*902¶1 Brooke Howell appeals the dismissal with prejudice of her discrimination claim asserted against the Department of Social and Health Services (DSHS). She contends that its rules and policies, including its practice of retaining records of "founded" filings of child neglect by individuals have a disparate impact on the ability of Native Americans like herself to obtain work. We hold that under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, an employee or applicant for employment can state a cause of action against a third party who interferes with the individual's right to obtain and hold employment without discrimination.
¶2 A difficulty with the parties' remaining arguments below and on appeal is that the record is not well developed *903with evidence of the policies of DSHS that are challenged, nor has DSHS presented evidence of high-level policy considerations that might afford it discretionary immunity. The fact that some of the rule- and policy-making authority of DSHS on which Ms. Howell appears to rely was delegated to the Department of Children, Youth, and Families in agency reorganizations effective after her complaint was filed exacerbates the lack of clarity. Ms. Howell may need to amend her complaint.
¶3 On the present record, DSHS's arguments for dismissal fail. We reverse the trial court's order that dismissed Ms. Howell's complaint with prejudice and remand for further proceedings.
PROCEDURAL BACKGROUND
¶4 After Brooke Howell sued DSHS for alleged discrimination in violation of the WLAD, it filed a CR 12(c) motion for judgment on the pleadings, which the trial court granted. Our review requires us to assume *371the truth of facts alleged in Ms. Howell's complaint as well as hypothetical facts. We summarize the allegations of her complaint and her argument.
DSHS's complained-of conduct
¶5 Ms. Howell bases DSHS's asserted liability on the manner in which it has exercised its discretion to impose background check requirements, and retain and make available findings from adjudicative hearings that can disqualify persons like her from employment.
¶6 She makes the following allegations:
¶7 Under RCW 43.43.832 et seq., many Washington employers are required to obtain a background check when hiring or retaining an individual in a position potentially involving unsupervised access to children or vulnerable adults.
¶8 Pursuant to authority delegated in chapter 26.44 RCW, it is DSHS that investigates and makes administrative *904findings against persons alleged to have committed child abuse or neglect.
¶9 DSHS is required by statute to "keep records concerning founded reports of child abuse or neglect as the department determines by rule." RCW 26.44.031(3). If a finding becomes final either after an administrative hearing or by default (because an accused person fails to appeal a notice of the finding), the accused's name is placed in a database of persons with administrative findings of abuse, neglect or other employment-disqualifying conduct.
¶10 By rule, DSHS keeps "founded" findings of abuse or neglect as required by DSHS records retention policies. WAC 388-15-077.1 Under DSHS's records retention policies, a final finding of abuse or neglect is nearly permanent and may not be expunged or removed from the Child Protective Services' database for at least 35 years from the date of the finding.
¶11 A founded finding of child abuse or neglect is an automatic disqualification for certain types of health care employment, including types of health care employment that one might obtain with a nursing assistant degree.
¶12 The administrative hearing process granted under RCW 26.44.125 to a person who asks for review of a finding of child neglect by DSHS does not consider how the person's actions are related to her suitability for affected employment. The appeal does not consider how long the disqualification is appropriate, mitigating factors justifying removing the finding, or whether the severity of the accusation or alleged conduct warrants a permanent sanction on the many foreclosed employment opportunities.
*905¶13 For persons with criminal convictions, some, but not others, may demonstrate their character, competence, and suitability to work with minors or vulnerable adults. Persons with founded findings of abuse and neglect are never allowed to demonstrate their character, competence and suitability, however.
¶14 Ms. Howell alleges that DSHS has options to expunge records without jeopardizing its policy goal of protecting vulnerable people.
Application to Ms. Howell
¶15 Ms. Howell identifies her race as Native American and is an enrolled member of the Yakama Indian Nation. In 2015, she entered a Nursing Assistant Certified (NAC) training program, desiring to become certified and work in the health care field. In the middle of her school year and before beginning clinical rotations, she learned that DSHS had made a "founded" finding of child neglect against her several years earlier. Clearing a background check with DSHS is a mandatory part of completing the NAC program.
*372Ms. Howell was not allowed to complete the NAC program.
