Cases

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash. 2002)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1) This suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at … [the] Fred Meyer store in Spokane.

(2) On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim.

(3) In late July, Robel was given a light-duty assignment, “a four-your shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.”

(4) On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as one of them yelled ‘Oh, I hurt my back, L & I, L & I!

(5) They “audibly called [Robel] a ‘bitch’ and ‘cun[-].’ ”

(6) They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.”

(7) In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.”

(8) Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretending to hurt their backs & laugh.”

(9) Robel reported the incidents to her union representative, Ron Banka.

(10) According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with Steve Wissink, the store director, for Friday, August 16.

(11) At [a subsequent all-deli employee meeting called by Wissink on August 19, 1996,] Wissink warned the employees that future harassment could result in termination.

(12) On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.”

(13) On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I.”

(14) On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day.

(15) Before Robel left the deli, she overheard Smith comment to other deli employees,”  ‘Can you believe it, Linda’s gonna sit on her big ass and get paid.’ ”

(16) Robel again contacted [her union rep], who in turn contacted Wissink  on September 20, 1996

(17) On September 24, Wissink telephone Robel to confirm the allegations. Robel “told him about the C word and Bitch[,] the little plays they were doing about [her] back.”

(18) On September 28, 1006, Wissink terminated one employee.

(19) Robel never returned to work at Fred Meyer.

(20) On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination …, retaliation for filing a workers’ compensation claim …, negligent and intentional infliction of emotional distress, and defamation.

(21) The trial court denied Fred Meyer’s motion for summary judgment…[f]inding for Robel on all five causes of action[.]

(22) Fred Meyer appealed. The Court of appeals reversed the trial court’s judgment on all claims.

Robel v. Roundup Corporation, 148 Wn.2d 35, 59 P.3d 611 (Wash. 2002)


ISSUE #1:  Does the Washington Law Against Discrimination, chapter 49.60 RCW, support an employee’s disability based hostile work environment claim?

rule
RULE

RULE

Under the Washington Law Against Discrimination, RCW 49.60, “it is an unfair practice for any employer to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” Id. at 43 (citing RCW 49.60.180(3)) (alteration to the original).

To determine whether the Washington Law Against Discrimination “supports a disability claim based on a hostile work environment, [courts] may look to federal cases construing analogous federal statutes.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980)).

analysis
ANALYSIS

ANALYSIS

In this case, the Court determined that whether the Washington Law Against Discrimination supported a disability based hostile work environment was an issue of first impression in the state. It then reasoned that “just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims.” Id. at 45.

conclusion
CONCLUSION

CONCLUSION

The Court held that “the [Washington Law Against Discrimination] … supports a disability based hostile work environment claim.” Id. at 43.


ISSUE #2: Did the trial court’s unchallenged findings of fact satisfy the elements of Robel’s disability based hostile work environment claim?

rule
RULE

RULE

In order to establish a disability based hostile work environment case, a plaintiff must prove “(1) that he or she was disabled within the meaning of the antidiscrimination statute [WLAD], (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms and conditions of employment, and (5) that it was  imputable to the employer.” Id. at 45.

THE SECOND ELEMENT (Unwelcome). To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.’ ” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (Wash. 1985).

THE THIRD ELEMENT (Because of Disability): To establish that the harassment was “because of the disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

THE FOURTH ELEMENT (Terms & Conditions of Employment): To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708) (alteration to the original). “[A] satisfactory finding on this element should indicate ‘that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration to the original).

THE FIFTH ELEMENT (Imputable): To impute harassment to an employer, “the jury must find either that (1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that (2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonable prompt adequate corrective action.” Id. at 47 (internal citation and quotation marks omitted) (alteration in the original).

analysis
ANALYSIS

ANALYSIS

THE FIRST ELEMENT (Disabled): In this case, neither party contested that Robel’s injury was a disability under RCW 49.60.180(3). Id. at 35. Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

THE SECOND ELEMENT (Unwelcome): The Court found that no findings suggested that Robel solicited or incited the remarks made about her workplace injury. Id. at 45. That Robel viewed the employer’s conduct as undesireable and offensive was at least implicit in her reporting the conduct to Banka (her Union Representative). Id. at 45-46.

THE THIRD ELEMENT (Because of Disability): The trial court found that the verbal and non-verbal harassment of Robel in the work setting after July 14, 1996 was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled. See id at 46. The Court, in the instant case, elected not to substitute their judgment for that of the trial court. Id.

THE FOURTH ELEMENT (Terms & Conditions of Employment): The trial court found that Fred Meyer created a hostile and abusive work environment and that the environment was offensive to Robel. Id. at 46-47 (internal quotation marks omitted). The Court, in the instant case, pointed to another trial court finding: “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end … the verbal and non-verbal harassment of Robel in the work setting.” Id. at 47. The Court found that this language echoed the “critical language from Glasgow and the pattern jury instruction”; and it accepted the findings as “verities” and passed on “any reweighing of the evidence supporting them.” Id.

THE FIFTH ELEMENT (Imputable): The Court identified relevant trial court findings as follows: (1) “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996″; (2) “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and no-verbal harassment in the work setting”; (3) “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability”; (4) “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment”; (5) “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate”; and (6) “the postinjury harassment was imputed to Fred Meyer.” Id. at 48 (internal citations and quotation marks omitted). The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

conclusion
CONCLUSION

CONCLUSION

The Court concluded “that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim.” Id. at 48. It then reversed “the Court of Appeals and reinstated the trial court’s judgment in Robel’s favor.” Id.


