There are several antidiscrimination statutes that public hospital districts should be aware of, including Title VII of the Civil Rights Act of 1964, amended in 1972 and by the Civil Rights Act of 1991, the Age Discrimination in Employment Act, and the Americans with Disabilities Act of 1990, amended by the Civil Rights Act of 1991. This section gives a brief overview of the acts and focuses on the aspects that are of particular relevance to public hospital districts.

The original Title VII did not apply to federal, state, or local government employers. The 1972 amendments changed the definition of "person" under section 701(a) to include state and local governments and other governmental entities. Employers under section 701(b) include any person with fifteen or more employees. So as local governments, public hospital districts are subject to Title VII if they have fifteen or more employees.

Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. Section 703. This includes the prohibition of discrimination in hiring, discharge, employment opportunities, training programs, etc. A defense for PHDs is where the classification discrimination is a bona fide occupational qualification. A bona fide occupational qualification is where it is reasonably necessary to the job to have an employee of a particular religion, sex, or national origin. An example would be a church hiring a minister of the same religious denomination.

One of the main effects of the 1991 Civil Rights Act amendments was to shift he burden of proof away from the employee towards the employer. Once a plaintiff shows discriminatory impact, the employer must now show how its actions were a job related business necessity as opposed to leaving the burden of proof with the plaintiff. In addition the employee can now win by showing that discrimination was one of the motives in the employer's decision, whereas earlier the employer could escape liability by showing it would have made the decision anyway based on nondiscriminatory factors. Who has the burden of proof may often determine who wins the case, and public hospital districts should be aware that under the 1991 amendments it is now easier for the employee to succeed in a Title VII case than it was before.

Public employees may bring suits under 42 USC section 1981, which deals with the right to make and enforce contracts on an equal basis, or 42 USC section 1983 which provides remedies for violation of rights created elsewhere, most typically constitutional violations. Section 1983 can be used only where rights from another source other than Title VII are violated, such as the Fourteenth Amendment. Section 1981 was recently amended and is discussed below under ADA remedies.

The Age Discrimination in Employment Act (ADEA) defines "employer" to include "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State...." As local government entities, public hospital districts fall under this classification.

The provisions of the ADEA are very similar in form to the protections under Title VII of the Civil Rights Act. Under the ADEA it is unlawful for an employer to discriminate against individuals on the basis of age in regards to hiring, discharge, compensation, terms, conditions, or privileges of employment. The employer also cannot discriminate in regards to employment opportunities and wage rates. Coverage is limited to individuals who are at least 40 years old. For example, there would be no liability if a public hospital district discriminated against an individual on the basis of age where that individual was 39.

The defenses available to public hospital districts are also similar to those under Title VII. An employer can show that age was a bona fide occupational qualification, that there was a seniority system in place, a bona fide benefit plan, or a reasonable excuse other than age that would not undermine the ADEA. For instance, an employer could argue that there were safety or qualification concerns associated with all or substantially all older employees (established with factual evidence), or that age discrimination was justified because individual testing would not be practical. [Western Airlines v. Criswell, 472 U.S. 400 (1985)]

A public hospital district can also ask the employee to sign a waiver releasing the PHD from individual claims, for example if a reduction in force were necessary. There are specific requirements for such releases in the Older Workers Benefit Protection Act [29 USCA 626]. The release must be "knowing and voluntary." This means the waiver must (1) be part of a written agreement that an average person could understand, (2) specifically refer to ADEA rights or claims, (3) not waive rights arising in the future, and (4) be in exchange for additional consideration. The employee must be advised in writing to consult with an attorney, and generally must be given 21 days to consider the agreement and 7 days to revoke it.

The Americans with Disabilities Act was formulated to combat disability discrimination in the workplace. It expands on and is modeled after the Rehabilitation Act of 1973. Thus, although the ADA is a relatively new regulation, employers can look to prior interpretations of the Rehabilitation Act for guidance. The ADA's coverage is broader than the Rehabilitation Act, encompassing all employers of a particular size rather than only federal employers and employers receiving federal financial assistance.

Among other things, Title II extends the prohibition against disability discrimination established in the Rehabilitation Act of 1973, section 504, to all state and local governments, including those that do not receive federal financial assistance. There is also no minimum number of employees required, as opposed to Title I which applies to employers with fifteen or more employees. What this means is that where local governments (including PHDs) have fifteen or more employees, then they are governed by Title I requirements. For local governments with fewer than fifteen employees, they are covered by Title II and section 504 of the Rehabilitation Act. In any case however, section 504 has been amended to be consistent with the requirements of Title I.

Public employers may not discriminate against individuals on the basis of disabilities, including indirect discrimination through third party contracts or arrangements. For disabled persons who are otherwise qualified for public services, Title II also prohibits exclusion from participation in or denial of benefits of the services, programs, or activities of the public entity.