¶16 The finding against Ms. Howell followed her arrest in November 2012 for driving under the influence of alcohol (DUI). Ms. Howell's three children were in the car with her. She was charged with DUI and reckless endangerment and addressed the charges by entering a diversion program.
¶17 Unknown to Ms. Howell at the time, DSHS made an administrative finding of child neglect against her for the incident leading to her arrest for DUI. It sent notice by certified mail to Ms. Howell but the notice went unclaimed and was returned to DSHS.
¶18 Upon learning of the finding and that it would prevent her from completing NAC training and becoming licensed, Ms. Howell appealed the founded finding in June 2015. An administrative law judge reversed the finding, but DSHS's Board of Appeals reinstated the finding.
*906¶19 In January 2017, Ms. Howell asked DSHS to expunge her founded finding because of the effect of the finding on her ability to work. She asserts that she has complied with all of the conditions of her diversion, no longer drinks alcohol, and has no record of a criminal conviction as a result of the 2012 incident. DSHS did not respond to her request.
Disparate impact claim
¶20 Ms. Howell's complaint alleges on information and belief that Native Americans are approximately four times more likely than white persons to have founded findings of child abuse or neglect discovered through background checks of DSHS records. She alleges that DSHS's policy of retaining the founded findings for so long, without review or an opportunity for expungement, disparately impacts the ability of Native Americans to obtain work, education, training, and licensure in a field of their choosing.
¶21 Ms. Howell alleges that DSHS has no legitimate reason for indefinitely maintaining and reporting the findings. She alleges that even if DSHS has a legitimate reason for indefinitely maintaining its findings, a less discriminatory alternative to its current practice exists: DSHS "could ... permit accused persons to expunge their findings after demonstrating their rehabilitation; reduce the period of retention of the record on a background check when there is no evidence of future harm to children; or periodically review all records to determine ongoing need to retain any given record in its background check database." Clerk's Papers (CP) at 9.
The motion to dismiss
¶22 After answering and amending its answer to the complaint, DSHS moved under CR 12(c) for an order dismissing the complaint. It argued, first, that its conduct is not subject to the WLAD for two reasons: because it is not the employer, and the WLAD imposes liability for employment *907discrimination only on a plaintiff-employee's employer; and because the prohibition on Ms. Howell's being employed as an NAC is the direct result of an initiative of the people that bars the employment as long-term care workers of individuals with "founded" findings. Alternatively, it argued that its actions are entitled to discretionary immunity.
¶23 Ms. Howell did not allege in her complaint that DSHS was an employer. She responded to DSHS's motion to dismiss by arguing that her complaint's allegations that DSHS's practices "exert[ ] direct control over the list of prospective candidates available to ... employers" and "foreclosed [her] chosen career path," "raise a factual issue significant enough that it should not be dismissed at this early stage." CP at 44.
¶24 In responding to the motion, Ms. Howell conceded that the November 2011 Initiative Measure No. 1163, codified at RCW 74.39A.056, raises a statutory bar to employment as a "long-term care worker" for individuals found to have committed child neglect. But she argued that she is not challenging that law; she is challenging DSHS's dissemination of its findings without a method to avoid racial disparity. Alternatively, she argues that other types of employment would remain available to NACs but for DSHS's practice.
*373¶25 The trial court granted DSHS's motion and dismissed the complaint. Ms. Howell appeals.
ANALYSIS
I. MS. HOWELL'S COMPLAINT PLEADS A PRIMA FACIE CASE OF DISPARATE IMPACT
¶26 Ms. Howell first argues that her complaint pleads a prima facie case of disparate impact; hence, the trial court erred in dismissing it. "[T]he WLAD creates a cause of action for disparate impact." Kumar v. Gate Gourmet Inc., 180 Wash.2d 481, 503, 325 P.3d 193 (2014). The *908theory of liability prevents employers from adopting facially neutral policies that create or perpetuate discriminatory effects. Id. "To establish a prima facie case of disparate impact, the plaintiff must show that (1) a facially neutral employment practice (2) falls more harshly on a protected class." Id. If a plaintiff establishes disparate impact under the WLAD, the burden of production shifts to the defendant to produce evidence of a business necessity for the challenged practice. Hegwine v. Longview Fibre Co., 162 Wash.2d 340, 356, 172 P.3d 688 (2007). The elements and evaluation of a disparate impact claim under the WLAD are the same as those under federal law. Id. at 353-54 & n.7, 172 P.3d 688.2
¶27 Requiring criminal background checks has been held to be an employment practice that can have a disparate impact on a protected class. By way of illustration, in enforcement guidance provided in 2012 for entities covered by Title VII, the Equal Employment Opportunity Commission (EEOC)-"build[ing] on longstanding court decisions and existing guidance documents that [it] issued over twenty years ago"-described the type of statistical information that will demonstrate that a protected class has more contact with the criminal justice system and a higher incarceration rate. EEOC Enforcement Guidance No. 915.002 (Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964).3 It explained:
With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer's criminal record screening policy or practice disproportionately *909screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.
