“Applying Means Applying”: Washington Supreme Court Holds No “Bona Fide” Intent Required to Be a “Job Applicant” Under the EPOA’s Pay-Transparency Remedies

Introduction

In Branson v. Washington Fine Wine & Spirits, LLC (Total Wine), the Washington Supreme Court addressed a pivotal enforcement question under the state’s Equal Pay and Opportunities Act (EPOA), RCW 49.58: Who qualifies as a “job applicant” entitled to remedies when an employer fails to include pay and benefits information in job postings as required by RCW 49.58.110(1)?

After the Legislature’s 2022 amendments made pay transparency mandatory in all job postings, plaintiffs Lisa Branson and Cherie Burke sued Total Wine, claiming some Indeed.com postings for retail positions lacked the required wage/salary ranges. Total Wine argued the statute protects only “bona fide” jobseekers and sought to limit discovery accordingly. The United States District Court for the Western District of Washington certified to the Washington Supreme Court the question of what a plaintiff must prove to be a “job applicant” under RCW 49.58.110(4).

The court answered decisively: a person must apply to a specific job posting, but need not prove a subjective, “bona fide” or “good-faith” intent to obtain the job. This commentary explains the decision, situates it in Washington’s statutory interpretation framework, examines the majority and dissent, surveys the precedents cited, and explores the ruling’s practical and doctrinal impact.

Summary of the Judgment

The court held that a “job applicant” in RCW 49.58.110(4) means a person who submits an application to a specific job posting. The statute does not impose a “bona fide,” “good-faith,” or “subjective intent” requirement. The Legislature’s choice not to qualify “job applicant,” especially where it has used qualifiers like “bona fide” or “otherwise qualified” in other employment statutes, was treated as intentional.

The court grounded its holding in the statute’s plain language, the EPOA’s remedial purpose to advance pay equity by front-loading pay information, related statutory provisions, and legislative history confirming the Legislature’s deliberate decision to limit remedies to “job applicants or employees” (not to all “individuals”)—but not to add any additional subjective-intent qualifier. The court declined to defer to agency policy materials from the Department of Labor & Industries (L&I) that reference “good-faith” applicants, finding them nonbinding and, in any event, not authoritative on RCW 49.58.110.

Key holdings at a glance

“Job applicant” under RCW 49.58.110(4) = a person who applied to a specific job posting; subjective intent is irrelevant.
No requirement to prove the applicant is “bona fide” or acted in “good faith.”
Legislative omissions of qualifiers are presumed intentional; courts may not insert words the Legislature did not use.
L&I’s internal policies do not control the statutory meaning and were read as resource-allocation guidance, not lawmaking.
Concerns about “absurd results” and standing are policy or constitutional issues outside the certified question; the Legislature’s 2025 “cure” amendment mitigates employer exposure for prompt corrections.

Background and Procedural Posture

Total Wine operates multiple Washington retail stores and posts openings on its website and third-party platforms like Indeed. After the 2023 effective date of the EPOA’s pay-transparency provision, plaintiffs applied to specific postings on Indeed that allegedly lacked wage/salary ranges. Burke interviewed but declined an offer. Plaintiffs brought a putative class action seeking statutory damages and other relief under RCW 49.58.070 and RCW 49.58.110.

Total Wine contended plaintiffs were not “the kind of” applicants the EPOA protects because they were not “bona fide” jobseekers. The federal district court certified the interpretive question; the Washington Supreme Court accepted review and issued this en banc opinion.

Analysis

Precedents and Authorities Cited

The court’s reasoning draws on Washington’s established interpretive canons and case law on statutory meaning, ambiguity, and agency deference:

Plain meaning and context:
- Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 (2002) — Primary objective is to ascertain legislative intent; if plain meaning is clear from text and context, enforce it.
- Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342 (2015) — Consider text, related provisions, statutory scheme.
- State v. Velasquez, 176 Wn.2d 333 (2013) — Ambiguity exists only when more than one reasonable interpretation exists.
- State v. M.Y.G., 199 Wn.2d 528 (2022) — Use dictionaries to determine ordinary meaning when statutes lack definitions.
- Broughton Lumber Co. v. BNSF Ry. Co., 174 Wn.2d 619 (2012) — Courts must give effect to plain meaning.
Negative-implication and no-insertion canons:
- Perez-Crisantos v. State Farm Fire & Cas. Co., 187 Wn.2d 669 (2017) — Inclusion of language in one section and omission in another is presumed intentional.
- Lucid Grp. USA, Inc. v. Dep’t of Licensing, 33 Wn. App. 2d 75 (2024), review denied, 4 Wn.3d 1021 (2025) — Courts must not add words the Legislature omitted.
Agency deference:
- Bostain v. Food Express, Inc., 159 Wn.2d 700 (2007); Fode v. Dep’t of Ecology, 22 Wn. App. 2d 22 (2022); Port of Tacoma v. Sacks, 19 Wn. App. 2d 295 (2021) — Deference to agency interpretations is limited to ambiguous statutes within the agency’s expertise; courts retain ultimate authority to interpret statutes.
Absurd-results avoidance:
- Tingey v. Haisch, 159 Wn.2d 652 (2007); Fraternal Order of Eagles v. Grand Aerie, 148 Wn.2d 224 (2002) — Avoid literal readings producing absurd or strained consequences; the majority concludes its reading does not do so.
- State v. Delgado, 148 Wn.2d 723 (2003); State v. Vela, 100 Wn.2d 636 (1983) — Do not presume the Legislature intended absurd results.
Certified-question scope and amici limits:
- Lopez Demetrio v. Sakuma Bros. Farms, 183 Wn.2d 649 (2015); Spokane County v. Dep’t of Fish & Wildlife, 192 Wn.2d 453 (2018) — Certified questions reviewed de novo.
- Coburn v. Seda, 101 Wn.2d 270 (1984) — Court need not consider arguments raised only by amici.
- Carlsen v. Global Client Solutions, LLC, 171 Wn.2d 486 (2011) — Court confines itself to the scope of the certified question.