ISSUE #3: Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

rule
RULE

RULE

The Washington Industrial Insurance Act “provides that no employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” Id. at 48-49 (citing RCW 51.48.025(1)) (emphasis in original).

analysis
ANALYSIS

ANALYSIS

In this case, the Court framed the issue essentially as follows: Whether the Workers’ Compensation Anti-Retaliation Statute, RCW 51.48.025(1), applies to an employer “who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim[?]” See id. at 50. It then found that, “by analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove that she had filed a claim, that Fred Meyer thereafter discriminated against her in some way, and that the claim and the discrimination were causally connected.” Id. at 50.

conclusion
CONCLUSION

CONCLUSION

The Court held that “because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.” Id.


ISSUE #4: Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

rule
RULE

RULE

IIED ELEMENTS. To succeed on a claim for outrage–also known as intentional infliction of emotional distress–“a plaintiff must prove three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Id. at 51 (internal citations and quotations marks omitted) (emphasis added).

QUESTIONS FOR THE JURY. The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id.

THE FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT).  To establish the first element, the plaintiff must prove “that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (citing Dicomes v. State, 113 Wash.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotations marks omitted).

RELATIONSHIP BETWEEN PARTIES (IIED). In an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)). “The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La.1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger”).

VICARIOUS LIABILITY. “Once an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)). “An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) ‘intentional or criminal’ and (2) ‘outside the scope of employment.'” Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001).

SCOPE OF EMPLOYMENT. “An employee’s conduct will be outside the scope of employment if it ‘is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'” Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958); see also RESTATEMENT, supra. § 228(1).

analysis
ANALYSIS

ANALYSIS

THE FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT). “Robel was called in her workplace names so vulgar that they have acquired nicknames, such as ‘the C word,’ for example.” Id. at 52 (internal citation omitted) (emphasis in original).

VICARIOUS LIABILITY. “Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. at 54

conclusion
CONCLUSION

CONCLUSION

On the threshold question (extreme and outrageous conduct) the Court concluded that reasonable minds could conclude that, in light of the severity and context of the conduct, it was beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community. See id. at 51-52. The Court also concluded that Fred Meyer was vicariously liable, “that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage. Id. at 54-55

The Court then reversed the Court of Appeals and reinstated the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Id. at 55. Because Robel was successful on this claim, the Court found it unnecessary to consider Robel’s companion claim for negligent infliction of emotional distress. Id.


ISSUE #5: Were the allegedly defamatory communications cited in the trial court’s findings capable of defamatory meaning?

rule
RULE

RULE

A defamation plaintiff must prove the following four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Id. at 55 (citing Mark v. Seattle Times, 96 Wash.2d 473 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed. 2d 1339 (1982)) (emphasis added).

FALSITY“Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because expressions of opinion are protected under the First Amendment, they are not actionable.” Id. (citing Camer v. Seattle Post-Intelligencer, 45 Wash.App. 29, 39, 723 P.2d 1195 (1986) (internal quotation marks and citations omitted) (emphasis added). “Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. (internal citations omitted).

TOTALITY OF THE CIRCUMSTANCES. To determine whether words should be viewed as nonactionable opinions, the court considers the totality of the circumstances surrounding those statements. Id. at 56.

DUNLAP 3-FACTOR TESTTo determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. (citing Dunlap v. Wayne, 105 Wash.2d 529, 539, 716 P.2d 842 (1986).

analysis
ANALYSIS

ANALYSIS

The vulgarisms (i.e., “bitc-,” “cun-,” “fuc-ing bitc-,” “fuc-ing cun-“) along with the word “idiot”:  the Court concluded that these vulgarisms along with the word “idiot” were plainly abusive words, but they were not intended to be taken literally as statements of fact. Id. Thus, they did not pass the threshold question of law.

The words “snitch,” “squealer,” and “liar.” The Court considered the totality of the circumstances and applied the Dunlap Three-Factor Test. It held as a matter of law that these words also constituted nonactionable opinions. Id. at 56. Regarding the first Dunlap factor (medium and context): the Court found that the oral statements were made in circumstances and places that invited exaggeration and personal opinion. Id. Regarding the second Dunlap factor (the audience): the Court found that the employee audience (i.e., Fred Meyer co-workers and management personnel) was “prepared for mischaracterization and exaggeration” and would have registered the words, if at all, “as expressions of personal opinion, not as statements of fact.” Id. at 57. And customers hearing the words “would reasonably perceive that the speaker was an antagonistic or resentful co-w0rker.” Id. Regarding the third Dunlap factor (whether the words implied undisclosed defamatory facts): deli workers would have known the facts ostensibly underlying the words and the words disclosed to customers would “implies no undisclosed defamatory facts.” Id.

conclusion
CONCLUSION

CONCLUSION

The Court concluded that all of the utterances were nonactionable opinions and reaffirmed the reversal of the trial court’s judgment on Robel’s defamation claim. Id.


NOTABLES AND IMPLICATIONS

DISABILITY

[~1]  This case adds an additional initial element to the hostile work environment rule for cases based on disability: He or she must be disabled within the meaning of the Washington Law Against Discrimination.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

[~2] The standard for an outrage claim is very high (meaning that the conduct supporting the claim must be appallingly low). See id. at 51.

