Jane Doe, a biological male who was planning to have sex reassignment surgery, sought damages for employment discrimination, alleging an unaccommodated handicap under RCW 49.60, Washington's Law Against Discrimination. She
Jane Doe was hired as a Boeing engineer in 1978. At the time of hire, Doe was a biological male and presented herself as such on her application for employment. In 1984, after years of struggling with her sexual identity, Doe concluded that she was a transsexual. A transsexual is a person who
Dr. Timothy Smith, Doe's treating physician, confirmed Doe's self-assessment and diagnosed Doe as gender dysphoric. In April 1984, Doe began hormone treatments, as prescribed by Dr. Smith, as well as electrolysis treatments. In December 1984, Doe legally changed her masculine name to a feminine name.
In March 1985, Doe informed her supervisors, management and co-workers at Boeing of her transsexualism and of her intent to have sex reassignment surgery. Doe informed Boeing of her belief that in order to qualify for sex reassignment surgery, she would have to live full time, for 1 year, in the social role of a female. Doe based her belief on discussions with her treating psychologist and her physician about a treatment protocol for transsexuals known as the Harry Benjamin International Gender Dysphoria Standards (Benjamin Standards). Benjamin Standard 9 states: "Genital sex reassignment shall be preceded by a period of at least 12 months during which time the patient lived full-time in the social role of the genetically other sex." Clerk's Papers, at 313.
Upon being notified of Doe's intentions, Boeing informed Doe that while Doe was an anatomical male, she could not use the women's rest rooms or dress in "feminine" attire. Boeing informed Doe that she could dress as a woman at work and use the women's rest rooms upon completion of her sex reassignment surgery.
While Doe was an anatomical male, Boeing permitted Doe to wear either male clothing or unisex clothing. Unisex clothing included blouses, sweaters, slacks, flat shoes, nylon stockings, earrings, lipstick, foundation, and clear nail polish. Doe was instructed not to wear obviously feminine clothing such
Between June and late September 1985, Boeing management received approximately a dozen anonymous complaints regarding Doe's attire and use of the women's rest rooms. On October 25, 1985, following the receipt of a complaint about Doe using the women's rest room, Boeing issued Doe a written disciplinary warning.
Doe's transsexualism did not interfere with her ability to perform her job duties as a software engineer at Boeing. There was no measurable decline in either her work group's performance or in Doe's own job performance. There was no testimony to indicate that Boeing's dress restrictions hindered Doe's professional development.
On November 4, 1985, the first day Doe worked after the grace period, Doe wore attire that her supervisor considered acceptable. Doe responded that she was disappointed that her attire was acceptable, and that she would "push it" the next day. By "push it", Doe testified that she meant she
Doe filed a handicap discrimination action against Boeing pursuant to RCW 49.60, Washington's Law Against Discrimination (hereafter Act). The parties agreed to bifurcated proceedings and to a nonjury trial on the issue of liability. The trial court held that Doe was "temporarily handicapped" under its construction of WAC 162-22-040. The trial court further concluded that Boeing's actions reasonably accommodated Doe's condition and, thus, ruled in favor of Boeing on liability.
On appeal, Doe challenged the trial court's determination that Boeing reasonably accommodated her gender dysphoria. Boeing cross-appealed the trial court's characterization of gender dysphoria as a handicap under RCW 49.60. Finding that Doe was handicapped and that Boeing failed to accommodate her condition, the Court of Appeals reversed the judgment, entered judgment for Doe on the issue of liability, and remanded the case for determination of Doe's damages and attorney fees on appeal. Jane Doe v. Boeing Co., 64 Wn.App. 235, 823 P.2d 1159 (1992). We reverse the Court of Appeals.
This case presents two issues for review. First, is Jane Doe's gender dysphoria a "handicap" under RCW 49.60.180? We hold that Doe's gender dysphoria is not a handicap under the Act. The definition of "handicap" for enforcement purposes in unfair practice cases under RCW 49.60.180, as defined in WAC 162-22-040, requires factual findings of both (1) the presence of an abnormal condition, and (2) employer discrimination against the plaintiff because of that condition.
Second, did Boeing have to provide Doe's preferred accommodation under RCW 49.60.180? We hold that the scope of an employer's duty to reasonably accommodate an employee's abnormal condition is limited to those steps necessary to enable the employee to perform his or her job. We hold that Boeing's actions met this standard and did not discriminate against Doe by reason of her abnormal condition.
Washington's Law Against Discrimination provides that it is an unfair practice for any employer "[t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical handicap." RCW 49.60.180(2). The statute does not define "handicap". The statute delegates the authority to the Washington State Human Rights Commission (hereafter Commission) to adopt and promulgate rules and regulations to carry out the Act's provisions. RCW 49.60.120(3). Pursuant to this delegation, the Commission promulgated WAC 162-22-040, which defines handicap for the purpose of determining whether an unfair practice under RCW 49.60.180 has occurred. The regulation provides that:
WAC 162-22-040(1)(a), (b).
Under WAC 162-22-040(1)(a), the question of whether a person is "handicapped" is a question of fact and not a question of law. Phillips, 111 Wn.2d at 909. As we stated in Phillips, the WAC definition requires both the "presence" of a handicapping condition and evidence that this condition was the reason for the discharge. Phillips, 111 Wn.2d at 907. The inquiry as to the "presence" of a handicapping condition under WAC 162-22-040(1)(b) is factual in nature because it depends upon expert medical testimony, relevant medical documentation, and state of mind. Phillips, at 909-10. The question of whether a condition was the reason for a dismissal is also a factual inquiry because it depends upon documentation of the employer, testimony regarding the dismissal, and other relevant facts. Phillips, at 909.