The court also juxtaposed RCW 49.58.110’s wording with other Washington statutes to show how and where the Legislature deliberately uses qualifiers:

RCW 49.58.020-.030 (EPOA pay-disparity defenses framed as “bona fide job-related factors”).
RCW 49.58.110(1) (“posting” definition references “desired applicants”).
RCW 49.94.005 and RCW 49.94.010 (Ban-the-Box: “otherwise qualified” limitation).
RCW 49.44.200(5)(b) (social media credentials statute defines “applicant” as “applicant for employment” without intent qualifier).

Legal Reasoning

Plain language controls.
The statute does not define “job applicant.” Dictionaries define “applicant” as “one who applies” or “makes a formal request,” without reference to subjective intent. Reading “job applicant” in RCW 49.58.110(4) in light of the adjacent definition of “posting” (a solicitation for a “specific available position”) yields a straightforward rule: a person who submits an application responding to a specific job posting is a “job applicant.” The court also observed that “applicant” connotes a living person—foreclosing hypotheticals about bots or deceased individuals.
Statutory structure and deliberate omission of qualifiers.
Elsewhere in the EPOA and in other employment statutes, the Legislature deploys qualifiers such as “bona fide,” “good faith,” or “otherwise qualified” when it intends to narrow who is protected. It did not do so in RCW 49.58.110(4). Under Washington canons, that omission is presumed intentional, and courts may not add missing words to tighten coverage.
Legislative history confirms coverage for all applicants, not only “good-faith” ones.
In 2022, the Legislature amended the statute from “an individual” to “a job applicant or an employee” after L&I warned that “anyone” could file a complaint if left unqualified. This narrows the remedial class to those who actually applied, but the Legislature deliberately stopped there—it did not insert a “bona fide” or “good-faith” overlay. The court also noted that 2024 bills that would have added “bona fide” (H.B. 2349; S.B. 6241) did not pass, and 2025 amendments did not define “job applicant,” while adding a cure period and clarifying exclusive remedies.
Agency materials are not controlling and were themselves adjusted.
L&I is empowered to investigate complaints (RCW 49.58.060) and to adopt certain rules (RCW 49.58.090), but not to define “job applicant” for RCW 49.58.110(4). L&I’s complaint form and Q&A—which referred to “good-faith” applicants—were treated as resource-management guidance, not law. A later draft rule that would have inserted a “good-faith” definition was withdrawn after legislative feedback. The court declines to grant deference where the statute is unambiguous and the agency lacks rulemaking authority on that term.
Absurd-results arguments rejected; Legislature provided a safety valve.
The court found that requiring application to a specific posting avoids floodgates concerns while advancing the statute’s remedial purpose of employer compliance and pay equity. And the Legislature’s 2025 “cure” amendment—allowing employers five business days to correct noncompliant postings before damages attach—directly addresses concerns about inadvertent errors and outsized liability. Questions about standing, proportionality, or constitutional constraints were left for another day and were outside the certified question.

The Dissent’s View

Justice Gordon McCloud would define “job applicant” as one who submits an application “with the intent to gain an offer of employment.” In the dissent’s view:

The EPOA aims to protect real jobseekers and workers, not “bounty” plaintiffs.
A non-intent-based reading risks “absurd results,” including massive class exposure for modest technical violations, disconnected from harm.
Agency materials and legislative history (including sponsors’ statements about “job seekers”) show the statute targets applicants for whom pay data is relevant to actual job pursuit and negotiation.
The majority’s interpretation implicitly raises serious standing and constitutional questions (e.g., injury-in-fact under Article III; Washington’s “zone of interests”), though the majority disclaims deciding them.