PERSONAL JOURNALS / DIARIES

[~3]  In Washington state, an employee’s personal journal entries regarding discrimination at work can be used to support a claim of unlawful employment discrimination. See, e.g., id. at 41.

SEXUAL HARASSMENT

[~4]  WLAD prohibits sexual harassment in employment, with such claims being generally categorized as quid pro quo harassment claims or hostile work environment claims. See id. at 43 (citing DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996)) (internal citations and quotation marks omitted).

TITLE VII & WLAD

[~5]  “The [Washington Law Against Discrimination] …, which applies with equal force to sex based and disability based employment discrimination, is analogous to Title VII and the ADA.” Id. at 44.

[~6]  Although federal cases interpreting Title VII are not binding on the Court, they are instructive and supportive. See id. at 44.

VICARIOUS LIABILITY

[~7]  Intentional or criminal conduct is not per se outside the scope of employment. Id. at 53.

[~8]  It is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in a intentionally harmful or negligent manner. See id.

[~9]  An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

[~10]  The proper vicarious liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id.

[~11]  When a servant steps aside from the master’s business in order to effect some purpose of his own, the master is not liable. Id. at 54 (citing Kuehn v. White, 24 Wash.Ap. 274, 277, 600 P.2d 679 (1979)) (internal quotation marks omitted).

[~12]  Where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. See id.

 


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Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

[1]  This case of first impression in this state involves sexual harassment at the work place.

[2] Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].

[3]  From October 1979 until January 1982, … a male co-worker, on several occasions “would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,]”… [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.”

[4] As early as November 1979 the plant manager knew this male employee was “using abusive language around female employees” and had “touched or fondled” this plaintiff and another female employee “in an unwanted sexual way.” No corrective or disciplinary action was taken.

[5] Complaints of the co-worker’s “other intimidating behavior” toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.

[6] Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.

[7] The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.

[8] A complaint was lodged with the plant superintendent.

[9] The male co-worker would also stare at her “in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance”.

[10] She tried to avoid him and informed the plant manager “who did nothing.” She and yet another female employee confronted the plant manager about this “continued sexual harassment.”

[11]  The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted “in an intimidating fashion” toward this plaintiff because of her complaints.

[12]  Not until February 1982 was the male co-worker given a 3-day suspension “based on his prior acts of sexual harassment.”

[13]  One of the plaintiffs suffered “severe emotional anguish and distress demonstrated by physical symptoms” of various kinds. She resigned in December 1981 after working less than 9 months.

[14] The other plaintiff was “emotionally and psychologically injured” and likewise demonstrated physical manifestations of “severe emotional distress.” She resigned in October 1982.

[15] The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.

[16] The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.

– Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)


ISSUE #1:  Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

rule
RULE

RULE

Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Id. at 408. “To establish a work environment sexual harassment case…an employee must prove the existence of the following [four] elements[:]”

(1) The Harassment Was Unwelcome:

In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.

Id. at 406.

(2) The Harassment Was Because Of Sex:

The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.

Id.

(3) The Harassment Affected The Terms Or Conditions Of Employment:

Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.

Whether the harassment at the work place is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.

Id. at 406-07.

(4) The Harassment Is Imputed To The Employer:

Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.

To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.

This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. at 407.

analysis
ANALYSIS

ANALYSIS

The Court only addressed the fourth element by reviewing the trial court’s finding as follows:

In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.

Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”

conclusion
CONCLUSION

CONCLUSION

The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404. The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id. 


ISSUE #2: Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

rule
RULE

RULE

The “existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408.

analysis
ANALYSIS

ANALYSIS

The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.”

conclusion
CONCLUSION

CONCLUSION

The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); See also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)). Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.


NOTABLES AND IMPLICATIONS

POLICY

[~1] “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405

[~2] “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See Id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981).

[~3] “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).

QUID PRO QUO SEXUAL HARASSMENT

[~4] Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.

TITLE VII

[~5] “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, fn. 2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980). See generally, Barrett v. Omaha Nat’l Bank, 726 F.2d 424 (8th Cir.1984); Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Henson v. Dundee, 682 F.2d 897 (11th Cir.1982); Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981)).

 


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If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our DISCLAIMER, TERMS OF USE & PRIVACY notice.

Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1) Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

(2) WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ” State” throughout this opinion.

(3) After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

(4) Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

(5) [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

– Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)


ISSUE #1:  Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

rule
RULE

RULE

Substantial Evidence: The Court reviews findings of fact for substantial evidence. Id. at 256 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings has the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

Meaning of Substantial Evidence: Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353 (quoting In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004))) (internal quotation marks omitted).

Substitute Judgment: As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

De Novo Review: The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).

analysis
ANALYSIS

ANALYSIS

In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices. One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents. Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

conclusion
CONCLUSION

CONCLUSION

The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.


ISSUE #2: Did the employees prevail on their disparate treatment claim?

rule
RULE

RULE

WLAD Generally: “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

Disparate Treatment: Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

Valid Justification: “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3d. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991) (internal citation parenthetical phrases omitted). The employer’s valid justification is more commonly known as a bona fide occupational qualification.

