It is Now Illegal for State Agencies to Unnecessarily Create Disparate Impacts on the Ability of Native Americans to Find Employment

Court of Appeals Makes Impactful New Ruling Under Washington Law Against Discrimination


On March 12, 2019, the Court of Appeals of the State of Washington, Division III, issued an opinion in Howell v. Department of Social and Health Services holding that an employee or applicant for employment can sue a third party who interferes in an individual’s right to obtain and hold employment without discrimination.

In this case specifically, the decision means that a Native American mother can bring a lawsuit against the Department of Social and Health Services (DSHS) for interfering in her job prospects through its use of a policy that disproportionately impacts Native Americans seeking jobs in the health care field.

In Ms. Howell’s case, the Child Protective Services (CPS) finding was issued based on allegations that she was driving under the influence of alcohol, even though charges were not pursued, and Ms. Howell has been sober for almost seven (7) years.

“Because of this new decision, Ms. Howell will have the opportunity to require DSHS to create a process that allows her to prove she is capable of safely working in the health care field,” said Northwest Justice Project (NJP) attorney Cina Littlebird.

Additionally, “Any state agency policy that unnecessarily interferes with the ability of minorities to obtain employment based on their past involvement with the criminal justice system or child welfare is now suspect,” said Northwest Justice Project attorney Scott Crain.

DSHS does not have to maintain this system where CPS founded findings act as automatic employment disqualifiers, causing such disparate harm to Native American individuals across the state.

It could rework its record-keeping system to provide the opportunity for individuals to demonstrate rehabilitation or to demonstrate suitability for a particular job; it could periodically review all founded findings to assess the appropriateness of expungement (sealing or erasing a conviction or record of arrest in the eyes of the law); or it could provide some other mechanism for expungement analogous to how records of criminal convictions are handled. This lawsuit asks DSHS to do just this.

The Muckleshoot Indian Tribe and Kalispel Tribe of Indians have submitted legal documents in support of Ms. Howell’s request.