(dissenting)—I believe the Franklin County Sheriff's Office has failed to meet its burden of factually proving it was reasonably necessary to hire a man to fill the position for which Betty Sellers applied. Furthermore, the majority incorrectly applies the law defining a bona fide occupational qualification (BFOQ) to this fact situation.
By discussing a BFOQ defense, the majority admits discrimination occurred. A BFOQ can exist only to justify an act of discrimination. Betty Sellers inquired about the position and was told that no women were to be hired; the fact that she took no further steps to apply is irrelevant. Arnett v. Seattle Gen. Hosp., 65 Wn.2d 22, 395 P.2d 503 (1964); see also Pittsburgh Press Co. v. Pittsburg Comm'n on Human Relations, 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973); Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972); Gillin v. Federal Paper Board Co., 479 F.2d 97 (2d Cir. 1973). Sellers has made a prima facie case. The burden has shifted to the County to show a legitimate, nondiscriminatory reason for rejecting her. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Rose v. Hanna Mining Co., 94 Wn.2d 307, 311-13, 616 P.2d 1229 (1980).
The first issue upon which I differ from the majority is the nature of the job for which Sellers applied. The majority has selected testimony which supports its view. There is other evidence which supports the contrary view, adopted by the trier of fact. The statement of purposes and objectives of the work release program, approved by the superior court judges and the work release director stated:
The staff function is as follows:
1. Screen and select participants.
2. Counsel and provide assistance from community resources in specific fields of mental hygiene treatment.
3. Determine means for educational and occupational training.
*8104. Develop and maintain records and provide participant progress reports.
5. Establish participant's financial program and maintain financial records concerning earnings and disbursements.
6. Coordinate and establish communication lines between all departments associated with the program.
7. Promote community understanding and acceptance.
(Italics mine.) The document also states the objectives of the work release program:
1. To provide counseling and training to promote understanding and motivation for the potential fulfillment of healthy attitudes, and
2. To implement employment for economic responsibility, and to meet financial obligations.
The primary purpose of the aforementioned objectives, is to help prepare the participant to live in society with the respect and security for self, family and community.
Finally, under the section giving a program description for staff and function, the document stated:
The staff is comprised of the Program Director and two counselors, a male and a female. The female counselor will be responsible for secretarial duties in addition to her counseling activity. . . .
Shirley Billingsley, the current director of the work release program in Franklin County, indicated the job involved "job counseling." She testified she performed the bookkeeping and secretarial duties for the program, provided transportation and occasionally searched returning program members. Billingsley testified she did not do mental health counseling; when that was required she referred men and women to outside mental health counselors such as Chuck Pierson, who argued strongly for a male counselor.5
*811The majority isolates three areas where, because of the predominantly male prison population, a female counselor would be unable to perform the job. Two of these, the need to transport prisoners and perform strip searches, are insignificant6 aspects of the job and at best inconvenience a female counselor. The real thrust of the majority opinion is that the type of counseling involved requires a male rather than a female because some male inmates do not "relate well" to female counselors. This was primarily the testimony of Mr. Pierson, in whose opinion some 10 percent of the male population of the prison might not "like" a female counselor. Pierson suggested the program worked less well having only a female counselor. But how much so—how far short it fell of its basic goal—he did not say. Nor does he say that those who cannot relate to a counselor are entirely deprived of benefit—he says only that it is easier to help these people, without sex barriers being a problem. Contrary to Pierson's testimony is that of Ray Messegee, director of the adult corrections division for the Department of Social and Health Services. He feels, based upon research and 18 years of experience, that sex makes absolutely no difference in a counseling setting. Although the counselors hired for his programs have tended, overall, to average half male and half female, from the beginning his program hired work release counselors without regard to sex. In fact, in one work release setting—the city jail in Pasco—there were eight female counselors and no males at all, to deal with an all-male inmate population.
Lane Merryman, supervisor of the Pasco work release program, said he felt a male would be helpful to the program, but concluded he would certainly hire a woman if there were no equally qualified men. And perhaps the most damaging of all is the testimony of Sheriff Boyles of Franklin County. Boyles is ultimately responsible for hiring *812counselors in the work release program in Franklin County. Although he wanted to hire a man, Boyles admits Shirley Billingsley has run the program, by herself, for 4 years and has done an excellent job. Boyles said that if male applicants for the other position had been less qualified, he might well have hired Sellers. In fact, he said he might have hired her if he had only seen her application, because he never expected to attract anyone, male or female, with her qualifications.
There is a considerable difference of opinion as to the desirability and necessity of having a male counselor to complement Shirley Billingsley. I suggest the original trier of fact was best suited to make this determination. The Human Rights Commission found against the County; we should give its decision respect, as we would any trier of fact.