Bona Fide Occupational Qualification (BFOQ): “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings ” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

The BFOQ Test: “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

analysis
ANALYSIS

ANALYSIS

Disparate Treatment: In the case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction. The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions…[t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment because of … race’ in violation of RCW 49.60.180(3).” Id.  

BFOQ Defense: Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

conclusion
CONCLUSION

CONCLUSION

The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.


ISSUE #3: Did the employees prevail on their hostile work environment claim?

rule
RULE

RULE

The General Rule: “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260. “An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

3rd Element Rule: The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d 406-07).

3rd Element Criteria: “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment … : the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n. 4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

analysis
ANALYSIS

ANALYSIS

In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of severe or pervasive harassment.” Id.

conclusion
CONCLUSION

CONCLUSION

The Court held that “based on the trial court’s factual findings, which we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”


ISSUE #4: Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

rule
RULE

RULE

“RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id.

analysis
ANALYSIS

ANALYSIS

Here, the Court determined that the plaintiff Employees were entitled to relief, because the the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

conclusion
CONCLUSION

CONCLUSION

The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief  is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.


NOTABLES AND IMPLICATIONS

TITLE VII

[~1]  “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257.

[~2]  “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

[~3]  “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

[~4]  “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id. 

[~5]  “The WLAD ‘shall be construed liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

[~6]   “RCW 49.60.180 prohibits racial discrimination in employment.” Id.

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our DISCLAIMER, TERMS OF USE & PRIVACY notice.

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1)  In 2006, the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class.

(2)  After the Amendment, [the Plaintiff] Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively “University”), for discrimination based on sexual orientation.

(3)  [Loeffelholz] alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act.

(4)  The final allegedly discriminatory act–and the only act to potentially occur postamendment–occurred during Lukehart’s last group meeting before deploying to Iraq. During this meeting, he told the group that he was ‘going to come back a very angry man’ from Iraq.

(5)  [The Court held] that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred.

(6)  The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment.

(7)  [The Court] affirms the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.


ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is  preamendment discriminatory conduct actionable?

rule
RULE

THE RULES 

The Court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.Loeffelholz v. University of Washington, 175 Wn.2d 264, 271, 285 P.3d 854 (Wash. 2012) (internal citations and quotation marks omitted) (emphasis added). The Court may determine if “the legislature intends otherwise” by looking to legislative history. Id. (internal citations omitted). Moreover, “a statute is not remedial when it creates a new right of action.” Id. (internal citations omitted).

analysis
ANALYSIS

ANALYSIS 

(1) Plain Language: The Court found that the plain language of the WLAD amendment at issue did not explicitly state that it applied retroactively; it therefore concluded that the plain language supported prospective application. Id. at 72 (internal citations omitted).

(2) Legislative History: The Court found that the final bill report to the WLAD amendment supported prospective application. It states that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The Court reasoned that the “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id. 

(3) The Morgan Two-Part Inquiry Inapplicable: The Court found the Morgan Two-Part Inquiry inapplicable to this case. In Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004), the court approved the two-part inquiry introduced in Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)), for purposes of deciding if a hostile work environment claim is timely. Id. at 273 (internal citations omitted). Under the Inquiry, the court is to determine (1) “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so,” (2) “whether any act falls within the statutory time period.” Id. (internal citations omitted). However, here, the Court distinguished Antonius from the instant case, pointing out that “recovery for actions outside the statute of limitations does not raise the same due process concerns as does recovery for conduct that was not unlawful when committed.” Id. 

(4) Preamendment Conduct As Background Evidence: The Court found that “while preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted). The reasoned that “conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Id. at 274 (internal citations omitted). As an example, the Court explained that “earlier conduct may be relevant to prove the intent behind post-effective-date conduct.” Id. (internal citations omitted). Here, the Court examined the “totality of the circumstances” and found that Ms. Leoffelholz could use “the preamendment conduct to explain why the ‘angry man’ comment constituted sexual orientation based harassment.” Id. The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be construed liberally … to prevent discrimination that threatens not only the rights and proper privileges of the State’s inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (internal citations omitted).

conclusion
CONCLUSION

CONCLUSION

The Court held that based on the plain language and legislative history, the Washington Law Against Discrimination amendment applies prospectively only; it is not retroactive. However, “because of the unique nature of a hostile work environment claim, the unrecoverable preamendment conduct is admissible as background evidence to give context to any postamendment discriminatory conduct.” Id. at 278.


ISSUE #2: Is a single comment made postamendment a discriminatory act?

rule
RULE

THE RULES

To establish a prima facie hostile work environment claim, the plaintiff must alleged facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer. Id. at 275 (internal citations and quotation marks omitted) (emphasis added). The third element is met “if the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, to be determined with regard to the totality of the circumstances.” Id. (internal citations and quotation marks omitted).

analysis
ANALYSIS

ANALYSIS

Totality Of The Circumstances: The Court considered the totality of the circumstances, and the included preamendment conduct to conclude that “the ‘angry man’ comment establishes a prima facie hostile work environment claim.” Id. at 275-76. The Court determined both that “the standard for linking discriminatory acts together in the hostile work environment context is not high”; and that “the acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. (internal citations omitted). In this case, the Court found that Mr. Lukehart made the “angry man” comment to a group, but “he conceivably intended it to have special meaning for Ms. Loeffelholz.” Id. at 276. Ms. Loeffelholz “knew that Lukehart disliked lesbians and that he had anger management problems as illustrated by his previous comments that he had a volatile temper and kept a gun.” Id. The Court concluded that “taken in the context of such comments, a reasonable juror could infer from these events that the “angry man” comment was a natural extension of the conduct that made up the preamendment oppressive work environment.” Id. at 276-77.