Impact

On litigation and enforcement

Threshold to sue: Plaintiffs need only show they applied in response to a specific posting lacking required pay/benefits disclosure. No “good-faith” showing is needed.
Class actions: Classes will likely be defined by reference to specific postings (or groups of postings) that omitted pay ranges. The ascertainability and predominance analyses will center on proof of application and whether the posting was noncompliant, rather than applicant intent.
Damages: Statutory damages (the greater of actual damages or $5,000) remain available under RCW 49.58.070(1), subject to the 2025 cure period (LAWS OF 2025, ch. 383) and the statute’s exclusive-remedy structure (RCW 49.58.110(4)-(5)).
Standing and constitutional issues: The court expressly left standing, “zone of interests,” and proportionality arguments unresolved. Federal Article III standing principles will still govern in federal court; Washington standing law may be litigated in state court actions.
Agency complaints vs. private suits: L&I may, as a matter of policy and resource allocation, focus on “good-faith” complaints and economic loss, but private plaintiffs are not constrained by those internal criteria.

On employers

Compliance obligations are front-loaded: Every posting must include the “wage scale or salary range, and a general description of all of the benefits and other compensation,” including third-party postings.
Third-party platforms: Employers remain responsible for accuracy and completeness on aggregator sites (e.g., Indeed, LinkedIn). Ensure feeds, templates, and vendor agreements push required fields and prohibit truncation or suppression.
Safe harbor (effective July 27, 2025): If notified of a noncompliant posting, employers have five business days to correct or to direct third parties to correct; timely cure forecloses agency/court damages and penalties for that violation.
Recordkeeping: Retain archives/screenshots of postings, timestamps of corrections, and notices to third parties to invoke safe-harbor protection.
Training and QA: Train recruiting and marketing teams; implement automated checks to block publication of postings missing pay/benefits fields; audit periodically across all channels.

On applicants and equity goals

Access to remedies: Applicants need not prove intent, good faith, or economic loss to recover statutory damages (subject to cure). This encourages reporting and fosters uniform compliance.
Equity and bargaining: The ruling reinforces the Legislature’s goal that pay data be available before applicants expend time and resources, with particular benefits for historically underpaid groups.

What the Court Did Not Decide

Standing/Zone of Interests: Whether an applicant without economic injury has standing under Washington law was not resolved; federal cases like Spokeo and state decisions like McFarland are not addressed.
Scope of “posting” and “solicitation”: Edge cases (e.g., talent pools, general hiring portals) await future litigation.
Employer defenses beyond cure: The decision does not address due process or excessive-penalty arguments in aggregate/class contexts; such issues were raised by amici but not decided.

Complex Concepts Simplified

Plain-meaning rule: Courts start with the ordinary meaning of the statutory words, read in context. If that meaning is clear, the analysis ends; courts cannot add extra words or requirements.
“Job applicant” in this case: A person who applies to a specific job posting—nothing more. There is no legal requirement to prove the applicant actually wanted the job or would have accepted an offer.
Statutory vs. actual damages: The EPOA allows statutory damages (the greater of actual damages or $5,000) to promote compliance even where economic harm is hard to prove.
Agency deference: Courts may consider an agency’s interpretation when a statute is ambiguous and within the agency’s expertise, but courts have the final say and do not defer when the statute is unambiguous.
Absurd-results canon: Courts avoid readings that produce patently absurd results. Here, the majority found its reading reasonable, particularly given the Legislature’s newly added cure period.
Certified question: When a federal court encounters an unsettled state-law question, it may ask the state supreme court to answer it; the state court’s answer guides the federal case.
2025 cure period: Employers have five business days after notice to fix a noncompliant posting; if they cure in time, damages/penalties are unavailable for that violation.

Practical Guidance

For employers

Standardize posting templates so pay ranges and benefits cannot be omitted; require completion before publication.
Audit all channels (website, third-party sites, recruiters) regularly for compliance; contractually obligate vendors to display full pay and benefits data.
Implement a rapid-response protocol to capitalize on the five-day cure period—assign owners, keep a correction log, and send immediate correction demands to third parties.
Maintain archives of postings and dissemination records to prove compliance or timely cure.

For applicants and counsel

Evidence that you applied to a specific posting that lacked required pay/benefits is central; subjective intent to obtain the job is irrelevant under this decision.
Monitor whether the employer corrected the posting within the statutory cure window; this may affect remedies.

Conclusion

Branson crystallizes a bright-line rule for EPOA pay-transparency enforcement: to be a “job applicant,” it is enough to apply to a specific posting; no proof of “bona fide” or “good-faith” intent is required. The court’s plain-language approach resists inserting words the Legislature omitted and aligns with the EPOA’s purpose to front-load pay information and reduce inequities in hiring and negotiation.

The ruling streamlines litigation by focusing on objective facts (application + noncompliant posting), while the Legislature’s 2025 cure provision tempers exposure for employers who swiftly correct errors. Although the dissent flags unresolved standing and constitutional questions—and urges an intent-based definition—the majority leaves those issues for future cases. For now, Washington law squarely places the compliance burden on employers and unlocks statutory remedies for any person who applies to a posting that fails to disclose required pay and benefits.

Note: This commentary is for informational purposes only and is not legal advice.