40-171, 162-40-181, 162-40-191, 162-40-201, 162-40-211, 162-40-221, 162-40-231, and 162-40-251.
Statutory Authority for Adoption: RCW 49.60.120(3).
Adopted under notice filed as WSR 99-17-102 on August 18, 1999.
Changes Other than Editing from Proposed to Adopted Version: In WAC 162-40-041: Restored phrase found in previous version of the rule.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 24, Repealed 24.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 3, Amended 24, Repealed 24. Effective Date of Rule: Thirty-one days after filing.
December 21, 1999
Sue J. Jordan
Executive Director
OTS-3320.2
AMENDATORY SECTION(Amending WSR 96-21-054, filed 10/14/96,
effective 11/14/96)
WAC 162-12-100
Purpose.
(1) These regulations ((are
intended to)) carry out ((the purposes of)) the law against
discrimination as stated generally in RCW 49.60.010 and
49.60.030, and ((to inform employers, employment agencies, and
the public of the commission's interpretation of)) interpret RCW 49.60.180 and 49.60.200 which declare certain preemployment
inquiries to be unfair practices.
(2) The commission ((will)) generally follows((, in its
interpretation of statutory provisions in)) chapter 49.60 RCW and
((rules contained in Title 162 WAC,)) federal court decisions
((interpreting)) that interpret comparable statutes and rules. The commission will not follow ((such)) federal precedents((,
however, where it believes that)) when a different interpretation
of state statutes and rules will better carry out the purposes of
chapter 49.60 RCW.
(3) This regulation cannot cover every question ((which))
that might arise in connection with inquiries prior to
employment. The commission expects that in most cases these
rules, either directly or by analogy, will guide those who are
covered by the law. ((Employers and employment agencies that
have questions are invited to call the commission's staff for
advice and assistance, or, if necessary, to petition the
commission for a declaratory ruling under RCW 34.05.240 and WAC 162-08-700 concerning the application of the law to particular
facts.))
(4) Definition: In this chapter, the following words are used in the meaning given, unless the context clearly indicates another meaning.
"Protected status" is short for the phrase, "age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person," and means the full phrase (see RCW 49.60.180).
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-100, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-100, filed 5/22/74; Order 9, § 162-12-100, filed 9/23/71; § 162-12-100, filed 10/23/67.]
(1) Inquiries ((which
would)) that convey ((the impression)) to a reasonable person
that applicants in a protected class will be discriminated
against are prohibited whether or not they are ((made in
connection with)) connected to a discriminatory purpose.
(2) The commission recognizes the legitimate interests of
employers and employment agencies with respect to ((the protected
class status of applicants which)) making preemployment inquiries
that are consistent with the purpose of the law against
discrimination, or where required by government or to carry out
an employer's policy of nondiscrimination. ((However, the
commission also recognizes that)) In the absence of safeguards,
((the)) preemployment inquiries or records of ((race, sex,
etc.,)) applicants' protected status can be misused for
discriminatory purposes. ((To address this conflict, the
commission has established fixed)) The rules in WAC 162-12-140
((which characterize particular preemployment inquires as))
identify common fair ((or)) and unfair ((in such a way that
employers and employment agencies who intend to make legitimate
use of such data have maximum freedom to do so without
conveying)) preemployment inquiries so that employers and
employment agencies do not convey the impression that ((protected
class)) applicants will be discriminated against based on
protected status.
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-120, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-120, filed 5/22/74; Order 9, § 162-12-120, filed 9/23/71; § 162-12-120, filed 10/23/67.]
((It is an unfair practice to
make)) Any preemployment inquiry or ((keep)) the keeping of any
record of ((race, creed, color, national origin, age, sex,
marital status, or disability,)) protected status before((,
during, or after)) employment((,)) for ((the purpose of
discriminating on these grounds,)) a discriminatory purpose is
prohibited and may be evidence of an unfair practice when
connected to the applicant's protected status unless the
particular quality inquired about is a bona fide occupational
qualification.
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-130, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-130, filed 5/22/74; Order 9, § 162-12-130, filed 9/23/71; Order 8, § 162-12-130, filed 6/22/70; § 162-12-130, filed 10/23/67.]
((The statutes construed in this)) Chapter 49.60 RCW recognizes
an exception to unfair preemployment inquiries when the inquiries
are based upon a "bona fide occupational qualification." ((For
guidance on the meaning of that term see WAC 162-16-020. The
provisions of this preemployment guide do not apply where age,
sex, race, creed, color, marital status, national origin, or
freedom from a disability is a bona fide occupational
qualification and is identified as such to the applicant or other
person. See WAC 162-16-040.)) (See WAC 162-16-240.)
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-135, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-135, filed 5/22/74; Order 9, § 162-12-135, filed 9/23/71; Order 8, § 162-12-135, filed 6/22/70.]
(1) The following
((chart of)) examples of fair and unfair ((inquiry rules))
inquiries apply when made in reference to job application forms,
preemployment interviews, or any other type of inquiry made of
((persons seeking to be employed)) job applicants. The rules
also apply to inquiries made to persons other than an applicant
and to inquiries made by third parties such as a credit reporting
service. The rules do not apply after a person is employed. See
WAC 162-12-180.
(2) Employers and employment agencies shall ((observe))
comply with these ((preemployment)) rules except where one or
more of the following conditions exist:
(a) When there is a "bona fide occupational qualification."
((as explained in chapter 162-16 WAC.))
(b) A voluntary affirmative action plan ((to address past or
current discriminatory conditions or an affirmative action plan))
that is in compliance with the requirements of a government
agency or other competent authority such as a court, and if made
in a manner provided in WAC 162-12-160 and 162-12-170.
(c) A ((contrary)) requirement of federal law or regulation,
as explained in WAC 162-12-150. ((If one or more of the above
conditions apply, the employer or employment agency may use
appropriate inquiries that would otherwise be unfair. Inquiries
made under these exceptions must always be accompanied by a
written explanation of their purpose. See WAC 162-12-135,
162-12-170, and 162-16-040.))
If one or more of the above conditions apply, the inquiries of employers and employment agencies must be accompanied by a written explanation of their purpose. See WAC 162-12-135, 162-12-160 and 162-12-170.