A Single Comment May Be Enough: The Court found that “the preamendment conduct establishes that the ‘angry man’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 277.

conclusion
CONCLUSION

CONCLUSION

The Court found that preamendment conduct establishes that one comment–the “angry man” comment in this case–“could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 278. Thus, assuming the “‘angry man’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment.” Id. Accordingly, the Court affirmed “only the Court of Appeals reversal of summary judgment, and reversed its reasoning, which allowed recovery for preamendment conduct.” Id.

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy Notice.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1)  Barnes was hired by WNGC in the early part of 1975 as a “helper” on the natural gas line.

(2)  He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

(3)  Barnes contends that he does not now, nor did he ever have, epilepsy.

(4)  He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

(5)  After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

(6) The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of “any sensory, mental, or physical handicap” are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring an action against defendant pursuant to the provisions of RCW 49.60.

(7) After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry. v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held the provision of the Act pertinent here not unconstitutionally vague.

(8) The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

(9)  The Court refused the invitation.

(10)  The Court held that a plaintiff claiming not to be handicapped [may] sue under [WLAD] … on the grounds that he was discriminatory discharged under the erroneous belief he suffered a handicap[; and the Court reversed] … the judgment of the trial court.

– Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. 1 1979)


ISSUE #1:  Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

rule
RULE

RULE

Unfair Practices of Employers:  RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Id. at 578.

Washington Administrative Code:  “The Washington State Human Rights Commission (The Commission) has adopted regulation WAC 162-22-040 as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

 (a) A condition is a ‘sensory, mental, or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

 (b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

 (i) is medically recognizable or diagnosable;

 (ii) exists as a record of history; or

 (iii) is perceived to exist, whether or not it exists in fact.

 (2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.” Id. at 579.

“The Commission … has been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

Judicial Review of Regulations:  “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)). The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86. Wn.2d at 314).

analysis
ANALYSIS

ANALYSIS

Legislative Intent: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582. But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

Essence of Employment Discrimination: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id. It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id. The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

Legislative Purpose:  The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id. The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such a condition.” Id. The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.” Id. The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id. 

Protected Class:  Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

Application of Policy The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

Employer’s Interests: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

conclusion
CONCLUSION

CONCLUSION

The Court held that Banes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.


ISSUE #2: Is [former] WAC 162-22-040(1)(b)(iii) valid?

rule
RULE

RULE

There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted). The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

analysis
ANALYSIS

ANALYSIS

See analysis under Issue #1 above.

 

conclusion
CONCLUSION

CONCLUSION

The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.


NOTABLES AND IMPLICATIONS

PUBLIC POLICY

[~1]  “Public policy, expressed by the Act to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

[~2]  “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment, . . . because of . . . the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010. The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: . . . (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. at 583, n. 2.

 


LEARN MORE

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our DISCLAIMER, TERMS OF USE & PRIVACY notice.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1) Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor, Ben Martinez, for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

(2)  [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

(3)  Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for (1) disparate treatment, (2) hostile work environment, and (3) unlawful retaliation.

(4)  [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

(5) [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

-Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013)


ISSUE #1: Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

rule
RULE

THE RULES 

Disparate Treatment: “Disparate treatment is a form of discrimination that occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Id. at 744. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n.7, 172 P.3d 688 (2007)). “To establish a prima facie disparate treatment claim, the employee-plaintiff must show that the employer treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

Two Options: “A plaintiff can establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.” Id. (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993).

Direct Evidence Test: “[A] plaintiff can establish a prima facie case by providing direct evidence that (1) the defendant employer acted with a discriminatory motive and (2) the discriminatory motivation was a significant or substantial factor in an employment decision.” Id. (citing Kastanis, 122 Wn.2d at 491). “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746. Lastly, “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id.

Discriminatory Remarks: The Court “generally consider[s] an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002)).

analysis
ANALYSIS

ANALYSIS 

(1) Discriminatory Motive: The Court evaluated the case under the first prong of the Direct Evidence Test–that the employer acted with discriminatory motive–and held that “the evidence sufficiently proved that Martinez acted with discriminatory motive toward Alonso.” Id. at 745. In this case, “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay”; “[A]lonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term”; “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent”; “described his speech as that of a ‘ghetto Hispanic'”; and “contrasted themselves to Alonso because they ‘spoke correct English’ unlike him”.

(2) Significant/Substantial Factor in Employment Decision: In the case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Initially, Alonso claimed that he experienced an adverse transfer causing him to loose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. The Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id at 746. The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.”

Next, Alonso further argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id at 747. Accordingly, the Court considered derogatory comments made by Martinez and other employees as described above in section “(1) Discriminatory Motive”; and it also considered an additional comment allegedly made by Martinez regarding Alonso’s veteran status and PTSD — “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748.

conclusion
CONCLUSION

CONCLUSION

The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id at 748. It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf Way veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id. Accordingly, the Court reversed the trial court’s dismissal of his disparate treatment claim.