There are administrative requirements under Title II peculiar to public entities. Under Title II, by January 26, 1993, each public employer was to have conducted a written self-evaluation of its services, policies and practices in light of Title II. Public entities are not required to hold public hearings on the self-evaluation, but must accept comments from the public on it and are encouraged to consult disability organizations. As with the Rehabilitation Act of 1973, public employers with 50 or more employees must keep that evaluation for three years, and other smaller public employers are encouraged but not required to keep theirs as well. In determining whether the public hospital district has 50 or more employees, the count is based on a governmentwide total, rather than counting the number of employees in a department or division of the local government.

In addition, public employers have an affirmative duty to provide information to applicants, participants, beneficiaries, and other interested persons regarding their rights under Title II. This can be done through reasonable means such as publication in handbooks or manuals that are distributed to the public, informative posters in public places, or broadcasting information over television or radio. For public entities with 50 or more employees, one employee must be designated to coordinate compliance with Title II and investigate complaints. This employee's name, office address and phone number must be made available as well.

Any employer with fifteen or more employees must conform to the requirements of Title I of the Americans with Disabilities Act (ADA). Thus, Title I applies to public and private employers, including public hospital districts, as long as they employ fifteen or more employees. The reader is advised to consult additional sources regarding Title I since public hospital districts are bound by its requirements. The general rule of Title I is that an employer cannot discriminate against a qualified individual with a disability on the basis of that disability in regards to employment, where reasonable accommodations can be made which do not pose an undue hardship to the employer.

"Disability" closely follows the original definition of "handicap" found in the Rehabilitation Act of 1973. A person is disabled if he or she has a mental or physical impairment which substantially limits one or more major life activities, has a record of such impairment, or is regarded as having the impairment.

In 1999 the United States Supreme Court interpreted the meaning of disability under the ADA. In [Sutton v. United Air lines Inc., 119 S. Ct. 2139 (1999)] the Court held that an impairment must be assessed in its corrected or mitigated condition when determining whether it substantially limits a major life activity. In [Albertson's, Inc. v. Kirkingburg, 119 S Ct. 2162 (1999)], the court held that mitigating circumstances included not only artificial devices like medication but an individual's ability to compensate for his or her impairment.

The Supreme Court also determined that an inability to perform a single particular job did not amount to a significant limitation on a major life activity. [Murphy v. United Parces Serv., Inc., 119 S. Ct. 2133 (1999)]

The ADA has enumerated several categories that are excluded from coverage. Alcoholism is a covered disability, current illegal use of drugs among other things is excluded from ADA protection. If an individual meets the definition of "disabled" then private entities as well as local governments are prohibited from discriminating against them in the workplace where reasonable accommodations can be made without undue hardship.

There is an administrative complaint process for public employees available through 28 C.F.R. 35.171a, 172-174. This avenue does not preclude suits directly against state and local governments. Remedies against public hospital districts would also fall under the remedies allowed by the Civil Rights Act (providing remedies for ADA violations) and section 504 of the Rehabilitation Act.

Punitive damages are not allowed against any entity, public or private for discrimination which has a disparate impact on a protected group, but 42 USC 1981 was recently amended to allow punitive and compensatory damages for intentional discrimination by private entities in Civil Rights and ADA claims. A special exception protects governments, government agencies, and political subdivisions (including public hospital districts) so that they cannot be assessed punitive damages. This is a significant protection for public hospital districts.

In addition, there are caps on the amount of damages recoverable based on the number of employees. If there are 15-100 employeees, compensatory and punitive damages cannot exceed $50,000. For 101-200 employees the limit is $100,000. For 201-500 employees the limit is $200,000. For 500 or more employees damages are limited to $300,000. These limits do not include backpay or expenses such as medical bills.

Washington state laws are a separate requirement that public hospital districts must follow in addition to the ADA. The ADA is not meant to replace or modify state laws; it does prevail over any conflicting state laws though. The public hospital district can think of the ADA as a minimum anti-discrimination requirement that must be met, and the state laws as laws that may place additional restrictions on the public hospital district.

RCW 49.60.180 prohibits discrimination in hiring, discharge, compensation, or in other terms or conditions of employment by an employer "on the basis of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person."

Washington state broadens the protections afforded by Title I of the federal ADA. First, "employer" includes employers with eight or more employees, rather than fifteen. [RCW 49.60.040] For public hospital districts, however, this is not a significant difference since they are covered under Title II irrespective of the number of employees.

Secondly, Washington has a broader definition of "disabled" which is defined generally under WAC 162-22-040(1) as an abnormal condition. There are no categorical exclusions as there are with Title I so Washington state covers some disabilities not acknowledged by the ADA. As one example, transsexualism is a category specifically not covered by the ADA, but it has been held to be a disability under Washington law [Doe v. Boeing Co., 64 Wn. App. 235 (1992)]

Washington state does not allow the recovery of punitive damages. Thus whether a claim is brought under federal or state discrimination laws public hospital districts are protected against punitive damages.