(3) The following examples ((in the following chart)) of
fair and unfair preemployment inquiries ((are intended to))
define what is an unfair practice under RCW 49.60.180(4) and
49.60.200. These examples, however, are not all inclusive. All
preemployment inquiries ((which)) that unnecessarily elicit the
((race, sex, or membership in other)) protected ((classes))
status of a job applicant are prohibited by these statutes
irrespective of whether or not the particular inquiry is covered
in this regulation.
| SUBJECT | FAIR PREEMPLOYMENT INQUIRES |
UNFAIR PREEMPLOYMENT INQUIRES |
| a. Age | Inquiries as to birth date and proof of true age are permitted by RCW 49.44.090. | Any inquiry not in
compliance with
RCW 49.44.090
(( |
| (For age discrimination, RCW 49.44.090 must be read in conjunction with RCW 49.60.180 and 49.60.200. RCW 49.44.090 limits age discrimination coverage to persons 40 years of age and older, and makes other limitations and exceptions to the age discrimination law.) | ||
| b. Arrests (see also Convictions) |
Because statistical
studies regarding arrests
have shown a disparate
impact on some racial
and ethnic minorities,
and an arrest by itself is
not a reliable indication
of criminal behavior,
inquiries concerning
arrests must include
whether charges are still
pending, have been
dismissed, or led to
conviction of a crime
involving behavior
(( |
Any inquiry
(( |
| c. Citizenship | Whether applicant is prevented from lawfully becoming employed in this country because of visa or immigration status. Whether applicant can provide proof of a legal right to work in the United States after hire. | Whether applicant is
citizen. Requirement
before (( |
| d. Convictions (see also Arrests) | Statistical studies on
convictions and
imprisonment have
shown a disparate impact
on some racial and ethnic
minority groups.
Inquiries concerning
convictions (or
imprisonment) will be
considered to be justified
by business (( |
Inquiries concerning convictions and imprisonment which either do not relate reasonably to job duties or did not occur within the last ten years will not be considered justified by business necessity. |
| e. Family | Whether applicant can meet specified work schedules or has activities, commitments or responsibilities that may prevent him or her from meeting work attendance requirements. | Specific inquiries
concerning spouse,
spouse's employment
or salary, children,
child care
(( |
| f. Disability | Whether applicant is able to perform the essential functions of the job for which the applicant is applying, with or without reasonable accommodation. Inquiries as to how the applicant could demonstrate or describe the performance of these specific job functions with or without reasonable accommodation. Note: Employers are encouraged to include a statement on the application form apprising applicants that if they require accommodation to complete the application, testing or interview process, to please contact the employment office, personnel or human resources department or other office as may be able to assist them. | Inquiries about the nature, severity or extent of a disability or whether the applicant requires reasonable accommodation prior to a conditional job offer. Whether applicant has applied for or received worker's compensation. Also any inquiry that is not job related or consistent with business necessity. |
| g. Height and Weight | Being of a certain height or weight will not be considered to be a job requirement unless the employer can show that all or substantially all employees who fail to meet the requirement would be unable to perform the job in question with reasonable safety and efficiency. | Any inquiry which is not based on actual job requirements and not consistent with business necessity. |
| h. Marital Status (see also Name and Family) | None. | ( ) Mr. ( ) Mrs. ( ) Miss ( ) Ms. Whether the applicant is married, single, divorced, separated, engaged, widowed, etc. |
| i. Military | Inquiries concerning education, training, or work experience in the armed forces of the United States. | Type or condition of military discharge. Applicant's experience in military other than U.S. armed forces. Request for discharge papers. |
| j. Name | Whether applicant has worked for this company or another employer under a different name and, if so, what name. Name under which applicant is known to references if different from present name. | Inquiry into original
name where it has
been (( |
| k. National Origin | Inquiries into applicant's ability to read, write and speak foreign languages, when such inquiries are based on job requirements. | Inquiries into applicant's lineage, ancestry, national origin, descent, birthplace, or mother tongue. National origin of applicant's parents or spouse. |
| l. Organizations | Inquiry into organization memberships, excluding any organization the name or character of which indicates the race, color, creed, sex, marital status, religion, or national origin or ancestry of its members. | Requirement that applicant list all organizations, clubs, societies, and lodges to which he or she belongs. |
| m. Photographs | May be requested after hiring for identification purposes. | Request that applicant submit a photograph, mandatorily or optionally, at any time before hiring. |
| n. Pregnancy (see also Disability) | Inquiries as to a duration of stay on job or anticipated absences which are made to males and females alike. | All questions as to pregnancy, and medical history concerning pregnancy and related matters. |
| o. Race or Color | None. See WAC 162-12-150, 162-12-160, and 162-12-170. | Any inquiry concerning race or color of skin, hair, eyes, etc., not specifically permitted by WAC 162-12-150, 162-12-160, and 162-12-170. |
| p. Relatives | Name of applicant's relatives already employed by this company or by any competitor. | Any other inquiry regarding marital status, identity of one's spouse, or spouse's occupation are considered unfair practices in accordance with WAC 162-12-150. |
| (While the law does not prohibit company policies governing the
employment of relatives, any policy (( |
||
| q. Religion or Creed | None. | Inquiries concerning applicant's religious preference, denomination, religious affiliations, church, parish, pastor, or religious holidays observed. |
| r. Residence | Inquiries about address to the extent needed to facilitate contacting the applicant. | Names or relationship of persons with whom applicant resides. Whether applicant owns or rents own home. |
| s. Sex | None. | Any inquiry concerning gender is prohibited. |
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-140, filed 10/14/96, effective 11/14/96; Order 19, § 162-12-140, filed 1/20/75; Order 18, § 162-12-140, filed 1/20/75; Order 16, § 162-12-140, filed 5/22/74; Order 9, § 162-12-140, filed 9/23/71; Order 8, § 162-12-140, filed 6/22/70; § 162-12-140 and chart, filed 10/23/67.]
((Because of the supremacy of federal law over state
law,)) An employer or employment agency may ask ((applicants to
state their race, creed, color, age, sex, marital status,
disability, or national origin)) applicants about protected
status to the extent that the employer is required to do so by
the Washington state or the United States government or a federal
or state court decree. When the applicant data are required by
the ((United States)) court or government ((asks only for data on
race, creed, color, national origin, age, marital status,
disability, or sex of applicants)), the information shall be
acquired by means other than inquiry to the applicants, unless
the ((United States)) court or government expressly requires the
inquiries or unless the inquiries are made in conformity with WAC 162-12-160 and 162-12-170.
