(1) 7b refuse to hire any person because of age, sex, marital
status, sexual orientation, race, creed, color, national origin, honorably
discharged veteran or military status, 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, unless based upon a bona
fide occupational qualification.
(Emphasis added.) We have therefore always treated WLAD references to
employers to include prospective employers where appropriate. E.g., Scrivener v.
Clark Coll., 181 Wn.2d 439, 334 P.3d 541 (2014); of. Robinson, 519 U.S. at 341
(noting that Title VII ofthe Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241,
does not use any "temporal qualifier").
Second, ESD 171 argues that the "Rinctionally similar" test Washington
courts have applied in other cases should apply here, thus restricting RCW
49.60.210(l)'s scope to the plaintiffs current employer. This is simply not a
context in which that test is appropriately applied. Washington courts employ the
"functionally similar" test to determine whether the defendant had sufficient
control over the plaintiffs employment to be held personally liable for
12
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Jin Zhu V. ESD 171, No. 94209-9
discriminatory actions. See Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App.
927,930,965 P.2d 1124(1998)(coworker without supervisory authority is not
personally liable for retaliation). As the entity making the hiring decision, ESD
171 had complete control over Zhu's possible employment, and the "functionally
similar" test has no relevance here.
A prospective employer, including ESD 171, easily fits within AtVLAD's