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more employees. As a general rule, volunteers do not count toward any of these
totals.

c. Assessing Job Qualifications

For practical business reasons, it is in an employer’s best interests to hire the
most qualified applicant for a position, regardless of the applicant’s race, gender,
national origin, age, sexual orientation, or other protected category. Similarly, an
employer generally evaluates and rewards employees based on their ability to
perform the job in question. If an applicant believes that he or she has not been
hired or any employee claims an adverse job action because of a discriminatory
reason, the claimant bears the burden of proving that his or her membership in a
protected class motivated the employer’s decision or action.

Even so, the employer’s motivation may be called into question if it appears
that the claimant was not appropriately assessed against the skills and abilities
required by the job. It is a good idea to develop a job description for each position
within the organization, including essential functions of the position, required skills
and capabilities, and any other traits deemed important for successful
performance. So long as a nonprofit employer establishes such standards and
uses them to evaluate applicants for employment and employee job performance,
a claimant will have difficulty proving an unlawful motive for an adverse action. By
the same token, an employer that ignores its standards for job success—or has
none—may be found to have improperly acted based on the protected status of an
applicant or employee.

d. Disability Discrimination

(i) Hiring Issues

Under the ADA, it is illegal to ask whether an applicant has any disabilities.
An employer may describe particular skills required on the job, and ask whether the
applicant can perform those tasks with or without reasonable accommodation. An
employer may also ask an applicant to demonstrate how he or she will perform job
tasks.

Washington courts have recognized a public policy tort claim by an employee fired because of age,
even where the employer had fewer than eight employees.

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