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-150, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-150, filed 5/22/74; Order 9, § 162-12-150, filed 9/23/71; § 162-12-150, filed 10/23/67.]
(1) ((It is
not an unfair practice to)) An employer or employment agency may
make inquiries as to race, sex, national origin, or disability
for purposes of affirmative action ((to correct or prevent
discrimination against persons in protected classes)), when the
inquiries are made in the manner provided in WAC 162-12-170.
(2) Data on ((race, creed, color, national origin, sex, age,
disability, or marital)) protected status shall not be recorded
on any record ((which)) that is kept in the applicant's
preemployment file, nor shall such data be kept in any other
place or form where it is available to those who process the
application. Application records ((which)) that identify the
((race, etc.,)) protected status of a particular person shall be
kept confidential, except to the extent necessary to implement an
affirmative action program as authorized by law, to permit the
compilation of statistics, and to permit verification of the
statistics by top management of the employer, or by the
Washington state human rights commission ((or other concerned
governmental agencies)).
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-160, filed 10/14/96, effective 11/14/96; Order 18, § 162-12-160, filed 1/20/75; Order 16, § 162-12-160, filed 5/22/74; Order 9, § 162-12-160, filed 9/23/71; § 162-12-160, filed 10/23/67.]
An
employer or employment agency may ask an applicant to voluntarily
state his or her ((race, creed, color, national origin, sex,
marital status, age, or disability)) protected status for ((a
nondiscriminatory purpose, and then)) reasons stated in WAC 162-12-150 and 162-12-160 only if it has satisfied all of the
following conditions:
(1) The employer shall have adopted a written equal employment policy which authorizes the inquiries as a means of monitoring its enforcement, and which sets out detailed procedures for keeping the responses confidential and separate from other records relating to applicants, in fulfillment of the requirements of WAC 162-12-160(2); and
(2) The form on which the question appears contains
statements clearly informing the applicant the information is
strictly voluntary, the reasons for asking for the information,
the uses to which the information will be put, and the safeguards
((which)) that will prevent use of the information by those who
will process the application((; and
(3) The written policy and proposed form shall have been submitted to and have been approved by the executive director of the commission or his or her designate, or they have been required or approved by an agency of the United States government which has jurisdiction to do so)).
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-170, filed 10/14/96, effective 11/14/96; Order 18, § 162-12-170, filed 1/20/75; Order 16, § 162-12-170, filed 5/22/74; Order 9, § 162-12-170, filed 9/23/71; § 162-12-170, filed 10/23/67.]
RCW 49.60.180 and
49.60.200 and these rules do not prohibit making or keeping
records of the ((race, creed, color, national origin, sex,
marital status, disability or age)) protected status of persons
after they are employed, unless the records are used for the
purpose of discrimination. To prevent improper use, records of
an employee's ((race, color, or disability)) protected status
must be ((kept separate from the employee's personnel file))
maintained in a manner accessible only on a need to know basis.
[Statutory Authority: RCW 49.60.120(3). 96-21-054, § 162-12-180, filed 10/14/96, effective 11/14/96; Order 16, § 162-12-180, filed 5/22/74; Order 9, § 162-12-180, filed 9/23/71; § 162-12-180, filed 10/23/67.]
OTS-3321.1
REPEALER
The following chapter of the Washington Administrative Code is repealed:
| WAC 162-18-010 | Corrective employment program defined. |
| WAC 162-18-020 | Purpose and policy. |
| WAC 162-18-030 | Corrective employment programs are lawful. |
| WAC 162-18-040 | Permissible components of program. |
| WAC 162-18-050 | When programs may be used. |
| WAC 162-18-060 | Termination of programs. |
| WAC 162-18-070 | Voluntary programs recommended. |
| WAC 162-18-080 | Commission approval of voluntary programs. |
| WAC 162-18-090 | Job orders specifying race, creed, color, national origin, sex, marital status, handicap or age. |
| WAC 162-18-100 | Construction -- Relation to preemployment inquiry guide. |
OTS-3322.1
AMENDATORY SECTION(Amending Order 9, filed 9/23/71)
WAC 162-20-010
Purpose.
These rules ((are adopted for the
purpose of clarifying the jurisdiction of the Washington state
human rights commission in enforcement of)) clarify the age
discrimination provisions of RCW 49.60.180 and 49.44.090, with
respect to candidates for public employment.
[Order 9, § 162-20-010, filed 9/23/71; Resolution, § 1, filed 10/18/63.]
Section 1, chapter
100, Laws of 1961, amended RCW 49.60.180 to add discrimination
because of age((,)) as an unfair practice of employers. ((RCW 49.60.180 is part of the law against discrimination and
originally covered only discrimination because of race, creed,
color or national origin.
RCW 49.60.010, which gives the human rights commission general jurisdiction and powers ". . . with respect to elimination and prevention of discrimination in employment . . . because of race, creed, color, or national origin . . ." was not amended.
RCW 49.60.120, which sets out the powers and duties of the commission, was not amended. It still reads that the commission has the power and duty to ". . . receive, investigate and pass upon complaints alleging unfair practices as defined in this chapter because of race, creed, color, or national origin."))
RCW 49.44.090((, a new section originating in chapter 100,
Laws of 1961,)) reads in part:
". . .
"Nothing contained in this section or in RCW 49.60.180 as to age shall be construed . . .; nor shall anything in this section or in RCW 49.60.180 be deemed to preclude . . .; nor shall this section be construed . . . as superseding any law fixing or authorizing the establishment of reasonable minimum or maximum age limits with respect to candidates for certain positions in public employment which are of such a nature as to require extraordinary physical effort, or which for other reasons warrant consideration of age factors."
[Order 9, § 162-20-020, filed 9/23/71; Resolution, § 2, filed 10/18/63.]
The human
rights commission shall not exercise jurisdiction over any
alleged unfair practice as to age (over forty) when ((it appears
that)) the respondent is acting under a law, ordinance or valid
rule fixing or authorizing the establishment of reasonable
minimum or maximum age limits with respect to candidates for
public employment.
[Order 9, § 162-20-030, filed 9/23/71; Resolution, § 3, filed 10/18/63.]
