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SUBJECTS › PERSONNEL › Sample Nepotism Policies
Reviewed 06/09

Sample Nepotism Policies

nep-o-tism: Favoritism shown or patronage granted to relatives, as in business. [French nepotisme, from Italian nepotismo, from nepote, nephew, from Latin nepos, nepot-.1   The American Heritage Dictionary of the English Language, Third Edition

Contents

Introduction

In the State of Washington, all cities -- first class cities, second class cities, towns, or unclassified cities, operating under all plans or forms of government -- mayor-council plan, council-manager plan, or commission plan -- have the authority granted by the legislature to establish rules and regulations governing the internal operation of the respective city or town. This authority is exercised by the elected city or town council or commission.

Generally, it might be considered unfair to refuse to consider hiring or retaining an employee simply because of a degree of relationship with another person. Such discrimination factors are covered in RCW 49.60.180, RCW 49.60.190, and RCW 49.60.200, dealing with unfair practices. However, the Washington Administrative Code, at 162-16-250, clarifies such regulation under the term, "business necessity." This section of the WAC spells out the duties of the state Human Rights Commission.

A number of cities and towns in the state of Washington have adopted a regulation -- most often in the form of an ordinance -- prohibiting nepotism in some degree. In order to assist other cities and towns considering such a regulation, several nepotism ordinances and policies have been collected as samples in this Web page.

The relevant portions of the applicable statutes and codes authorizing such actions are as follows:

WAC 162-16-250 Discrimination because of spouse.

(1) Authority. This section implements RCW 49.60.180, 49.60.190 and 49.60.200, which declare that discrimination because of marital status or sex is an unfair practice of employers, labor unions, and employment agencies, respectively.

(2) General rule and exception. In general, discrimination against an employee or applicant for employment because of (a) what a person's marital status is; (b) who his or her spouse is; or (c) what the spouse does, is an unfair practice because the action is based on the person's marital status. It may also be an unfair practice because of sex, where it burdens women much more than men, or men much more than women. However, there are certain circumstances where business necessity may justify action on the basis of what the spouse does, and where this is so the action will be considered to come within the bona fide occupational qualification exception to the general rule of nondiscrimination. "Business necessity" for purposes of this section includes those circumstances where an employer's actions are based upon a compelling and essential need to avoid business-related conflicts of interest, or to avoid the reality or appearance of improper influence or favor.

(3) Examples.

(a) The following are examples of actions which are unfair practices within the general rule against discrimination because of marital status or sex:

(i) Refusal to hire a person because her or his spouse has a job and is "making good money."

(ii) Refusal to hire a person because his or her spouse is already employed by the same employer, except for particular positions where business necessity requires exclusion of relatives, consistently with this section.

(iii) Discharge of a person because he or she has married another employee of the same employer, unless the spouses occupy positions where business necessity requires the exclusion of relatives, consistent with this regulation, and neither spouse can be transferred to a position where the business necessity reason doesn't apply.

(b) The following are examples of business necessity situations where it is not an unfair practice for an employer to impose rules limiting the employment of spouses:

(i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;

(ii) Where one spouse would be responsible for auditing the work of the other;

(iii) Where other circumstances exist which would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer's interest and their own;

(iv) Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies, or others with whom the employer deals.

(4) Least discriminatory practice required. Where business necessity requires the limitation of employment opportunity of spouses, the means chosen to meet the business necessity shall be those which have the least adverse impact on spouses or members of either sex. For example:

(a) The exclusion should be limited to the job, work crew, shop, or unit where the reason for the exclusion exists, and should not bar the person from the whole work force, unless the reason applies to the whole work force;

(b) When it is necessary to exclude a person because of what his or her spouse does, then the employer, employment agency, or labor organization should not determine which spouse shall keep the job.

(5) Limitations on duty. Except in the special circumstances covered in subsection (4), an employer, employment agency, or labor union has no duty under the law against discrimination to give special treatment to spouses. For example, the employer of both spouses has no duty to schedule their working hours or vacations simultaneously, or to take the spouses preferences on these points into account beyond what is done for employees whose spouses work elsewhere. And, of course, an employer may refuse to hire an applicant spouse for any reason other than marital status, sex, or other unfair practices under the law against discrimination. However, mixed fair and unfair motives are not a defense to a charge of discrimination, so the identity or status of a spouse must be given no weight at all in the employment decision unless the business necessity exception applies.

(6) Burden of justification. Since the bona fide occupational qualification is an exception to the general rule of nondiscrimination, the burden is on the employer, employment agency, or labor organization to show that the discrimination is justified. (See Weeks v. Southern Bell Telephone and Telegraph Company, 408 F.2d 228 (5th Cir. 1969)). Employers, employment agencies, and labor organizations should therefore inform themselves of the circumstances before concluding that the exclusion of a spouse is justified, and be prepared to furnish that justification to the commission in case a complaint is filed or other investigation is made.

(7) Relative other than spouses. Spouses are within a protected class under the law against discrimination (marital status); other relatives are not. The commission therefore has no role in regulating an employer's treatment of relatives other than spouses, unless discrimination because of sex, race, etc. should be involved. However, a business necessity justification for treating spouses adversely would almost always apply with equal force to other close relatives. Therefore, any employment actions that are taken against spouses but not against other close relatives will be considered to be prima facie discriminatory for lack of business necessity justification.

(8) Advice of commission. The commission's staff will give informal advice on compliance with this regulation to persons who request it. Persons who want formal guidance may petition the commission for a declaratory ruling under RCW 34.04.080 and WAC 162-08-620.

This collection is not designed to be a complete list of cities having adopted nepotism regulations. It is simply meant to furnish examples. The contents are offered as samples rather than models. It is recommended that your city or town attorney be consulted before incorporating any of these provisions into your own regulations.

City Ordinance Provisions

Library Resources (Paper copies only)

Library Loan Request Form

  • AWC Sample Policies (no date) - Nepotism
  • Federal Way Personnel Policies & Procedures, section 4.2 (no date) - Nepotism
  • Mercer Island Personnel Rules (no date) - Nepotism
  • Moses Lake Personnel Policies (no date) - Nepotism
  • Port Angeles Personnel Policy Manual, section 2.02 (no date) - Nepotism