ISSUE #2: Did Alonso establish a prima facie hostile work environment claim?

rule
RULE

RULE

Hostile Work Environment: “To establish a prima facie hostile work environment claim, the plaintiff must alleged facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)).  “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

Harassment Because of Protected Class (2nd Element): To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

Harassment Affected Terms & Conditions (3rd Element): “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment, [… courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)). “Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) reveiew denied, 163 Wn.2d 1040 (2008)). However, “casual, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10.)

Harassment Imputable to Employer (4th Element): “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n.5, 59 P.3d 611 (2002)).

analysis
ANALYSIS

ANALYSIS

(1) Unwelcome: In this case, the Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment.

(2) Harassment Because of Protected Class:  The Court considered Alonso’s offered evidence regarding military status — Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s; regarding race — Martinez and others subjected Alonso to racially derogatory language (established above); and regarding disability — he was a victim of open mocking for his speech impediment (established above). Accordingly, the Court held that Alonso satisfied this element in establishing a prima facie hostile work environment claim.

(3) Harassment Affected Terms & Conditions:  The Court considered the evidence referenced under element 2 above, and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752. The Court then held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id. 

(4) Harassment Imputable to Employer:  The Court found that Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. Accordingly, the Court determined that Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. The Court then found that Martinez participated in some of the harassment as described above. Ultimately, the Court held that Alonso established that the harassment is imputable to the employer through supervisor Martinez.

conclusion
CONCLUSION

CONCLUSION

The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal of his hostile work environment claim.


ISSUE #3: Did the superior court err in dismissing Alonso’s retaliation claim?

rule
RULE

RULE

“The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210). “To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action.” Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

“An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205). “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

analysis
ANALYSIS

ANALYSIS

The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity. Here, Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id. 

conclusion
CONCLUSION

CONCLUSION

The Court held that Alonso failed to sufficiently establish a prima facie retaliation case because he did not demonstrate that he engaged in statutorily protected activity. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. 


NOTABLES AND IMPLICATIONS

  • ADVERSER TRANSFER

[~1]  Transfer to a position with the same work for the same pay and within the same union contract classification can still be considered an adverse transfer if the former position came with some benefits (e.g., newer vehicle, cellular phone, preference in employer-supplied workstations, computers, desk telephones, etc.) that the new position does not provide. See Id. at 746.

  • HOSTILE WORK ENVIRONMENT (PROTECTED CLASS)

[~2]  Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor harassing conduct. See Id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf Way combat veteran and compared his own veteran status to plaintiff’s).

  • HOSTILE WORK ENVIRONMENT (TERMS AND CONDITIONS)

[~3]  An “employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised an inference that condition resulted from hostile work environment.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008) (emphasis added).

  • HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER)

[~4]  A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See Id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

  • TITLE VII FOR GUIDANCE

[~5]  “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts …] may look to federal law for guidance.” Id. at 755, fn. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy Notice.

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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CASE SUMMARY:

(1) Allison, sued the Housing Authority of the City of Seattle (hereinafter, “Housing Authority”), claiming, among other things, that the Housing Authority retaliated against her for filing an age discrimination complaint when she was released in a reduction in force.

(2)  In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

(3)  The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

(4)  That jury instruction required Ms. Allison to show that her discharge was motivated “to any degree by retaliation.”

(5) On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

(6)  [The WA Supreme Court] declined to adopt either the “but for” standard advanced by the Court of Appeals or the “to any degree” standard used by the trial court.

[7]  [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a “substantial factor” approach, and remanded this case to the trial court.

-Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 81 (Wash. 1991)


ISSUE #1: What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

rule
RULE

THE RULES:  The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010). The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020). In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted). Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88.

analysis
ANALYSIS

ANALYSIS:  The Court evaluated the issue based on several argument categories as follows: (1) arguments based on the language of RCW 49.60; (2) arguments based on federal and Washington state case law; (3) arguments based on public policy considerations; and (4) the Wilmot case.

(1)  Language of RCW 49.60:  The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85. The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.210 (retaliation). However, the Court determined that it has “never expressly held that plaintiff has a ‘but for’ burden of causation in a RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD. Id. at 88.

(2)  Federal & State Case Law:  The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard.  Id. at 91-91. “Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscirmiantion law.” Id. at 91.

(3)  Public Policy Considerations:  The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other. It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95. This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

(4) The Wilmot Case:  The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118, Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’compensation claim. Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

conclusion
CONCLUSION

CONCLUSION:  The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96. It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.


ISSUE #2: Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

rule
RULE

RULE: (The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case.)

Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See Id. at 98

analysis
ANALYSIS

ANALYSIS:  The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

Discrimination Evidence:  The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

Retaliation Evidence:  The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

conclusion
CONCLUSION

CONCLUSION: The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.


NOTABLES AND IMPLICATIONS

  • ATTORNEY’S FEES

[~1]  RCW 49.60.030(2) has been interpreted as granting parties a right to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

  • CAUSATION

[~2] “The ‘but for’ standard of causation adopted by the Court of Appeals in Allison will negatively affect enforcement of the law against discrimination.” Id. at 88.

  • MCDONNELL DOUGLAS APPROACH

[~3]  Under the McDonnell Approach–McDonnell Douglas Corp. V. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

[~4]  Under the McDonnell Approach, “the burden of persuasion remains at all times upon the plaintiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

[~5]  Under the McDonnell Approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).