OTS-3323.4
AMENDATORY SECTION(Amending Order 17, filed 6/28/74)
WAC 162-28-030
Schools are places of public accommodation.
(1) All public and private schools and other educational
facilities in the state of Washington, ((public or private,))
except those operated or maintained by a bona fide religious or
sectarian institution, are "places of public resort,
accommodation, assemblage or amusement" for purposes of the
Washington state law against discrimination, chapter 49.60 RCW. ((See the definition of the quoted term in RCW 49.60.040.))
(2) ((This means that)) Definition: In this chapter, the
following words are used in the meaning given, unless the context
clearly indicates another meaning.
"Protected status" is short for the phrase, "race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person," and means the full phrase (see RCW 49.60.215).
(3) Except for conditions and limitations established by law
and applicable to all persons, regardless of protected status, it
is an unfair practice under RCW 49.60.215 for ((nonexempt))
public and private schools or educational facilities or their
agents or employees (("to)), on the basis of protected status,
to:
(a) Commit any act which directly or indirectly results in
any distinction, restriction or discrimination ((or the requiring
of));
(b) Require any person to pay a larger sum than the uniform
rates charged other persons((, or the refusing or withholding));
(c) Refuse or withhold from any person the admission,
patronage, custom, presence, frequenting, dwelling, staying, or
lodging ((. . . except for conditions and limitations established
by law and applicable to all persons, regardless of race, creed,
color, or national origin."
(3) This public accommodations section of the law against discrimination applies to schools in their relationship with students and potential students and their parents, and with members of the public who seek to use school facilities or who have an interest in how school facilities are used. Other sections of the law against discrimination govern schools in their relationship to employees (e.g. RCW 49.60.180), to those with whom schools have real estate transactions (e.g. RCW 49.60.222), and to others. RCW 49.60.030 declares a general civil right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental or physical handicap. Public schools are governed by Article IX, section 1 (equal education) and Article XXXI (Amendment 61) (equal rights) of the Washington constitution and various federal and state statutes on equal treatment of the races and sexes, in addition to the law against discrimination)) in a place of public accommodation.
[Order 17, § 162-28-030, filed 6/28/74.]
(((1))) It is an
unfair practice ((under RCW 49.60.215 for a school or educational
institution covered by that section)) for public and private
schools to fail or refuse to provide equal educational
opportunity to children who are deficient in English language
skills because of their national origin. Schools attended by
such children shall meet the following standards:
(((a))) (1) Where inability to speak and understand the
English language excludes ((national origin-minority group))
children based on national origin from effective participation
((in the educational program offered by a school district)), the
district must take ((affirmative)) steps to ((rectify the
language deficiency in order to open its instructional program to
these students)) ensure all programs and activities do not bar
such students from fully participating.
(((b))) (2) The ((affirmative)) steps taken under part
(((a))) (1) shall build competency in the English language
without detriment to the children's skills in other languages,
and without impairing or suppressing the children's cultural
identity and heritage. The steps may include
bilingual((-bicultural)) education. The appropriateness of
particular ((action)) steps to be taken will depend in part on
((whether the school or educational institution has many children
or only a few)) the number of children who require ((the steps))
this service. ((Nothing in this section is intended to preclude
inclusion in the program of children who are deficient in the
English language for reasons other than their national origin
where that is compatible with the purposes of this section.
(c) School districts must not assign national
origin-minority group students to)) (3) Students who are
deficient in English language skills because of their national
origin must not be assigned to special education classes for
((the mentally retarded)) students with mental or other
disabilities solely on the basis of criteria which essentially
measure or evaluate English language skills; nor may school
districts deny ((national origin-minority group)) children based
on their national origin access to college preparatory courses on
a basis directly related to the failure of the school system to
((inculcate)) address English language ((skills)) deficiencies.
(((d))) (4) Any ability grouping or tracking system employed
by the school system to deal with the special language skill
needs of ((national origin-minority group)) children based on
their national origin must be designed to meet such language
skill needs as soon as possible and must not operate as an
educational deadend or permanent track.
(((e))) (5) School districts have the responsibility to
adequately notify ((national origin-minority group)) parents,
regardless of their national origin, of school activities which
are called to the attention of other parents. In order to be
adequate, such notice ((in order to be adequate)) may have to be
provided in a language other than English.
(((2) This section is intended to be consistent with the
requirements of section 601 the United States Civil Rights Act of
1964, 42 USC section 2000d, and the regulations of the United
States Department of Health, Education and Welfare, 45 CFR Part
80, and HEW guidelines to selected school districts dated 10 July
1970, 35 Fed. Reg. 11595, as interpreted in Lau v. Nichols, 39 L.
ed 2d 1, 94 S. Ct. . . . ., (1974). Parts (a), (c), (d), and (e)
of paragraph (1) are taken verbatim from the 10 July 1970 HEW
guideline.))
[Order 17, § 162-28-040, filed 6/28/74.]
OTS-3324.3
AMENDATORY SECTION(Amending Order 25, filed 4/23/76)
WAC 162-40-010
Scope of chapter.
This chapter ((contains
regulations carrying out the purposes of the provisions of))
carries out the policies and practices of the commission in
connection with the law against discrimination covering credit
transactions((, and carrying out the policies and practices of
the commission in connection therewith)). The principal statutes
involved are RCW 49.60.175, 49.60.176, and 49.60.222(((9)))
(1)(j).
[Order 25, § 162-40-010, filed 4/23/76.]
(1) ((Equal Credit Opportunity Act.)) It is the policy of the
commission to coordinate its enforcement of the Washington state
law against discrimination with enforcement of the federal Equal
Credit Opportunity Act, Pub. L. 93-495, as amended ((Pub. L.
94-239, 15 USC § 1691 et seq.)), and Regulation B Equal Credit
Opportunity 12 CFR 202, to the maximum extent possible without
diminishing the impact of the state law where the ((two))
statutes differ. ((Most persons will be covered by both
statutes. However, the coverage of the federal statute is
broader than the state statute.)) Federal law alters, affects or
preempts only those regulations contained in this chapter which
are inconsistent with federal law, and then only to the extent of
the inconsistency. ((The regulations contained in this chapter
are not inconsistent with federal law if the creditor can comply
with such regulations without violating federal law.))
