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persons in the excluded class would be unable to efficiently perform the duties and
the essence of the operation would be undermined by hiring anyone in that
excluded class. A nonprofit employer should consult an attorney before failing to
hire an otherwise qualified individual on the basis of a BFOQ.

Another limited carve-out from the non-discrimination laws exists for
religious organizations. In particular, under Title VII, religious organizations are
permitted to give employment preference to members of their own religion but
only for institutions whose “purpose and character are primarily religious.” Factors
include: whether the organization’s articles of incorporation state a religious
purpose; whether its day-to-day operations are religious (e.g., are the services the
entity performs, the product it produces, or the educational curriculum it provides
directed toward propagation of the religion?); whether it is nonprofit; and whether
it is affiliated with, or supported by, a church or other religious organization. This
exception is not limited to religious activities of the organization. The WLAD also
has a provision exempting religious employers.

It should also be noted that, while non-discrimination generally requires
equal treatment of applicants and employees, two specific categories of
protection—religion and disability—may require different treatment in order to
accommodate individual needs. Accommodation of religious practices may mean
deviating from regular work schedules or requirements. The same is true in the
case of disability, discussed separately below.

b. Coverage of Employers

Whether any or all of these laws will directly govern a particular nonprofit
organization will depend on the size of the organization. Title VII applies to all
employers engaged in an industry affecting commerce who have 15 or more
employees, as does the federal Americans with Disabilities Act (“ADA”). The
definition of “affecting commerce” has been construed broadly, and many nonprofit
organizations have found themselves on the wrong side of a Title VII lawsuit. The
federal Age Discrimination in Employment Act governs employers of 20 or more
employees.

The WLAD applies to the employment practices of employers of eight or
more employees and the Seattle Municipal Code applies to employers with four or
2

2 Even an employer too small to be covered directly by Title VII or the WLAD should be cautious in
basing an employment decision on a characteristic otherwise protected by the statutes. Note that

WASHINGTON NONPROFIT HANDBOOK -215- 2018