Arnett v. Seattle General Hospital

Ott, C. J.

(dissenting)—This appeal presents a limited issue. The Washington State Board Against Discrimination, after hearing all the evidence in the cause in which Geraldine Arnett was the complainant, entered the following order:

“It Is Further Ordered that the Seattle General Hospital will accept a written application for employment from Complainant and will offer her employment in the Dietary Department in the first vacancy of a job for which she has applied, provided she meets the standard qualifications of other applicants for employment, but without regard to race, color, creed or national origin; ...”

*31The trial court modified this portion of the order to read as follows:

“ ‘It Is Further Ordered that Mrs. Arnett will be sent an application, and if it is completed and furnished to the hospital, she, when a vacancy occurs in the position sought, will be given full consideration for the vacant position and the appointment will be made to the best qualified person without any consideration to race, creed, color or national origin.’ ”

The sole issue on appeal is the legality of the modification. The majority reverse the trial court and reinstate the order of the board. I do not agree.

In my opinion, to direct the employment of a specific person, provided she meets standard qualifications, instead of permiting an employer to hire “the best qualified person without any consideration to race, creed, color or national origin,” is in itself discriminatory.

The purpose of the law against discrimination is to eliminate racial prejudice and establish equality among all persons seeking the same employment, to the end that the most qualified person will be employed, whether Caucasian or nonCaucasian. Such an interpretation meets constitutional requirements.

To construe the word “hiring,” in RCW 49.60.250, as authorizing the board to direct the employer to hire a particular person is clearly violative of the equal protection provisions of our state and federal constitutions.

We have said that, when two interpretations can be given a statute, one of which is constitutional and the other unconstitutional, we must adopt the constitutional construction. Yelle v. Bishop, 55 Wn. (2d) 286, 303, 347 P. (2d) 1081 (1959), and cases cited; State v. Twitchell, 61 Wn. (2d) 403, 411, 378 P. (2d) 444 (1963).

The trial court did not err in modifying the order of the board in this respect.

The board and the majority order that Mrs. Arnett be employed when a vacancy occurs, concluding that the hospital cannot now be trusted to act fairly and impartially upon her application.

*32This conclusion is not sustained by the record. The presumption is that people are honest. It is elementary that one who asserts dishonesty has the burden of establishing it by a fair preponderance of the evidence.

The facts established that the hospital attendant who answered the telephone advised Mrs. Arnett that applications were being accepted. Fifteen minutes later, at 11:15 a. m., Mrs. Arnett appeared to file her application. Miss Werblow was called from her work of supervising the Dietary Department employees, then engaged in the preparation and service of the noon luncheon to the patients. She refused to accept an application at that time because there was presently no vacancy. This conduct could be said to be discriminatory, if the application was refused simply because Mrs. Arnett was a Negro. This was not the case. Miss Werblow testified that she had no personal prejudice against Negroes, and that, had Mrs. Arnett advised her that she had been told that applications were being accepted, she would have given her one. Her testimony in this regard is as follows:

“Q. Had she asked you for an application would you have given her one? A. Well, I did tell her, apparently, that I had no openings, which we did not have, but I did not know she had been the person that had called in and told she might come in and fill out an application, and I would certainly not send someone away that I knew had made a special trip in to fill out an application, but many we did turn away because we do not or did not need applications at that time. Q. In other words, had you known that she had called in and had been told to come down and fill out an application, would you have given her an application? A. Yes, I am sure I would have.”

How soon a vacancy in employment might occur was not known. Miss Werblow testified that, during her 11 years as supervisor, she had had occasion to recommend only 9 persons for permanent employment in the Dietary Department.

Before the hospital authorities were aware that the board contended a technical violation of the unfair practices act was thus accomplished, the board’s investigator came to *33the hospital and was given two application forms, neither of which was ever completed or returned to the hospital by Mrs. Arnett or by anyone in her behalf.

At the hearing before the board, the good faith of the hospital authorities was further established by their offer of an application blank to Mrs. Arnett with the assurance that, if and when a vacancy occurred, her application, if filed, would receive equal and fair consideration with those of other applicants.

The Seattle General Hospital employs 30 Negroes (more than 18 per cent of its 165 full-time employees), one of whom served satisfactorily as relief help in the Dietary Department. In addition, the hospital employs 15 other nonCaucasians. There is no evidence in this record that any comparable hospital in the state of Washington or in the United States has a higher percentage of nonCaucasian employees. In addition, the evidence affirmatively establishes that Mrs. Arnett’s application, if presented, will be fairly and impartially considered in the event of a vacancy.

Certainly, under these facts, dishonesty on the part of the hospital authorities cannot be presumed by the majority of this court. Until such time as the hospital authorities have had an opportunity to pass upon Mrs. Arnett’s application, if she elects to file one, no question of discrimination is presented.

Finally, the majority state:

“. . . It is the well-established law in this state, as well as in other jurisdictions, that modifications of administrative orders by a court of review are limited to acts that are arbitrary or capricious . . .
“. . . The trial judge substituted his judgment for that of the tribunal and, in so doing, acted beyond his power.”

Again, I do not agree. The law against discrimination expressly grants to the trial court the exclusive jurisdiction to modify or set aside in whole or in part an order of the Washington State Board Against Discrimination. RCW 49.60.270 provides in part:

*34“Any respondent or complainant aggrieved by a final order of a hearing tribunal may obtain a review of such order in the superior court ... . Upon such filing the court shall proceed in the same manner as in the case of a petition by the board and shall have the same exclusive jurisdiction to grant to any party such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed. ...”
In the instant case, the trial court, in the proper exercise of its authority granted by the act, modified the decree of the board by directing the hospital to give full consideration to Mrs. Arnett’s application for employment when a vacancy occurs, and to appoint “the test qualified person without any consideration to race, creed, color or national origin.” (Italics mine.)

This court, in its review, should not substitute its judgment for that of the trial court, particularly when the legislature has specifically granted to the superior court “exclusive jurisdiction” to modify an order of the board.

For the reasons stated, the judgment of the trial court should be affirmed.

Donworth and Weaver, JJ., concur with Ott, C. J.