The majority states that as a practical matter the definition of a BFOQ under WAC 162-16-020(2) (a) is equivalent to 42 U.S.C. § 2000e-2(e) (1976). However, the logical result of concluding the two definitions are equivalent is that the federal tests for a BFOQ should control exclusively. The majority uses a somewhat softer interpretation, somewhere between "strict necessity" and "contributing to," but leaning toward "contribute to." Nonetheless, the language in WAC 162-16-020(2) (a) is written in the alternative, "essential to, or will contribute to". This language is far broader than permitted under the federal definition of a BFOQ. Because of the parallel nature of the state and federal statutes, definitions under the state statute, RCW 49.60, are controlled by the breadth of the United States Civil Rights Act of 1964, Title 7, 42 U.S.C. § 2000e (1976). Rose v. Hanna Mining Co., supra; Ellingson v. Spokane Mortgage Co., 19 Wn. App. 48, 54 n.5, 573 P.2d 389 (1978). See also WAC 162-30-010. The Human Rights Commission relied exclusively upon federal law. Furthermore, the Commission made no attempt to defend its regulation defining sex discrimination. I would hold WAC 162-16-020(2) (a) is overbroad and should be changed to reflect the current *813status of federal law; state laws cannot stand if they impede, burden or frustrate the purpose of Title 7. Lindsay v. Seattle, 86 Wn.2d 698, 708, 548 P.2d 320, cert. denied, 429 U.S. 886, 50 L. Ed. 2d 167, 97 S. Ct. 237 (1976).
The majority distinguishes the federal test for BFOQ in Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir. 1969) (weight lifting limitations) and Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 U.S. 950, 30 L. Ed. 2d 267, 92 S. Ct. 275 (1971) (rejecting argument that all-female airplane cabin attendants better "reassured" passengers and demonstrably improved average performance), because those cases dealt with restrictions limiting a job category exclusively to one sex, whereas Franklin County sought a male-female balance in the two positions. If one assumes that sexual balance of any two positions is desirable, hiring only a man to fill the second position when the first was filled by a woman is logically necessary. But making that initial assumption begs the question. The decision to have sexual balance in any two positions is itself a discriminatory decision, subject to scrutiny under Weeks and Diaz.
Therefore, the better analysis of the action of Franklin County is whether under Weeks v. Southern Bell Tel. & Tel. Co., supra, all, or substantially all, 2-woman counseling teams would be unable to perform their required functions; or whether under Diaz v. Pan Am. World Airways, Inc., supra at 388, the essence of the operation would be undermined by hiring all-female counselors. See also Dothard v. Rawlinson, 433 U.S. 321, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977); Rose v. Hanna Mining Co., supra.
The majority opinion speaks only to Equal Opportunity Commission Guidelines found at 29 C.F.R. § 1604.2(a)(iii) (1979), which deal with preferences of clients. It argues the preference of clients in this case is so important as to make the function of the work release program impossible without mixed-sex counseling. This relates most closely to the "essential function" test of Diaz. Yet, as noted, at best only 10 percent of male inmates are unable to relate to female *814counselors; and the County was unable to provide testimony that indicated the essential purpose of the program would fail because of this; or that work release participants were unable to find jobs.
The fact that Sheriff Boyles would have hired Sellers if no equally qualified male were available recognizes the program could be carried on with only female counselors. The essential functions of the program were to find jobs and counsel inmates in dealing with the real world. No testimony suggested the program was failing of this purpose for want of a male counselor. The testimony suggested the program might run somewhat better with a male counselor—that it would be more convenient to the prison staff—not that it failed.
Therefore, under the narrow view imposed by federal law, I would find WAC 162-16-020(2)(a) invalid and I would find no BFOQ.
Notwithstanding, I would be inclined to apply this decision prospectively. As noted in Judge Roe's concurring opinion, the County had the right to rely upon what I consider an invalid regulation. I would award Sellers nominal damages and modify the other sanctions imposed by the Human Rights Commission—that Sellers is to be given for 1 year (rather than 2 years as awarded by the Commission) a first option on any job opening in Franklin County for which she is qualified.
Finally, the County, and amicus, argue that the Human Rights Commission is an illegal tribunal. This argument was rejected in Rody v. Hollis, 81 Wn.2d 88, 500 P.2d 97 (1972).
Based on the foregoing, I would affirm the actions of the Human Rights Commission except as to damages.
Reconsideration denied February 10, 1981.
Review granted by Supreme Court April 23, 1981.
Pierson apparently would not have hired a woman under any circumstances. When asked if he would hire a more qualified woman, he said "skills are something that we can train people to acquire. We can't get people to change their sex." Transcript of Human Rights Commission hearing at 235, lines 15-17.
Nothing in the job description signifies searching prisoners is within the classification of this position. Query: If a prisoner is unsafe to transport, is the prisoner safe enough to be in a work release program?