Ms. Hegwine applied for a clerk position with Fibre.?? The job description mentioned nothing about lifting requirements. ?There was no written job description.?? ?During the interview, the Company told her there was a 25 lb-lifting requirement.? ?She was offered the position contingent on passing a physical.?? The doctor?s intake questionnaire asked whether she was pregnant, which she was.?? That doctor required her to get a medical release from her own doctor. Ms. Hegwine?s doctor said she could lift between 20 and 30 lbs.?? She reported to work but the Company refused to let her begin her job duties. Ms. Hegwine?s doctor raised her lifting restrictions ?to ?40 ?lbs.???? The ?Company ?then decided that the position required the ability to lift 60 lbs and withdrew its offer of employment. The plaintiff filed suit for pregnancy discrimination.? ?The superior court applied a disability discrimination analysis and ruled in favor of the Company.? ?The court of appeals reversed and ruled for the plaintiff as a matter of law. ?The Supreme Court affirmed in an opinion by Justice Johnson that establishes much good law but silently overrules MacKay v. Acorn Custom Cabinetry, 127 Wn.2d 302, 898 P.2d 284 (1995), in a throw-away sentence. The Court upheld the WACs defining pregnancy discrimination as a form of sex discrimination. The ?majority ?held ?that ?HRC ?regulations ?are ?interpretative?? regulations??? to?? be?? given?? great weight by the Court so long as they do not conflict with the statute. ?The Court rejected the employer?s argument that a disability accommodation analysis applied.?? The Court further held an employer can refuse to hire a pregnant woman only based on a valid BFOQ or business necessity.? ?The Court correctly ruled the employer must show a BFOQ. Unfortunately, the Court relied on its earlier decision in Kastanis v. Education Employee Credit Union, 122 Wn.2d 483, 859 P.2d 26, 865 P.2d 507 (1993) to rule that the employee must show lack of business necessity.? ?Kastanis was based on an already?? legislatively?? overturned?? U.S.?? Supreme Court case. ?Under federal law, business necessity is an affirmative defense that arises only after the plaintiff ?proves ?discrimination.???? The ?Hegwine Court ruled the employer must produce evidence of business necessity at the second step of the McDonnell Douglas – Burdine framework once the plaintiff ?presents ?a ?prima ?facie? case ?and? the plaintiff then must show that the claim of business necessity is pretexual.?? The Court ruled that the plaintiff had shown pretext. ?It also ruled that Fibre had failed to prove a BFOQ.

The Court also ruled that Fibre per se violated the WLAD when its doctor inquired about whether Hegwine was pregnant as part of its pre- employment process. ?In doing so, the Court found that there was direct evidence of this violation. Citing a court of appeals? opinion that followed federal law, the Court ruled that Fibre could avoid liability only if it showed it would have taken the same action anyway. ?By allowing an employer to prove a ?same action? defense, the Supreme Court silently overruled MacKay, which had held that such a defense was unavailable under Washington law.?? In a concurrence joined by Justices Charles Johnson? and? Fairhurst,? Justice? Madsen? asserted that the Court should have treated the HRC WACs at issue as binding substantive law issued under the authority of the WLAD to make such regulations rather than merely interpretative regulations. Hegwine v. Longview Fibre Co, 172 P.3d 688 (2007)