Id. § V.
¶28 The EEOC guidance publication cites leading cases that identify how the employer can demonstrate a business necessity for its criminal background check practice if disparate impact is shown. In the 1975 Eighth Circuit Court of Appeals decision in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1293, the court identified three aspects of the information sought (later termed the " Green factors") relevant in assessing whether a criminal background exclusion is job related for a position and consistent with business necessity:
• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence; and
• The nature of the job held or sought.
EEOC Enforcement Guidance, supra, § V(B)(1) (footnotes omitted). In El v. Southeastern Pennsylvania Transportation Authority , 479 F.3d 232, 244-45 (3d Cir. 2007), the Third Circuit Court of Appeals "develop[ed] the statutory analysis in greater depth," according to the EEOC guidance publication, when it held that Title VII requires employers to justify criminal record *374exclusions by demonstrating that the exclusions " 'accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not.' " EEOC Enforcement Guidance, supra, § V(B)(1) (quoting El , 479 F.3d at 245 ).
¶29 DSHS does not dispute that an employer's criminal background checks might support a disparate impact claim. It contends that Ms. Howell did not plead the required "employment practice" because she did not plead facts that would establish that DSHS was her employer.
*910A. Standard for dismissal and standard of review
¶30 A party can move the trial court for judgment on the pleadings under CR 12(c). A motion under CR 12(c) raises the same issue as a motion to dismiss under CR 12(b)(6) : whether a complaint states a claim for which a court can grant relief. Didlake v. State, 186 Wash. App. 417, 422, 345 P.3d 43 (2015). One practical difference between motions under CR 12(b)(6) and 12(c) is timing, since a CR 12(b)(6) motion is made after the complaint but before the answer, while a CR 12(c) motion is made after the pleadings are closed. P.E. Sys., LLC v. CPI Corp., 176 Wash.2d 198, 203, 289 P.3d 638 (2012). A CR 12(c) motion is proper when a defendant relies for the motion on an affirmative defense, since an affirmative defense is external to the complaint. E.g., Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 & n.1 (7th Cir. 2012). "A court may dismiss a complaint under CR 12 only if 'it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery.' " Didlake , 186 Wash. App. at 422, 345 P.3d 43 (quoting Tenore v. AT&T Wireless Servs, 136 Wash.2d 322, 330, 962 P.2d 104 (1998) ).
¶31 When ruling on a motion under CR 12(c), we "must assume the truth of facts alleged in the complaint, as well as hypothetical facts, viewing both in the light most favorable to the nonmoving party." Didlake, 186 Wash. App. at 422, 345 P.3d 43. We do not accept legal conclusions as correct, even when couched as facts in the complaint. Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). We review a trial court's decision under CR 12(c) de novo. Didlake , 186 Wash. App. at 422, 345 P.3d 43.
*911B. For DSHS to be liable under the WLAD, it need not be Ms. Howell's actual or prospective employer
1. The general civil right declared by RCW 49.60.030(1) contains no language limiting "[t]he right to obtain and hold employment without discrimination" to a right vis-à-vis an actual or prospective employer
¶32 The right to seek the remedies sought in Ms. Howell's complaint is provided by RCW 49.60.030(2), which provides that "[a]ny person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both," together with certain costs and remedies authorized by other state and federal laws. In Marquis v. City of Spokane, 130 Wash.2d 97, 112-13, 922 P.2d 43 (1996), our Supreme Court agreed with the Washington Human Rights Commission's interpretation of the WLAD as having two provisions that create rights to be free from invidious discrimination in the workplace, one of which makes no reference to the plaintiff being an employee or the defendant being an employer. This was critical because the plaintiff in Marquis was an independent contractor, not an employee.