  • WLAD GENERALLY

[~6]  The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

[~7]  The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

[~8]  The WLAD also requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[~9]  The enforcement of the WLAD “depends in large measure on employees’ willingness to come forth and file charges or testify in discrimination cases.” Id. at 86

[~10] “Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy Notice.

Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002)

NOTE: The following article is my summary of an appellate court opinion based on my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer, Terms of Use and Privacy Notice before proceeding.

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Case Summary:

(1)  [In 1999,] Petitioners, two local chapters of the Fraternal Order of Eagles, Tenino and Whidbey Island Aerie, and several female members of the Tenino Aerie, … [sued the Grand Aerie in the Thurston County Superior Court claiming that the male-only admission policy violated the Washington Law Against Discrimination (WLAD) and Washington’s Equal Rights Amendment.]

(2)  [In 2000,] … the trial court granted Petitioners’ summary judgment motion [as to WLAD,] concluding that the Eagles may not discriminate on the basis of gender and must admit women into membership.

(3)  Respondent Eagles … [timely appealed; and in 2001, the Court of Appeals] reversed the trial court, concluding that RCW 49.60.040(10) [(currently RCW 49.60.040(2))] is not ambiguous and, under a literal interpretation of the statute,  fraternal organizations are “automatically excluded” because the wording of the statue indicates the Legislature exempted them from its application without the necessity of examining whether they are “distinctly private.”

(4)  [In 2002, the Supreme Court granted review of the Court of Appeals decision and reversed. This article addresses solely the Supreme Court majority opinion.]


ISSUE #1: Does the Washington Law Against Discrimination require a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law?

rule
RULE

THE RULES 

Legislative Intent: The Washington Law Against Discrimination (WLAD) is a “broad remedial statute”, and its purpose is “to prevent and eradicate discrimination on the basis of race, creed, color, national origin, sex or disability in public accommodations.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002) (internal citations omitted). The WLAD should be interpreted in a way that is consistent with legislative intent. Id. at 255. At the outset, legislative intent is  determined from the purpose section which broadly prohibits discrimination in settings open to the public. Id. (internal citations omitted). The Legislature mandated a liberal interpretation of WLAD and also intended a liberal reading of what constitutes a public accommodation. Id. (internal citations and quotation marks omitted).

Public Accommodation: WLAD broadly defines the term “public accommodation” to include: [A]ny place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities … or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or … where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls…PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter… . Id. at 237-38 (citing RCW 49.60.040(10) (currently RCW 49.60.040(2))) (internal citations omitted) (emphasis added).

analysis
ANALYSIS

ANALYSIS 

Distinctly Private v. Automatic Exemption: The Court established that the question presented was specifically whether the Washington Law Against Discrimination requires a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law. The trial court interpreted RCW 49.60.040(10) (currently RCW 49.60.040(2)) as exempting “fraternal organizations” from the WLAD, but only if the organizations could prove they were “distinctly private” in nature; whereas the Court of Appeals subsequently read the WLAD to automatically exclude fraternal organizations from application of the prohibitions in RCW 49.60.040(10) (currently RCW 49.60.040(2)). To resolve the question presented, the Supreme Court considered legislative intent declaring that to ascertain it, the court resorts to (a) legislative history, (b) statutory construction, and (c) relevant case law. Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 243.

Legislative History: The Court considered the legislative history and found, inter alia, that the “WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon alleged violation of his or her civil rights.” Id. at 247 (internal citations and quotations marks omitted). Moreover, WLAD exceptions should be narrowly construed. Id. (internal citations omitted). Accordingly, the Court found that “reading the proviso in RCW 49.60.040(10) (currently RCW 49.60.040(2)) to exclude ‘fraternal organizations,’ without determining their public, private, or religious nature, is inconsistent with the purpose of the WLAD.” Id. at 255. Thus, it’s consistent with legislative intent to interpret the WLAD to exclude organizations from its reach that have been determined to be distinctly private. Id.

Statutory Construction: As a general principle, an unambiguous statute is not subject to judicial construction. Id. at 239. (internal citations omitted). The Court found that “a statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted). In this case, the Court applied various canons of statutory construction while considering the arguments of the parties; and it found that RCW 49.60.040(10) (currently RCW 49.60.040(2) is ambiguous and thus subject to judicial construction.

Relevant Case Law: The court in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), declared the following list of factors (hereinafter, “Roberts Factors“) may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case.

conclusion
CONCLUSION

CONCLUSION

RCW 49.60.040(10) (currently RCW 49.60.040(2)) is subject to judicial interpretation because it is ambiguous. The court found that “it is consistent with legislative intent to interpret RCW 49.60.040(10) (currently RCW 49.60.040(2)) to exclude distinctly private organizations from the purview of the WLAD.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 256.  The WLAD requires a “fraternal organization” to be “distinctly private” in order to qualify for exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2)) — the “fraternal organization” is not automatically exempted. Id. “Distinctly private” organizations may be determined by applying the Roberts Factors. Id.


ISSUE #2: Did the Fraternal Order of Eagles qualify for the “distinctly private” exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2))?

rule
RULE

THE RULES 

Summary Judgment: Summary judgment is appropriate if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 256.