(2) Differences between state and federal regulations. ((The following sections should be closely reviewed, in that
these sections contain provisions unique to the state regulation
or are different due to the effect of Washington state community
property law, chapter 26.16 RCW: WAC 162-40-031; 162-40-041 (5),
(7), (12), (18), (20), (21), (22); 162-40-071; 162-40-081;
162-40-101; 162-40-111; 162-40-131 (2)(c), (4)(a), (5)(c), (6);
162-40-161; 162-40-171(5); 162-40-191; 162-40-201; 162-40-231;
162-40-241(2); 162-40-251.
(3) Informal advice. In addition to following the procedures outlined in WAC 162-40-030, persons may seek informal advice from the commission's staff on the differences between the state and federal regulations. Such inquiries should be directed to the commission's credit review officer.)) The state of Washington is a community property state; therefore, regulations governing community property may define the differences between the federal and state regulations.
[Order 34, § 162-40-021, filed 6/30/77.]
For purposes of
this regulation, unless the context indicates otherwise, the
following definitions ((and rules of construction shall)) apply:
(1) "Account" means an extension of credit. When employed in relation to an account, the word "use" refers only to open end credit.
(2) "Adverse action."
(a) ((For the purposes of notification of action taken,
statement of reasons for denial, and record retention,)) The term
means:
(i) A refusal to grant credit in substantially the amount or
on substantially the terms requested ((by)) in an ((applicant))
application unless the creditor ((offers to)) makes a
counteroffer (to grant credit ((other than in substantially the
amount or on substantially the terms requested by the applicant))
in a different amount or on other terms) and the applicant uses
or expressly accepts the credit offered; ((or))
(ii) A termination of an account or an unfavorable change in
the terms of an account that does not affect all or a substantial
portion of a ((classification)) class of a creditor's accounts;
or
(iii) A refusal to increase the amount of credit available
to an applicant ((when the applicant requests an increase)) who
has made an application for an increase in accordance with
procedures established by the creditor ((for the type of credit
involved)).
(b) The term does not include:
(i) A change in the terms of an account expressly agreed to
by an applicant; ((or))
(ii) Any action or forbearance relating to an account taken
in connection with inactivity, default, or delinquency as to that
account; ((or))
(iii) A refusal ((to extend credit at a point of sale or
loan in connection with the use of an account because the credit
requested would exceed a previously established credit limit on
the account;)) or failure to authorize an account transaction at
a point of sale or loan, except when the refusal is a termination
or an unfavorable change in the terms of an account that does not
affect all or a substantial portion of a class of the creditor's
accounts, or when the refusal is a denial of an application for
an increase in the amount of credit available under the account;
(iv) A refusal to extend credit because applicable law prohibits the creditor from extending the credit requested; or
(v) A refusal to extend credit because the creditor does not offer the type of credit or credit plan requested.
(3) "Applicant" means any person who requests or who has received an extension of credit from a creditor, and includes any person who is or may be contractually liable regarding an extension of credit other than a guarantor, surety, endorser, or similar party.
(4) "Application" means an oral or written request for an
extension of credit that is made in accordance with procedures
established by a creditor for the type of credit requested. The
term does not include the use of an account or line of credit to
obtain an amount of credit that ((does not exceed)) is within a
previously established credit limit. A "completed application
((for credit))" means an application in connection with which a
creditor has received all the information that the creditor
regularly obtains and considers in evaluating applications for
the amount and type of credit requested (including, but not
limited to, credit reports, any additional information requested
from the applicant, and any approvals or reports by governmental
agencies or other persons that are necessary to guarantee,
insure, or provide security for the credit or collateral)((;
provided, however, that the creditor has exercised)). The
creditor shall exercise reasonable diligence in obtaining such
information. ((Where an application is incomplete respecting
matters that the applicant can complete, a creditor shall make a
reasonable effort to notify the applicant of the incompleteness
and shall allow the applicant a reasonable opportunity to
complete the application.))
(5) "Community property" means community property ((under
the law of the state of Washington. RCW 26.16.030.1 See
companion definition of separate property, infra)) as defined in
RCW 26.16.030 Community property defined -- Management and control.
(6) "Consumer credit" means credit extended to a ((natural))
person ((in which the money, property or service that is the
subject of the transaction is)) primarily for personal, family,
or household purposes.
(7) "Consumer reporting agency" means any person which for
monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of
assembling or evaluating consumer credit information or other
information on consumers for the purposes of furnishing reports
on consumers to third parties. ((For purposes of this regulation
this definition shall not include creditors who report only their
own transactions or experiences between the consumer and the
person making the report.))
(8) "Contractually liable" means expressly obligated to repay all debts arising on an account by reason of an agreement to that effect.
(9) "Credit" means the right granted by a creditor to an applicant to defer payment of a debt, incur debt and defer its payment, or purchase property or services and defer payment therefor.
(10) "Credit card" means any card, plate, coupon book, or
other single credit device ((existing for the purpose of being))
that may be used from time to time ((upon presentation)) to
obtain money, property, or services on credit.
(11) "Creditor" means a person who, in the ordinary course
of business, regularly participates in the decision of whether or
not to extend credit. The term includes ((an)) the creditor's
assignee, transferee, or subrogee ((of an original creditor)) who
so participates((; but an assignee, transferee, subrogee, or
other creditor is not a creditor regarding any violation of
chapter 49.60 RCW or this chapter committed by the original or
another creditor unless the assignee, transferee, subrogee, or
other creditor knew or had reasonable notice of the act, policy,
or practice that constituted the violation before its involvement
with)). The term also includes a person who, in the ordinary
course of business, regularly refers applicants or prospective
applicants to creditors, or selects or offers to select creditors
to whom requests for credit may be made. A person is not a
creditor regarding any violation committed by another creditor
unless the person knew or had reasonable notice of the act,
policy, or practice that constituted a violation before becoming
involved in the credit transaction. The term does not include a
person whose only participation in a credit transaction is to
honor a credit card.
(12) "Credit transaction" is defined in RCW 49.60.040.((2
Consistent with Regulation B, "credit transaction" may also mean
every aspect of an applicant's dealings with a creditor regarding
an application for, or an existing extension of, credit
including, but not limited to, information requirements;
investigation procedures; standards of creditworthiness; terms of
credit; furnishing of credit information; revocation, alteration,
or termination of credit; and collection procedures.))