¶33 The commission had adopted a regulation, former WAC 162-16-170(2) (1995) (presently codified at WAC 162-16-230(2) ), which interprets RCW 49.60.030(2) as authorizing private civil actions to remedy not only the "unfair practices of employers" that are identified by RCW 49.60.180, but also violations of RCW 49.60.030(1) 's declaration of a general civil right to be free from discrimination in obtaining and holding employment.4 Marquis, 130 Wash.2d at 112-13, 922 P.2d 43.
*375*912¶34 The "unfair practices" provision of the WLAD, RCW 49.60.180, uses the words "employer" and "employee," and the commission's regulation states that "[a] person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to [its] protection." Former WAC 162-16-230(2) (2001). But the commission's rule provides that an independent contractor is protected by the general right declared by RCW 49.60.030, a protection that does not use the words "employer" or "employee," and that the commission states is "enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the [commission]." Former WAC 162.16.230(2).
¶35 In Marquis , the Supreme Court agreed that the plain language of RCW 49.60.030(1) supports the commission's conclusion that it creates a general civil right that can be privately enforced, describing it as "broadly stated, ... to be liberally construed, and ... meant to prevent and eliminate discrimination in the State of Washington." 130 Wash.2d at 112, 922 P.2d 43. Based on the WLAD's plain language and Marquis , Ms. Howell did not have to plead facts establishing that DSHS was her employer in order to assert a claim under RCW 49.60.030(1).5
*9132. We need not decide whether RCW 49.60.180 supports an "interference" or "indirect employment" theory of liability against a covered employer who is not a plaintiff's actual or prospective employer
¶36 Relying on federal case law construing Title VII, Ms. Howell argues that we should construe RCW 49.60.180, the "unfair practices" provision of the WLAD that is limited by its terms to practices by employers, as applying even where a covered employer interferes with the employment opportunities of an employee who is not its employee or prospective employee.
¶37 Title VII includes a definition of "employer," but it does not illuminate the word's ordinary meaning. Instead, it identifies which employers (applying a common law meaning6 ) are subject to the law's requirements-in other words, which employers are covered by the federal act. The statutory definition imposes employee-numerosity and commerce-connection requirements and exempts certain employers from liability.
¶38 Federal courts have required that to state a cause of action, a plaintiff must be someone's employee or applicant. E.g., Salamon v. Our Lady of Victory Hosp. , 514 F.3d 217, 226 (2d Cir. 2008) ("Once a plaintiff is found to be an independent contractor and not an employee ... the Title VII claim must fail."). They have required that the defendant be a covered employer. E.g., Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n.3 (9th Cir. 1980) (liability might attach "where a defendant subject to Title VII interferes with an individual's employment opportunities with another employer" (emphasis added) ). For the *914most part, they have not required that the defendant be the plaintiff's direct employer. Many federal courts have recognized claims where a covered employer interferes with the employment opportunities *376of someone else's employee.7 The EEOC's compliance manual also continues to support an interference theory. It characterizes itself as following Supreme Court decisions requiring a common law agency analysis in determining employment status, stating that a Title VII plaintiff must establish both that she or he is someone's common law employee, and that the defendant is a covered common law employer of other employees. See EEOC COMPLIANCE MANUAL § 2-III(B)(3)(a)(i)8 , and EEOC Enforcement Guidance No. 915 (eff. May 20, 1987) (control by third parties over the employment relationship between an individual and her or his direct employer).9
¶39 In light of Ms. Howell's ability to pursue her claim under RCW 49.60.030, we see no need to decide whether RCW 49.60.180 would provide an alternative basis for her claim.
