REDEFINITION OF UNFAIR PRACTICES

OFFICES AND OFFICERS ‑- STATE ‑- HUMAN RIGHTS COMMISSION ‑- EDUCATION ‑- SCHOOLS ‑- REDEFINITION OF UNFAIR PRACTICES

It would not be unconstitutional under Amendment 61 to the Washington state Constitution for the legislature to amend the state law against discrimination so as to declare certain classifications by sex not to constitute an unfair practice.

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                                                                  March 26, 1974

Honorable Jack Metcalf
State Senator, 21st District
Box 4
Mukilteo, Washington 98275                                                                                                               Cite as:  AGLO 1974 No. 38

Dear Sir:

            By recent letter you have asked for our opinion, in the light of Amendment 61 to the Washington State Constitution, as to the constitutionality of a certain proposed amendment to RCW 49.60.222 ‑ a part of the state law against discrimination.  In our opinion, this proposal, if enacted, would not violate that constitutional amendment.

                                                                     ANALYSIS

            Amendment 61 was added to the Washington State Constitution through voter approval of House Joint Resolution No. 61 at the November, 1972, general election.  The full text of this provision reads as follows:

            "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.

            "The Legislature shall have the power to enforce, by appropriate legislation, the provisions of this Article."

            The bill you would have us consider in the light of this constitutional amendment is a proposal to amend RCW 49.60.222, which presently reads as follows:

            "It is an unfair practice for any person, whether acting for himself or another, because of sex, marital status, race, creed, color or national origin:

            "(1) To refuse to engage in a real estate transaction with a person;

            "(2) To discriminate against a person in the terms, conditions or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith;

             [[Orig. Op. Page 2]]

            "(3) To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

            "(4) To refuse to negotiate for a real estate transaction with a person;

            "(5) To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is so available, or to fail to bring a property listing to his attention, or to refuse to permit him to inspect real property;

            "(6) To print, circulate, post or mail or cause to be so published a statement, advertisement or sign, or to use a form of application for a real estate transaction, or to make a record or inquiry in connection with a prospective real estate transaction, which indicates, directly or indirectly, an intent to make a limitation, specification, or discrimination with respect thereto;

            "(7) To offer, solicit, accept, use or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection therewith;

            "(8) To expel a person from occupancy of real property; or

            "(9) To attempt to do any of the unfair practices defined in this section."

            The bill would amend this statute by adding the following disclaimer of coverage to it:

            "Notwithstanding any other provision of this section, it shall not be an unfair practice:

             [[Orig. Op. Page 3]]

            "(a) To limit use of children's camps, dormitories, wards, nursing homes or other such facilities to persons of one sex, or on the basis of marital status;

            "(b) To limit to one sex the use or occupancy of that part of residential rental property where bathroom or sleeping facilities are used in common by more than one tenant, or by one or more tenants and the landlord;

            "(c) For a nonprofit organization which has as its purpose the protection of or promotion of the interests of persons of a single sex to operate facilities for the exclusive use of persons of that sex;

            "(d) For any person to separate the sexes or give preference to or limit use of real property to persons of one sex or to make distinctions on the basis of marital status where the Washington State Human Rights Commission by regulation or ruling in a particular instance has found the practice to be appropriate for the preservation of important social values and to be not substantially in derogation of the purposes of this chapter."

            The reason that this bill would not be in violation of Amendment 61,supra, in our opinion, is that the bill would simply declare it not to be an "unfair practice," for the purposes of the state law against discrimination, for persons to be classified on a basis of sex under the several limited circumstances covered by the amendatory language as above set forth.

            Amendment 61 serves as a restriction upon the enactment of legislation which, itself, classifies persons irrationally on the basis of sex.  Accord, our recent opinion to State Senator Joe Stortini (AGLO 1973 No. 52) [[on May 21, 1973 an Informal Opinion AIR-73552]], copy enclosed.  The proposed statutory amendment here in question, however, would not establish any such prohibited classifications by law, but, instead, would merely cause it not to  [[Orig. Op. Page 4]] be "an unfair practice" within the meaning of the law against discrimination for the various sex classifications enumerated in the amendment to be established by individuals involved in the various activities listed; i.e., the operation of children's camps or dormitories, the rental of residential real property, etc.  We do not believe that our state supreme court, if presented with a challenge to the constitutionality of this bill, would hold it to be in violation of Amendment 61, supra.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General