(13) "Extend credit and extension of credit" mean the
granting of credit in any form ((and include, but are)),
including, but not limited to, credit granted in addition to any
existing credit or credit limit; credit granted pursuant to an
open end credit plan; the refinancing or other renewal of credit,
including the issuance of a new credit card in place of an
expiring credit card or in substitution for an existing credit
card; the consolidation of two or more obligations; or the
continuance of existing credit without any special effort to
collect at or after maturity.
(14) "Good faith" means honesty in fact in the conduct or transaction.
(15) "Inadvertent error" means a mechanical, electronic, or clerical error that a creditor demonstrates was not intentional and occurred notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(16) "Marital status" ((means the state of being unmarried,
married, or separated, as defined by applicable state law. For
the purposes of this regulation, the term "unmarried" includes
persons who are single, divorced, or widowed)) is defined in RCW 49.60.040(7).
(17) "Open end credit" means credit extended ((pursuant to))
under a plan ((under)) in which a creditor may permit an
applicant to make purchases or obtain loans from time to time
directly from the creditor or indirectly by use of a credit card,
check, or other device ((as the plan may provide)). The term
does not include negotiated advances under an open end real
estate mortgage or letter of credit.
(18) "Person" is defined in RCW 49.60.040.((3 Consistent
with Regulation B, "person" may also mean a natural person,
corporation, government or governmental subdivision or agency,
trust, estate, partnership, cooperative, or association.))
(19) (("Prohibited basis" means race, color, creed, national
origin, sex and marital status.
(20))) "Separate property" is defined in RCW 26.16.010 and
26.16.020.((4
Notes:
1RCW 26.16.030. Community property defined -- Management and
control. Property not acquired or owned, as prescribed in RCW 26.16.010 and 26.16.020, acquired after marriage by either
husband or wife or both, is community property. Either spouse,
acting alone, may manage and control community property, with a
like power of disposition as the acting spouse has over his or
her separate property, except:
(1) Neither spouse shall devise or bequeath by will more than one-half of the community property.
(2) Neither spouse shall give community property without the express or implied consent of the other.
(3) Neither spouse shall sell, convey, or encumber the community real property without the other spouse joining in the execution of the deed or other instrument by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument must be acknowledged by both spouses.
(4) Neither spouse shall purchase or contract to purchase community real property without the other spouse joining in the transaction of purchase or in the execution of the contract to purchase.
(5) Neither spouse shall create a security interest other than a purchase money security interest as defined in RCW 62A.9-107 in, or sell, community household goods, furnishings, or appliances unless the other spouse joins in executing the security agreement or bill of sale, if any.
(6) Neither spouse shall acquire, purchase, sell, convey, or encumber the assets, including real estate, or the good will of a business where both spouses participate in its management without the consent of the other: Provided, That where only one spouse participates in such management the participating spouse may, in the ordinary course of such business, acquire, purchase, sell, convey or encumber the assets, including real estate, or the good will of the business without the consent of the nonparticipating spouse. (1972 ex.s. c 108 § 3; Code 1881 § 2409; RRS § 6892.)
2RCW 49.60.040: "Credit transaction" includes any open or
closed end credit transaction, whether in the nature of a loan,
retail installment transaction, credit card issue or charge, or
otherwise, and whether for personal or for business purposes, in
which a service, finance, or interest charge is imposed, or which
provides for repayment in scheduled payments, when such credit is
extended in the course of the regular course of any trade or
commerce, including but not limited to transactions by banks,
savings and loan associations or other financial lending
institutions of whatever nature, stock brokers, or by a merchant
or mercantile establishment which as part of its ordinary
business permits or provides that payment for purchases of
property or service therefrom may be deferred.
3RCW 49.60.040: "Person" includes one or more individuals,
partnerships, associations, organizations, corporations,
cooperatives, legal representatives, trustees and receivers or
any group of persons; it includes any owner, lessee, proprietor,
manager, agent or employee, whether one or more natural persons;
and further includes any political or civil subdivisions of the
state and any agency or instrumentality of the state or of any
political or civil subdivision thereof.
4RCW 26.16.010. Separate property of husband. Property and
pecuniary rights owned by the husband before marriage and that
acquired by him afterwards by gift, bequest, devise or descent,
with the rents, issues and profits thereof, shall not be subject
to the debts or contracts of his wife, and he may manage, lease,
sell, convey, encumber or devise by will such property without
the wife joining in such management, alienation or encumbrance,
as fully and to the same effect as though he were unmarried.
RCW 26.16.020 Separate property of wife. The property and pecuniary rights of every married woman at the time of her marriage or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumber or devise by will such property to the same extent and in the same manner that her husband can, property belonging to him.))
[Order 34, § 162-40-041, filed 6/30/77.]
Rules concerning applications comply with Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.5, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[]
Rules concerning evaluation of applications comply with Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.6, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[]
Rules concerning extensions of credit comply with Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.7, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[]
(((1)
Notification of action taken. A creditor shall notify an
applicant of action taken within:
(a) 30 days after receiving a completed application concerning the creditor's approval of, or adverse action regarding, the application (notification of approval may be express or by implication, where, for example, the applicant receives a credit card, money, property, or services in accordance with the application);
(b) 30 days after taking adverse action on an uncompleted application;
(c) 30 days after taking adverse action regarding an existing account; and
(d) 90 days after the creditor has notified the applicant of an offer to grant credit other than in substantially the amount or on substantially the terms requested by the applicant if the applicant during those 90 days has not expressly accepted or used the credit card.
(2) Content of notification. Any notification given to an applicant against whom adverse action is taken shall be in writing and shall contain: A statement of the action taken; a statement that the Washington state human rights commission administers compliance with the Washington state law against discrimination; and
(a) A statement of specific reasons for the action taken; or
(b) A disclosure of the applicant's right to a statement of reasons within 30 days after receipt by the creditor of a request made within 60 days of such notification, the disclosure to include the name, address, and telephone number of the person or office from which the statement of reasons can be obtained. If the creditor chooses to provide the statement of reasons orally, the notification shall also include a disclosure of the applicant's right to have any oral statement of reasons confirmed in writing within 30 days after a written request for confirmation is received by the creditor.
(3) Multiple applicants. If there is more than one applicant, the notification need only be given to one of them, but must be given to the primary applicant where one is readily apparent.