*915II. DSHS HAS NOT DEMONSTRATED THAT PROVISIONS OF INITIATIVE 1163, CODIFIED AT RCW 74.39A.056, ARE FATAL TO MS. HOWELL'S CLAIM
¶40 In November 2011, Washington voters approved Initiative 1163, the "Restoring Quality Home Care Initiative." LAWS OF 2012, ch. 1, § 308. The intent of the initiative was to reinstate a requirement that long-term care workers obtain criminal background checks, which the state legislature had proposed to eliminate. LAWS OF 2012, ch. 1, § 1. DSHS argues, and Ms. Howell concedes, that Washington law established by the initiative is just as binding as the WLAD, is more recent, and must be harmonized with the WLAD.10
¶41 DSHS argues that the approval and enactment of the initiative is the true impediment to Ms. Howell's employment prospects. It points to the following provision of the initiative, codified at RCW 74.39A.056(2) :
No provider, or its staff, or long-term care worker, or prospective provider or long-term care worker, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority or a court of law or entered into a state registry with a final substantiated finding of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.
¶42 Ms. Howell makes two arguments in response: first, that DSHS has been given rulemaking discretion as to how the employment prohibition is applied and second, that it is other DSHS action, not the initiative, which completely precludes Ms. Howell from becoming certified and employed as an NAC.
*916A. DSHS's rulemaking discretion
¶43 Subsections of RCW 74.39A.056 delegate authority to DSHS to adopt rules to implement the provision and to establish the state registry against which the background checks will be conducted. RCW 74.39A.056(4) provides that "[t]he department shall adopt rules to implement this section."
*377RCW 74.39A.056(3) authorizes DSHS to establish the state registry by rule, adding that the rule "must include disclosure, disposition of findings, notification, findings of fact, appeal rights, and fair hearing requirements."
¶44 Administrative rules and regulations adopted by an agency pursuant to statutory authority are valid if they are reasonably consistent with the statute being implemented, and the intent and purpose of the legislation. Multicare Med. Ctr. v. Dep't of Soc. & Health Servs. , 114 Wash.2d 572, 588, 790 P.2d 124 (1990). Washington's Administrative Procedure Act provides that an agency may use a statute's statement of intent or purpose in interpreting its other provisions. RCW 34.05.322. Section 1 of Initiative 1163 stated that it was the intent of the people through the initiative "to protect vulnerable elderly and people with disabilities by reinstating the requirement that all long-term care workers obtain criminal background checks and adequate training." LAWS OF 2012, ch. 1, § 1.
¶45 DSHS has so far not demonstrated that its rulemaking authority is too limited for it to develop a registry and fashion background check requirements that would have the features Ms. Howell alleges are possible: "permit[ting] accused persons to expunge their findings after demonstrating their rehabilitation; reduce the period of retention of the record on a background check when there is no evidence of future harm to children; or periodically *917review all records to determine ongoing need to retain any given record in its background check database." CP at 9.11
B. RCW 74.39A.056 does not present a complete bar to Ms. Howell's employment as an NAC
¶46 Alternatively, Ms. Howell argues that even if construed as argued by DSHS, RCW 74.39A.056(2) does not foreclose her from all employment as an NAC. A "nursing assistant" is "an individual, regardless of title, who, under the direction and supervision of a registered nurse or licensed practical nurse, assists in the delivery of nursing and nursing-related activities to patients in a health care facility." RCW 18.88A.020(8). A "nursing assistant-certified" is a nursing assistant certified under chapter 18.88A RCW. To receive a nursing assistant certificate, an applicant must successfully complete an approved training program or satisfy alternative training criteria adopted by the Washington Nursing Care Quality Assurance Commission and successfully complete a competency evaluation. RCW 18.88A.085.
¶47 As construed by DSHS, RCW 74.39A.056 would preclude Ms. Howell from being employed as a "long-term care worker" or serving as a provider or provider staff caring for, and with unsupervised access to, vulnerable adults. As defined by RCW 74.39A.009(20), "long-term care worker" includes some, but not all, NAC employment:
(a) "Long-term care workers" include all persons who provide paid, hands-on personal care services for the elderly or persons with disabilities, including but not limited to individual providers of home care services, direct care workers employed by *918home care agencies or a consumer directed employer, providers of home care services to persons with developmental disabilities under Title 71A RCW, all direct care workers in state-licensed assisted living facilities, enhanced services facilities, and adult family homes, respite care providers, direct care workers employed by community residential service businesses, and any other direct care worker providing home or community-based services to the elderly or persons with functional disabilities or developmental disabilities.
