Washington: Amendment Allows Affirmative Action in Public Employment, Education, and Contracting

The Washington State Civil Rights Act was recently amended through citizen Initiative 1000, the Diversity, Equity, and Inclusion Act (I-1000).  I-1000 adds protected categories, defines “preferential treatment” based on protected categories, and expressly permits public agencies to undertake “affirmative action.”

Previously, public agencies were already prohibited from giving preferential treatment (either in favor of, or in discrimination of) applicants, employees, or contractors based on sex, ethnicity, color, race, or national origin.  I-1000 adds sexual orientation, sensory/mental/physical disability, and honorably discharged veteran/military status to the list of protected categories.  It defines prohibited preferential treatment as “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.”

I-1000 also expressly permits “affirmative action,” defined as a policy in which the protected category is a considered factor (in concert with the individual’s whole background) when selecting candidates for opportunities in public education, public employment, and contracting—with the exception of sexual orientation.  Public agencies may implement affirmative action rules and policies, such as recruitment or participation goals.  However, a less qualified person cannot be considered a more qualified person solely because of protected status or need to fulfill a quota.

Currently, the amendments contained in I-1000 will go into effect by July 27, 2019.  However, if a referendum filed by opponents of I-1000 gain sufficient signatures, the initiative will be placed on the November general election ballot to determine if the amendments will remain in place.