February 29, 2012 in City

Rights panel poorly understood

By The Spokesman-Review

Controversy over a proposed deal to rehire a Spokane police sergeant after he was fired for an off-duty drunken driving collision has focused attention on an often-misunderstood state agency involved in the settlement negotiations – the Washington Human Rights Commission.

The deal called for the city of Spokane to rehire fired Sgt. Brad Thoma and purported to be mediated by the Human Rights Commission, based on a claim that the city failed to accommodate the officer’s disability of alcoholism. However, Sharon Ortiz, the commission’s executive director, said she had not signed off on the deal that had been brokered by an investigator in the commission’s Spokane office and that it would need further review.

On Monday, Thoma’s attorney, Bob Dunn, said the former officer had asked the commission to withdraw the civil rights complaint. The Spokane City Council on Monday night unanimously rejected the proposed settlement.

Said Ortiz on Tuesday, “It is not the practice of the commission to settle claims that clearly don’t meet the elements of proof necessary to prevail in a claim of discrimination.” She added that she first learned about the Thoma case by reading about it in The Spokesman-Review.

The Washington Human Rights Commission was born in the civil strife that emerged in Seattle after World War II, when black workers were prevented from contracting for labor on the docks. In response to major civil rights demonstrations, the Legislature created the Washington Board Against Discrimination. The board’s authority applied only to discrimination in employment as a result of race, color or national origin.

In 1971, the board became the Washington Human Rights Commission and was authorized to enforce state law against discrimination, which today is among the nation’s broadest civil rights statutes, RCW4960.

According to the statute, “The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right.”

The statute goes beyond federal civil rights law in its protections against discrimination based on disability.

In fact, in 2007 after the Washington Supreme Court ruling attempted to water down state law by bowing to the narrow definition of disability in the federal Americans with Disabilities Act, the Legislature reaffirmed its commitment to the broader state statute.

Under the statute, “a disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated or whether or not it limits the ability to work generally or work in a particular job,” and includes “any mental, developmental, traumatic, or psychological disorder.”

However, neither state nor federal law has been interpreted to oblige an employer to provide accommodation to an alcoholic employee who has not asked for accommodation and who denies having a disability, Ortiz said.

In the Thoma case, Dunn said the city knew about Thoma’s alcoholism but didn’t help him with it. The city said it did not know Thoma was an alcoholic until after the collision.

According to the U.S. Commission on Civil Rights, “courts routinely hold that employees cannot blame misconduct on alcoholism,” nor does an employer “have to forgive misconduct because the misconduct resulted from alcoholism.”

The work of Ortiz and her staff of 26 employees is overseen by a five-person commission appointed by the governor. Yvonne Lopez Morton, of Spokane, is chairwoman of the commission, which includes Deborah Lee, of Olympia; Charlene Strong, of Seattle; and Shawn Murinko, of Olympia, who was appointed while a resident of Spokane. There is one vacancy on the commission.

Human rights complaints typically result in a finding of reasonable cause or no reasonable cause, or are resolved by a settlement agreement without a finding. In some cases, findings may result in prosecution by the state attorney general’s office.

In many cases, complainants withdraw to pursue damages in civil court.

In the meantime, Ortiz said, “We are reviewing the file and are going to make a decision on whether we want to be party to a settlement or not.”

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