(4) Multiple creditors. If a transaction involves more than one creditor and the applicant expressly accepts or uses the credit offered, this section does not require notification of adverse action by any creditor. If a transaction involves more than one creditor and either no credit is offered or the applicant does not expressly accept or use any credit offered, then each creditor taking adverse action must comply with this section. The required notification may be provided indirectly through a third party which may be one of the creditors, provided that the identity of each creditor taking adverse action is disclosed. Whenever the notification is to be provided through a third party, a creditor shall not be liable for any act or omission of the third party that constitutes a violation of this section if the creditor accurately and in a timely manner provided the third party with the information necessary for the notification and was maintaining procedures reasonably adapted to avoid any such violation.
(5) Form of notice and statement of specific reasons.
(a) A creditor satisfies the requirements of subsection (2) above if it provides the following notice or one substantially similar:))
(("Washington state law against discrimination prohibits discrimination in credit transactions because of race, creed, color, national origin, sex or marital status. The Washington state human rights commission administers compliance with this law."))
The above notice may be combined with or follow the notice
required by 12 C.F.R. § 202.9.
(b) Statement of specific reasons. A statement of reasons for adverse action shall be sufficient if it is specific and indicates the principal reason(s) for the adverse action. A creditor may formulate its own statement of reasons in checklist or letter form or may use all or a portion of the sample form printed below, which, if properly completed, satisfies the requirements of subsection (2)(a). Statements that the adverse action was based on the creditor's internal standards or policies or that the applicant failed to achieve the qualifying score on the creditor's credit scoring system are insufficient.))
(6) Other information. The notification required by
subsection (1) may include other information so long as it does
not detract from the required content. This notification may
also be combined with any disclosures required under any other
law, provided that all requirements for clarity and placement are
satisfied; and it may appear on either or both sides of the paper
if there is a clear reference on the front to any information on
the back.
(7) Oral notifications. The applicable requirements of this section are satisfied by oral notifications (including statements of specific reasons) in the case of any creditor that did not receive more than 150 applications during the calendar year immediately preceding the calendar year in which the notification of adverse action is to be given to a particular applicant.
(8) Withdrawn applications. Where an applicant submits an application and the parties contemplate that the applicant will inquire about its status, if the creditor approves the application and the applicant has not inquired within 30 days after applying, then the creditor may treat the application as withdrawn and need not comply with subsection (1).
(9) Failure of compliance. A failure to comply with this section shall not constitute a violation when caused by an inadvertent error; provided that, on discovering the error, the creditor corrects it as soon as possible and commences compliance with the requirements of this section.
(10) Notification. A creditor notifies an applicant when a writing addressed to the applicant is delivered or mailed to the applicant's last known address or, in the case of an oral notification, when the creditor communicates with the applicant.)) Rules concerning notifications comply with Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.9, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[Order 34, § 162-40-171, filed 6/30/77.]
(((1) Accounts established on or after June 1,
1977.
(a) For every account established on or after June 1, 1977, a creditor that furnishes credit information shall:
(i) Determine whether an account offered by the creditor is one that an applicant's spouse is permitted to use or upon which the spouses are contractually liable other than as guarantors, sureties, endorsers, or similar parties; and
(ii) Designate any such account to reflect the fact of participation of both spouses.
(b) Except as provided in subsection (3), if a creditor furnishes credit information concerning an account designated under this section (or designated prior to the effective date of this regulation) to a consumer reporting agency, it shall furnish the information in a manner that will enable the agency to provide access to the information in the name of each spouse.
(c) If a creditor furnishes credit information concerning an account designated under this section (or designated, prior to the effective date of this regulation) in response to an inquiry regarding a particular applicant, it shall furnish the information in the name of the spouse about whom such information is requested.
(2) Accounts established prior to June 1, 1977. For every account established prior to and in existence on June 1, 1977, a creditor that furnishes credit information shall either:
(a) Not later than June 1, 1977
(i) Determine whether the account is one that an applicant's spouse, if any, is permitted to use or upon which the spouses are contractually liable other than as guarantors, sureties, endorsers, or similar parties;
(ii) Designate any such account to reflect the fact of participation of both spouses; and
(iii) Comply with the reporting requirements of subsections (1)(b) and (1)(c); or
(b) Mail or deliver to all account holders or all married account holders in whose name the account is carried the notice required by 12 C.F.R. § 202.10(b)(2).
(3) Requests to change manner in which information is reported. Within 90 days after receipt of a properly completed request to change the manner in which information is reported to consumer reporting agencies and others regarding an account described in subsection (2), a creditor shall designate the account to reflect the fact of participation of both spouses. When furnishing information concerning any such account, the creditor shall comply with the reporting requirements of subsection (1)(b) and (1)(c). The signature of an applicant or the applicant's spouse on a request to change the manner in which information concerning an account is furnished shall not alter the legal liability of either spouse upon the account or require the creditor to change the name in which the account is carried.
(4) Inadvertent errors. A failure to comply with this section shall not constitute a violation when caused by an inadvertent error; provided that, on discovering the error, the creditor corrects it as soon as possible and commences compliance with the requirements of this section.)) Rules concerning furnishing of Credit Information comply with Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.10, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[Order 34, § 162-40-181, filed 6/30/77.]
A consumer reporting agency
shall not report to a creditor any information relating to an
applicant's race, creed, color, national origin ((or)), sex, or
the presence of any sensory, mental, or physical disability or
that the applicant uses a trained dog guide or service animal
because of a disability.
[Order 34, § 162-40-191, filed 6/30/77.]
(1)
Establishing credit files. A consumer reporting agency shall not
refuse to establish a credit file for any person in any name
under which an applicant may open or maintain an account
((pursuant to WAC 162-40-140)). This file may be referenced with
the file of the applicant's spouse.
(2) Name on credit report. A consumer reporting agency shall issue credit reports in the name in which the request for the report was received. A credit report may include the name of the spouse or former spouse, if available.
(3) Public record information. If a consumer reporting agency places public record information in credit files and such information contains the names of both spouses, such information shall be referenced so that it is accessible in the name of each spouse.
(a) If a consumer reporting agency places public record information concerning a decree of separation or dissolution of marriage in credit files, it shall place such information in the individual credit file of each spouse.
