OFFICES AND OFFICERS ‑- STATE ‑- BOARD AGAINST DISCRIMINATION ‑- DEPARTMENT OF LABOR AND INDUSTRIES ‑- AUTHORITY UNDER CHAPTER 100, LAWS OF 1961

OFFICES AND OFFICERS ‑- STATE ‑- BOARD AGAINST DISCRIMINATION ‑- DEPARTMENT OF LABOR AND INDUSTRIES ‑- AUTHORITY UNDER CHAPTER 100, LAWS OF 1961.

(1) The board against discrimination has the exclusive authority to administer complaints alleging discrimination because of age.

(2) Chapter 49.08 RCW does not authorize the department of labor and industries to adjust differences between employer and employee resulting from discrimination because of age.

(3) The department of labor and industries has exclusive authority to approve age limits established by employers or licensing agencies pursuant to § 5, chapter 100, Laws of 1961.

(4) Chapter 100, Laws of 1961, prohibits discrimination because of age only with respect to persons between the age of forty and sixty-five years.

(5) Chapter 100, Laws of 1961, applies only to those employers who have eight or more employees and are not religious or sectarian organizations organized for private profit.

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                                                                 August 10, 1961

Honorable Malcolm B. Higgins
Executive Secretary
Washington State Board Against Discrimination
206 Capitol Park Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 53

Dear Sir:

            You have requested the opinion of this office on certain questions concerning chapter 100, Laws of 1961, which prohibits discrimination in employment because of age.  We paraphrase your specific questions as follows:

            1. Does the board against discrimination have the authority to administer complaints alleging discrimination because of age?

            2. Does the department of labor and industries, through the industrial relations division, have the authority, pursuant to chapter 49.08 RCW to adjust differences between employers and employees resulting from discrimination because of age?

            3. Does the industrial relations division of the department of  [[Orig. Op. Page 2]] labor and industries, pursuant to § 5, chapter 100, Laws of 1961, have the exclusive authority to approve such "age limits" as may be established by employers or licensing agencies due to the physical requirements, or training requirements of a particular position of employment?

            4. Is discrimination because of age prohibited as an unfair practice only with respect to persons between the ages of forty and sixty-five years of age, as set forth in § 5, chapter 100, Laws of 1961?

            5. In accordance with the definition of "employer" set forth in RCW 49.60.040, does the prohibition against discrimination because of age apply to those employers who employ less than eight persons or are religious or sectarian organizations not organized for profit?

            We answer these questions as follows:

            1. The board against discrimination has the authority to administer complaints alleging discrimination because of age.

            2. The department of labor and industries does not have the authority to adjust differences between employers and employees resulting from discrimination because of age.

            3. The industrial relations division of the department of labor and industries has the exclusive authority to approve such "age limits" as may be established by employers, or licensing agencies.

            4. The prohibition against discrimination because of age only applies to persons between the ages of forty and sixty-five.

            5. The prohibition against discrimination because of age does not apply to employers of less than eight persons, or to employers who are religious or sectarian organizations not organized for profit.

                                                                     ANALYSIS

            Chapter 100, Laws of 1961, amends certain provisions of chapter 37, Laws of 1957, (chapter 49.60 RCW) the basic law against discrimination, to include discrimination because of age with the other unfair practices based upon race, creed, color, and national origin.  As amended, (1) RCW 49.60.180 provides that it is an unfair practice for an employer to refuse to hire any person because of his age, or to terminate or discriminate against any employee because of his age; (2) RCW 49.60.190 provides that it is an unfair practice for any labor union to refuse membership to or to expel, or to discriminate against, any person because of his age; (3) RCW 49.60.200 provides that it is an unfair practice for any employment agency to discriminate against any person because of his age.

             [[Orig. Op. Page 3]]

            The procedures to be followed by an individual who has been discriminated against are contained in subsequent provisions of chapter 49.60 RCW.  For example, RCW 49.60.230 provides for the filing of a complaint with the board by a person claiming to be aggrieved by an alleged unfair practice, by an employer or principal whose employees refuse to comply with the act, and also for the issuance by the board of a complaint where it has reason to believe any person is engaging in an unfair practice.  The procedures to be followed by the board in administering complaints and in correcting any violation are set forth in RCW 49.60.240 through 49.60.270.

            In answer to your first question, we think it is clear from the foregoing statutory provisions that the legislature has vested the sole authority to administer complaints and other matters arising out of alleged unfair practices of discrimination because of age in the state board against discrimination.  It is fundamental that where the intent of the legislature is clear from a reading of the statute, as in the present instance, there is no room for construction.  Johnson v. Department of Labor & Industries, 33 Wn. (2d) 399, 205 P. (2d) 896 (1949),Ernst v. Kootros, 196 Wash. 138, 82 P. (2d) 126 (1938).