We acknowledge that the definition of "handicap" as defined by WAC 162-22-040 is problematic. The WAC definition requires a factual finding of discrimination because of the condition in order to determine whether the condition is a "handicap" in the first place. The trial court had difficulty applying the WAC definition
Despite the circular nature of the applicable regulation, we follow our holding in Phillips that the definition of "handicap" for enforcement purposes under RCW 49.60.180, as defined in WAC 162-22-040, requires factual findings of both (1) the presence of an abnormal condition, and (2) employer discrimination against the employee plaintiff because of that condition. One is not "handicapped" for purposes of enforcing an unfair practice claim unless both elements are satisfied.
Gender Dysphoria as a Handicap
We first address the question of whether Doe's gender dysphoria is a handicap under the Act. We conclude that
Boeing argues that Doe's condition of gender dysphoria is not a "handicap" under the Act because there is no evidence of discrimination. We agree. The record substantially supports the trial court's findings that Boeing did not discriminate against Doe because of her condition. Boeing discharged Doe because she violated Boeing's directives on acceptable attire, not because she was gender dysphoric. Doe was treated in a respectful way by both her peers and supervisors at Boeing. Doe's supervisor consistently rated her work as satisfactory on her performance evaluations. While complaints were filed with Boeing management about Doe's use of the women's rest room, the record is void of any
Inasmuch as Boeing did not discharge Doe based on her abnormal condition but on her refusal to conform with directives on acceptable attire, we must turn our attention to whether Boeing discriminated against Doe by failing to reasonably accommodate her condition of gender dysphoria.
Scope of Duty To Accommodate
Doe contends that Boeing's dress code failed to accommodate her condition and, thus, was discriminatory. We disagree. The record substantially supports the trial court's findings that Boeing reasonably accommodated Doe in the matter of dress by allowing her to wear unisex clothing at work. Despite this accommodation, Doe determined unilaterally, and without medical confirmation, that she needed to dress as a woman at her place of employment in order to qualify for sex reassignment surgery. Our review of the record is limited to determining whether substantial evidence
Finding of fact 39. The trial court's findings are well supported by the testimony of Doe's own treating physician and psychologist, as well as other medical evidence. We treat findings of fact which are supported by substantial evidence as verities on appeal. Beeson v. ARCO, 88 Wn.2d 499, 50304, 563 P.2d 822 (1977). The Court of Appeals' contrary finding that Doe had a "medically documented need" to dress as a woman is error. See Doe, 64 Wn. App. at 243. "[A]n appellate court will not substitute its judgment for that of the trial court even though it might have resolved the factual dispute differently." Beeson, at 503.
Doe argues, however, that the trial court's findings on this point are irrelevant since Boeing did not have the benefit of such medical testimony prior to enforcing its dress policy. We disagree. The trial court found that Boeing's policy on accommodation of transsexuals was developed with input from Boeing's legal, medical, personnel and labor relations departments. The Boeing medical department consulted with outside experts in the field and reviewed the literature on transsexualism. The trial court also held that Boeing has a legitimate business purpose in defining what is acceptable attire and in balancing the needs of its work force as a whole with those of Doe. The record supports the trial court's findings of fact and conclusions of law that Boeing developed and reasonably enforced a dress policy which balanced its legitimate business needs with those of its employees.
Doe also argues that Boeing failed to accommodate her unique condition because its dress policy was uniformly applied. The Court of Appeals agreed, stating that "identical treatment may be the source of discrimination in the case of a handicapped employee, while different treatment, necessary to accommodate a handicap, can eliminate discrimination." Doe, at 242 (citing Holland v. Boeing Co., 90 Wn.2d 384, 388, 583 P.2d 621 (1978)). We stated in Holland, however, that identical treatment may be a source of discrimination "only when the work environment fails to take into account the unique characteristics of the handicapped person." (Some italics ours.) Holland, 90 Wn.2d at 388. While Boeing's dress code was uniformly applied, such generically applied work rules are not discriminatory per se unless they affect an employee's ability to perform his or her job. In Doe's case, "different" treatment was not required to accommodate her condition because her condition did not affect her ability to perform her job.
In determining what is a reasonable accommodation, the evaluation must begin with the job specifications and how those tasks are impacted by the abnormal condition. See Kimbro v. ARCO, 889 F.2d 869, 879 (9th Cir.1989). In the
The concept of "reasonable" accommodation is linked to necessity. The employer's duty to accommodate is appropriately limited to removing sensory, mental or physical impediments to the employee's ability to perform his or her job. Doe's gender dysphoria did not impede her ability to perform her engineering duties. Therefore, Boeing had no duty to provide any further accommodation to Doe beyond what it provided for all employees.
The definition of "handicap" for enforcement purposes under RCW 49.60.180, as defined in WAC 162-22-040, requires factual findings of both (1) the presence of an abnormal condition, and (2) employer discrimination against the employee plaintiff because of that condition. We hold that under this definition Doe was not "handicapped" for purposes of RCW 49.60.180 because Boeing did not discriminate against her because of her condition. We further conclude that Boeing's actions were reasonable, and that no affirmative accommodation of Doe's condition was required because the scope of an employer's duty to accommodate an employee's condition is
The Court of Appeals is reversed.
ANDERSEN, C.J., and UTTER, BRACHTENBACH, DURHAM, SMITH, and JOHNSON, JJ., concur.
Reconsideration denied April 5, 1993.