(b) "Long-term care workers" do not include: (i) Persons employed by the following *378facilities or agencies: Nursing homes licensed under chapter 18.51 RCW, hospitals or other acute care settings, residential habilitation centers under chapter 71A.20 RCW, facilities certified under 42 C.F.R., Part 483, hospice agencies subject to chapter 70.127 RCW, adult day care centers, and adult day health care centers; or (ii) persons who are not paid by the state or by a private agency or facility licensed or certified by the state to provide personal care services.
Not all NAC employment would require Ms. Howell to provide care, with unsupervised access, to vulnerable adults.
¶48 DSHS has so far not demonstrated that the provisions approved by Initiative 1163 present a complete bar to Ms. Howell's employment as an NAC.
III. DSHS HAS NOT YET MADE A SHOWING OF BUSINESS NECESSITY NOR HAS IT DEMONSTRATED THAT DISCRETIONARY IMMUNITY IS FATAL TO MS. HOWELL'S CLAIM
¶49 In moving for a dismissal under CR 12(c), DSHS did not undertake to produce evidence of business necessity, a response to Ms. Howell's claim that remains available to it. It did argue, and argues on appeal, that discretionary immunity bars Ms. Howell's claim.
¶50 After the Washington legislature abolished the principle of sovereign immunity by passing RCW 4.96.010, the Washington Supreme Court, in *919Evangelical United Brethren Church of Adna v. State , 67 Wash.2d 246, 407 P.2d 440 (1965), created an exception "under which the government could still govern." Mason v. Bitton, 85 Wash.2d 321, 327, 534 P.2d 1360 (1975). The purpose of the limited, court-created rule of discretionary immunity is to prevent courts from passing judgment on basic policy decisions that have been committed to coordinate branches of government. Bender v. City of Seattle, 99 Wash.2d 582, 588, 664 P.2d 492 (1983). "Since the concept of discretionary governmental immunity is a court-created exception to the general rule of governmental tort liability, its applicability is necessarily limited only to those high level discretionary acts exercised at a truly executive level." Id.
¶51 In Evangelical, the court posed four preliminary questions intended to help distinguish the discretion exercised at a truly executive level to which immunity was granted, from discretion exercised at an operational level, which, if done in a negligent fashion, would subject the government to liability. Mason, 85 Wash.2d at 328, 534 P.2d 1360.12
¶52 More important for present purposes is an additional requirement for discretionary immunity imposed by the Supreme Court in King v. City of Seattle, 84 Wash.2d 239, 246, 525 P.2d 228 (1974). There, the court emphasized that
to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, *920took place. The fact that an employee normally engages in "discretionary activity" is irrelevant if, in a given case, the employee did not render a considered decision.
Id. As observed in Haslund v. City of Seattle, 86 Wash.2d 607, 619, 547 P.2d 1221 (1976) (citing Mason, 85 Wash.2d at 328, 534 P.2d 1360 ), with this further limitation, "discretionary governmental immunity is, in this state, an extremely limited exception."
*379¶53 In moving for dismissal on the basis of discretionary immunity, DSHS asserted that its challenged rules and policies were the result of the exercise of truly high-level executive discretion, not operational level discretion. It appears that at least some of the rules and policies probably were adopted by high-level agency executives. But DSHS did not present the required evidence of the risks and advantages that were consciously balanced (or when, or by whom) before high-level agency executives adopted the rules or policies. Just as an agency rule can be declared invalid if, e.g., it was adopted without compliance with statutory rule-making procedures or is arbitrary and capricious, see RCW 34.05.570(2)(c), agency decisions will not enjoy discretionary immunity if the required conscious balancing of risks and advantages did not take place.
IV. CONCLUSION
¶54 We hold that DSHS need not be Ms. Howell's employer to be subject to a claim under the WLAD. With that clarification, Ms. Howell can turn her attention to identifying the specific policies and practices about which she complains, an identification she argued below would in some instances require discovery. Report of Proceedings at 10.13 DSHS can provide more focused argument as to why it lacks the discretion Ms. Howell contends it enjoys, and any evidence of business necessity or of consideration of *921risks and advantages that would afford it discretionary immunity.
¶55 We reverse the court's order dismissing the complaint and remand for further proceedings.14