            Your second question is concerned with whether the director of labor and industries has any authority to settle differences arising between employers and employees because of alleged discrimination based upon age.  Section 5, chapter 100, Laws of 1961, provides in pertinent part as follows:

            "It shall be an unfair practice:

            "(1) For an employer or licensing agency, because an individual is between the ages of forty and sixty-five, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment:  PROVIDED, That employers or licensing agencies may establish reasonable minimum and/or maximum age limits with respect to candidates for positions of employment, which positions are of such a nature as to require extraordinary physical effort, endurance, condition or training, subject to the approval of the director of labor and industries through the division of industrial relations.

            "(2) For any employer, licensing agency or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which  [[Orig. Op. Page 4]] expresses any limitation, specification or discrimination respecting individuals between the ages of forty and sixty-five: . . ." (Emphasis supplied.)

            RCW 43.22.270 provides in pertinent part as follows:

            "The director of labor and industries, through the division of industrial relations, shall:

            "(1) Promote mediation in, conciliation concerning, and the adjustment of, industrial disputes, in such manner and by such means as may be provided by law;"

            Further, RCW 49.08.010 provides that upon the application of any employer or employee who are having differences, the director of labor and industries shall investigate the dispute and attempt to resolve it.  In the event the dispute cannot be resolved, the director is to endeavor to have the parties consent to have the matter submitted to a board of arbitrators, which decision is final.  We note, in passing that the former statute was enacted in 1921, and the latter in 1903.  In addition both of those statutes are concerned with industrial or labor disputes which have been generally defined as:

            ". . . a dispute between an employer and his employees about wages, hours, working conditions, or who shall speak for employees, between those who alone could be directly concerned in such controversy.  Donnelly Garment Co. v. International Ladies' Garment Workers' Union, D.C. Mo., 20 F.Supp. 767."  24 Words and Phrases, Labor Dispute, p. 28.

            It appears clear that a complaint based upon discrimination because of age does not constitute an industrial or labor dispute within the foregoing definition.

            In addition, the only state agency which is authorized to administer the provisions of chapter 49.60 RCW relating to the prevention or control of unfair practices involved in discrimination matters is the board against discrimination.  Under the rule of statutory construction that the provisions of a special act will control as against the provisions of a general act, (1 Sutherland Statutory Construction § 2022) the department of labor and industries is authorized only to perform those functions set forth in § 5, chapter 100, Laws of 1961,supra.  Thus, the director, through the division of industrial  [[Orig. Op. Page 5]] relations, is limited to approving the reasonable minimum and/or maximum age limits set by employers or licensing agencies and is not authorized to attempt to settle any differences arising between employers and employees because of alleged discrimination based on age.  The responsibility for processing complaints for all alleged acts of discrimination under chapter 49.60 RCW is vested in the board against discrimination.

            In answer to your third question, the statutory provision, supra, delegating the authority to the department of labor and industries to approve reasonable minimum and/or maximum age limits is clear, and unambiguous on its face, and therefore not subject to statutory construction.  The legislative intent is clearly expressed that the department of labor and industries is the agency most capable of making these determinations based upon its existing functions relating to labor and conditions of employment.  This exclusive delegation of authority however does not preclude the board against discrimination from making recommendations to the department of labor and industries concerning this matter, pursuant to its authority under RCW 49.60.110, which provides:

            "The board shall formulate policies to effectuate the purposes of this chapter and may make recommendations to agencies and officers of the state or local subdivisions of government in aid of such policies and purposes."

            Your fourth question is concerned with whether the unfair practices prohibited in the act are limited only to acts of discrimination against individuals between forty and sixty-five.  The only language in chapter 100, Laws of 1961, relating to specific age limits is found in § 5, supra.

            In construing a statute, resort must be had to its context and subject matter, and when from the language of the statute the legislative intent is clearly apparent it must prevail.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948).  In the present instance, the legislature has clearly prohibited discrimination between the ages of forty and sixty-five in § 5, supra.  That taken with the fact that the basic problem which caused the legislature to enact chapter 100, Laws of 1961, is the problem of how to utilize the mature worker who is too young to retire but who finds difficulty in getting a job, makes it apparent that the discrimination with which the legislature was concerned was the worker between forty and sixty-five.  Such an interpretation is in accord with the rule of statutory construction that meaning must be given a statute which is most consonant with its policy or obvious purpose.  Clark v. Housing Authority Etc., 25 Wn. (2d) 419, 171 P. (2d) 217 (1946),State v. Robinson, 67 Wash. 425, 121 Pac. 848 (1912).

             [[Orig. Op. Page 6]]

            Accordingly, you are advised that pursuant to § 5, chapter 100, Laws of 1961, the unfair practice of discrimination occurs only in the age bracket of forty to sixty-five years and only in those positions of employment which do not require particular physical requirements or training.

            In answer to your fifth question, we conclude that the term "employer" as used throughout chapter 100, Laws of 1961, and which is not defined therein, is governed by the definition set forth in RCW 49.60.040 as follows:

            "'Employer' includes any person acting in the interest of an employer, directly, or indirectly, who has eight or more persons in his employ, and does not include any religious or sectarian organization, not organized for private profit;"

            Accordingly, you are advised that only those employers are covered by the act who have eight or more employees and are not religious or sectarian organizations organized for private profit.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GILBERT C. VALLEY
Assistant Attorney General