AGO 1951 No. 420 - Jan 10 1951
RACIAL DISCRIMINATION IN EMPLOYMENT ‑- JURISDICTION
Washington State Board Against Discrimination in Employment is without jurisdiction to bring a complaint against an employee under stated facts.
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January 10, 1951
Washington State Board
Against Discrimination in Employment
905 Dexter Avenue
Seattle, Washington Cite as: AGO 49-51 No. 420
Attention: !ttMr. Glen E. Mansfield,
Receipt is acknowledged of your letter of November 28, 1950, in which you inquire as follows:
"In passing upon a complaint which has been filed with the Washington State Board Against Discrimination in Employment, a question has arisen as to whether unfair employment practices 'as defined in section 7 of the Law Against Discrimination in Employment, (43-1 Chapter 183, Laws of 1949)' are confined to the three groups specifically mentioned, i.e., 'employers, labor organizations and employment agencies,' or whether a person not listed in any of the above categories would be within the jurisdiction of the Board in matters of discrimination in employment."
Your letter defines a "heater:"
[[Orig. Op. Page 2]]
"A colored man has been working for a number of years as a 'helper' in a steel mill. He is anxious to become a 'heater,' which is the next normal step up in the mill where he is employed. A prerequisite for the 'heater' job is a training period during which the incumbent teaches the 'helper.' This training is given on the 'helper's' free time."
and you advise that the "heater" refuses to instruct the helper. Your specific inquiry is:
"Under the law, could a complaint of discrimination in employment be brought against the 'heater' for his apparent discrimination because of color?"
Our conclusion is that the Washington State Board Against Discrimination in Employment is without jurisdiction to consider a complaint arising under the conditions of employment as described.
The Act to prevent discrimination in employment against persons because of race, creed, color or national origin was adopted in Washington in 1949 and is Chapter 183 of the Session Laws of 1949. Similar statutes have been adopted in other states, and while there is at present no such federal statute, such a bill has long been before the Congress of the United States, to the extent that the United States District Court for South Carolina inBrown v. Baskin, 80 Fed. Supp. 1017, declared:
"It is common knowledge of which the court may take judicial notice that the proposed Federal FEPC [[E.P.C.]]is legislation intended to prevent discrimination in employment according to race."
Such, likewise, is the declared purpose of the Washington Act.
The answer to your question depends upon the provisions of Sec. 7 of the Act in question.
[[Orig. Op. Page 3]]
Subdivision (1) of that section enumerates three specific unfair employment practices on the part of an employer.
Subdivision (2) of the same section enumerates three prohibited unfair employment practices on the part of any labor union.
Subdivision (3) particularizes unfair employment practices by an employment agency.
Subdivision (4) provides that no employer, employment agency or labor union may discharge, expel or otherwise discriminate against a person who has filed a charge or assisted in prosecuting the same.
Subdivision (5) makes it unlawful for any person to aid, abet, encourage or incite the commission of an unlawful employment practice.
The subdivision is as follows:
"It shall be an unlawful employment practice for any person to aid, abet, encourage, or incite the commission of any unlawful employment practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this act or any order issued thereunder."
Nowhere in the Act, then, is there any provision prohibiting an employee from refusing to instruct another employee because of race, creed, color or national origin, and you are therefore specifically advised in answer to your question that no complaint may be properly considered by you against the "heater" for the acts described.
Very truly yours,