(4) Community credit files. A consumer reporting agency may reference the credit files of married persons by listing in a spouse's file that the information is contained in the other spouse's file, provided the information is accessible by use of each spouse's name.
(5) Transfer of joint account information. A consumer reporting agency shall, upon request, transfer information from joint credit files to an individual credit file regardless of the name in which the information was originally reported.
[Order 34, § 162-40-201, filed 6/30/77.]
(((1)
Retention of prohibited information. Retention in a creditor's
files of any information, the use of which is prohibited by these
regulations, shall not constitute a violation of these
regulations where such information was obtained:
(a) From any source prior to June 1, 1976;
(b) At any time from consumer reporting agencies, and;
(c) At any time from an applicant or others without the specific request of the creditor; or
(d) At any time as required to monitor compliance with this statute, or other federal or state statute or regulation.
(2) Preservation of records.
(a) For 25 months after the date that a creditor notifies an applicant of action taken on an application, the creditor shall retain as to that application in original form or a copy thereof:
(i) Any application form that it receives, any information required to be obtained concerning characteristics of an applicant to monitor compliance with any other written or recorded information used in evaluating the application and not returned to the applicant at the applicant's request;
(ii) A copy of the following documents if furnished to the applicant in written form (or, if furnished orally, any notation or memorandum with respect thereto made by the creditor):
(A) The notification of action taken; and
(B) The statement of specific reasons for adverse action; and
(iii) Any written statement submitted by the applicant alleging a violation of this regulation.
(b) For 25 months after the date that a creditor notifies an applicant of adverse action regarding an account, other than in connection with an application, the creditor shall retain as to that account, in original form or a copy thereof:
(i) Any written or recorded information concerning such adverse action; and
(ii) Any written statement submitted by the applicant alleging a violation of this regulation.
(c) In addition to the requirements of subsections (a) and (b), any creditor that has actual notice that a complaint has been filed against it under chapter 49.60 RCW and these regulations shall retain the information required in subsections (a) and (b) until notified of final disposition of the matter by the Washington state human rights commission.
(d) In any transaction involving more than one creditor, any creditor not required to comply with WAC 162-40-180 (notifications) shall retain for the time period specified in subsection (2) all written or recorded information in its possession concerning the applicant, including a notation of action taken in connection with any adverse action.
(3) Failure of compliance. A failure to comply with this section shall not constitute a violation when caused by an inadvertent error.)) Rules concerning record retention conform to Regulation B Equal Credit Opportunity 12 CFR 202, Section 202.12, except where community property law is governed by the state of Washington at chapter 26.16 RCW, Husband and wife -- Rights and liabilities -- Community property.
[Order 34, § 162-40-210 (codified as WAC 162-40-211), filed 6/30/77.]
(((1))) Any
violation of the provisions of this chapter shall constitute an
unfair practice within the meaning of RCW 49.60.175, 49.60.176,
and/or 49.60.222(((9))) (1)(j).
(((2) Captions, catchlines and parenthetical references to
Regulation B, 12 C.F.R. pt. 202 are intended solely as aids to
convenient reference, and no inference as to the substance of any
provision of these regulations may be drawn from them.))
[Order 34, § 162-40-221, filed 6/30/77.]
Any credit program that qualifies as a special
purpose credit program under the provisions of 12 C.F.R. § 202.8
is exempt from ((the operation of)) these regulations to the
extent these regulations are inconsistent with the provisions of
12 C.F.R. § 202.8.
[Order 34, § 162-40-231, filed 6/30/77.]
((A hearing tribunal)) An
administrative law judge may order, or the commission's staff may
propose upon a finding of reasonable cause to believe a violation
of chapter 49.60 RCW has occurred, or in prefinding settlement
efforts, remedies, including but not limited to:
(1) Requiring the creditor to establish in writing nondiscriminatory criteria for the granting of credit.
(2) Requiring the creditor or consumer reporting agency to
conduct training sessions of its employees and agents in order to
insure that ((discriminatory practices cease)) the employees and
agents are aware of their responsibilities and liabilities under
the Washington state law against discrimination RCW 49.60.240,
49.60.250, and 49.60.225 and Regulation B of the Equal Credit
Opportunity Act, Section 202.14.
(3) Requiring the creditor to pay actual or special damages to aggrieved parties.
(4) Requiring the creditor to submit to the commission proof that it has ceased said discriminatory practices and implemented a policy of nondiscrimination.
(5) Requiring that the creditor conduct remedial advertising.
(6) Requiring the creditor to offer credit to the aggrieved parties.
(7) Requiring the creditor or consumer reporting agency to revise the structure and content of its files to eliminate discrimination and to remove all references to the complaint from the complainant's file.
(8) Requiring the posting of a notice in view of applicants for credit stating that it is an unfair practice for any person furnishing credit to deny or terminate such credit or to adversely affect an individual's credit standing because of such individual's race, creed, color, sex, national origin, or marital status.
(9) Requiring the distribution of these regulations to each of its employees and agents who determine, influence, or effectuate the creditor's policies and practices.
[Order 34, § 162-40-251, filed 6/30/77.]
The following sections of the Washington Administrative Code are repealed:
| WAC 162-40-031 | (202.1(d)) Commission review of forms, practices and procedures. |
| WAC 162-40-051 | (202.4) General rule prohibiting discrimination. |
| WAC 162-40-061 | (202.5(a)) Discouraging applications. |
| WAC 162-40-071 | (202.5(b)(1)) General rule concerning requests for information. |
| WAC 162-40-081 | (202.5(b)) Request for designation of membership in certain protected classes. |
| WAC 162-40-091 | (202.5(d)) Other information a creditor may not request. |
| WAC 162-40-101 | (202.5(c)) Information about a spouse or former spouse. |
| WAC 162-40-111 | (202.5(e)) Application forms: Special state requirements. |
| WAC 162-40-121 | (202.6(a)) General rule concerning use of information. |
| WAC 162-40-131 | (202.6(b)) Specific rules concerning use of information. |
| WAC 162-40-141 | (202.7(a), (b)) Opening accounts. |
| WAC 162-40-151 | (202.7(c)) Action concerning existing open end accounts. |
| WAC 162-40-161 | (202.7(d)) Signature of spouse or other person. |
| WAC 162-40-241 | (202.3) Special treatment for certain classes of transactions. |