Washington Legislature Passes the Washington State Diversity, Equity, and Inclusion Act to Permit Affirmative Action in Public Employment, Education, and Contracting

For 20 years, public agencies in Washington State have been barred from favoring or discriminating against applicants, employees, or contractors based on sex, ethnicity, color, race, or national origin.  On the last day of its regular 2019 session, April 28, 2019, the Washington State legislature eased that bar, passing the Washington State Diversity, Equity, and Inclusion Act, proposed by the citizens of Washington State as Initiative 1000 (I-1000). I-1000 becomes effective 90 days after the end of the regular legislative session, July 27, 2019.

The Washington State Diversity, Equity, and Inclusion Act’s Application to Public Employment Decisions

I-1000 amends the Washington State Civil Rights Act, which Washington voters passed in 1998 as Initiative 200 (I-200). I-200 banned “preferential treatment” based on race, sex, color, ethnicity, national origin, and age in public employment, education, and contracting.

I-1000 amends I-200 in two distinct ways—first, it redefines “preferential treatment.” Preferential treatment is expanded to include three additional protected categories: sexual orientation; the presence of any sensory, mental, or physical disability; and honorably discharged veteran or military status.  Unlike under I-200, however, impermissible preferential treatment under I-1000 is now defined to mean “the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for a public education, public employment, or public contracting opportunity.” (Emphasis added) I-200 did not define preferential treatment, and was generally viewed as prohibiting any consideration of the listed protected categories in public employment decisions. Thus, while ostensibly retaining a prohibition on preferential treatment in public employment, I-1000 actually significantly limits the scope of what kinds of preferential treatment the law forbids.

Second, I-1000 expressly authorizes “affirmative action.” Affirmative action is specifically defined as a policy in which an individual’s race, sex, ethnicity, national origin, age, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status are factors considered in selecting candidates for opportunities in public education, public employment, and public contracting. Sexual orientation is not included as a permitted basis for affirmative action in I-1000.

In short, with I-1000’s passage, public entities may now consider a person’s protected status (limited to race, sex, color, ethnicity, national origin, age, disability, or military/veteran status, and excluding sexual orientation despite I-1000’s other references to it) as necessary to remedy documented past discrimination against, or underrepresentation of, marginalized groups. To remedy such ills, public entities may take a person’s whole background, including protected status, into account, and may implement affirmative action rules and policies, such as recruitment or participation goals. Public entities may not, however, favor a less-qualified employee, applicant, or contractor over a more qualified candidate based on protected status alone, and may not use quotas.

The Commission on Diversity, Equity, and Inclusion

The Initiative further directs the creation of a new Commission on Diversity, Equity, and Inclusion, composed of gubernatorial appointees and legislators.  The Commission will be responsible for planning, directing, monitoring, and enforcing each state agency’s compliance with I-1000, and publishing an annual report on agency progress towards that goal.

The Washington State Diversity, Equity, and Inclusion Act’s Likely Impact in the Public and Private Sectors

As an initiative of the people, I-1000 is now law without the Governor’s signature.  But by the morning after its passage, opponents of I-1000 had already filed a referendum to put I-1000 on Washington’s November ballot if they can secure the signatures of 130,000 registered Washington voters by late July 2019.

If I-1000 remains in force, its effect on public employment and contracting remains unclear. Under pre-existing law, public entities could already pursue thoughtful recruitment and outreach designed to reach a diverse applicant pool. And, as before, public entities still cannot hire a less-qualified applicant or select a less-qualified contractor based on their protected status alone. These hard limits on government decision-making remain largely unchanged. Instead, I-1000 may most impact public entity policy, as government agencies are encouraged to examine existing disparities and develop meaningful remedial programs under the oversight of a new state commission. Given I-1000’s application to government contracting decisions, private government contractors may also want to consider reflecting on issues of diversity and equity in their own workplaces.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.