Roberts v. Unites States Jaycees Factors: As mentioned above, the following Roberts Factors may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case. The Court determined that “emphasis should be placed on whether the organization is a business or a commercial enterprise and whether its membership policies are so unselective and unrestrictive that the organization can fairly said to offer its services to the public.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 251.

analysis
ANALYSIS

ANALYSIS 

In this case, the Court first concluded that the Petitioners and Respondents agreed that there remained no genuine issue of material fact following the orders on summary judgment granted by the trial court. Id. at 256. The Court then considered the trial court record and evaluated the trial court’s application of the Roberts Factors. Id. at 254.

conclusion
CONCLUSION

CONCLUSION

The Court concluded that the trial court properly analyzed the Roberts Factors in relation to the established facts to determine if there remained any issue of material fact on the questions whether the Eagles is a distinctly private organization. The Court found that “the trial court properly granted summary judgment after concluding there remained no issue of material fact on the question whether the Fraternal Order of Eagles is a distinctly private organization and that Respondents Eagles are not entitled to exemption under the WLAD, RCW 49.60.040(10) (currently RCW 49.60.040(2)).” Ultimately, the Court held that “the trial court was correct in concluding that Respondents Eagle may not discriminate on the basis of gender and must admit women into membership.” Id. at 257.


NOTABLES AND IMPLICATIONS: 

HISTORY

[~1]  In 1889, the Washington State Legislature enacted the State’s first anti-discrimination law, a civil rights act, which “granted to all persons full and equal enjoyment of the public accommodations … applicable alike to all citizens of whatever race, color or nationality.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 243 (internal citations omitted).

[~2]  In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

[~3]  In 1909 the civil rights act was codified, and over time it enlarged the sphere of what presently is considered places of “public accommodation.” Id. at 243-44 (internal citations omitted).

[~4]  The civil rights statute is not the same as what is currently the Washington Law Against Discrimination, RCW 49.60. In 1953, the civil rights statute was amended and codified as RCW 9.91.010, and it provided “a private cause of action for damages and remedies” for individuals experiencing racial discrimination because of race. Id. at 244 (internal citations omitted).

[~5]  WLAD was enacted in 1949 “to prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. (internal citations omitted).

[~6]  WLAD also granted a state agency, known as the State Board Against Discrimination, “jurisdiction and powers to carry out the purposes of the Act.” Id. (internal citations omitted). However, the Legislature failed to mandate private civil actions leaving the State Board with “exclusive jurisdiction over enforcement of the Act.” Id. (internal citations omitted). That State Board is now called the Washington State Human Rights Commission.

[~7]  In 1957, the WLAD was amended “to provide any person the right to pursue any action or remedy for a violation of that person’s civil rights.” Id. (internal citations omitted).

[~8]  In 1971, the State Board was designated as the Washington State Human Rights Commission, and the Legislature “granted it jurisdiction and powers to carry out the provisions of the” WLAD “and the policies and practices of the commission in connection therewith.” Id. at 237 (internal citations and quotation marks omitted). “The Commission is authorized to receive, impartially investigate, and pass upon complaints alleging unfair practices defined by the Act.” Id. (internal citations and quotation marks omitted).

[~9]  By 1973, “the right to pursue a cause of action for violation of the general civil right to be free from discrimination and free from unfair practices” was established; however, “the jurisdiction of the Human Rights Commission continued to be limited to unfair practices.” Id. (internal citations omitted).

[~10]  Over time, the Legislature has expanded the scope of WLAD by enacting amendments to include unfair practices in financial institutions, credit transactions, insurance transactions, and real estate transactions. Id. at 246. (internal citations omitted).

STATUTORY CONSTRUCTION

[~11]  “The Construction of a statute is a question of law that the court reviews de novo.” Id. at 239. (internal citations omitted).

[~12]  “In interpreting a statute, the primary objective of the court is to ascertain and carry out the intent and purpose of the Legislature in creating it.” Id. (internal citations omitted).

[~13]  “To determine legislative intent, the court looks first to the language of the statute.” Id. (internal citations omitted).

[~14]  “If the statute is unambiguous, its meaning is derived from the plain language of the statute alone.” Id. (internal citations omitted).

[~15]  “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by reference to a standard dictionary.” Id. (internal citations omitted).

[~16]  The “court will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences.” Id. (internal citations omitted).

[~17]  “An unambiguous statute is not subject to judicial construction.” Id. (internal citations omitted).

[~18]  “A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted).

[~19]  “The first role of a court is to examine the language of a statute while adhering to the Legislature’s intent and purpose in enacting it.” Id. at 240 (internal citations omitted).

WLAD LEGISLATIVE INTENT

[~20]  The purpose of the WLAD is “to deter and eradicate discrimination in Washington”, and it “is a policy of the highest order.” Id. at 246. (internal citations omitted).

[~21]  The Washington Law Against Discrimination “contains a sweeping policy statement that strongly condemns many forms of discrimination.” Id. at 246-47. (internal citations omitted).

[~22]  “The WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.” Id. at 247. (internal citations and quotation marks omitted).

[~23]  WLAD “exceptions should be narrowly construed.” Id. (citing Phillips v. City of Seattle, 111 Wash.2d 903, 908, 766 P.2d 1099 (1989).

[~24]  The WLAD should be interpreted in a manner consistent with legislative intent. Id. at 255. (internal citations omitted).

[~25]  The Legislature mandated liberal interpretation of the WLAD. Id. (internal citations omitted).

WLAD GENERALLY

[~26]  In 1949, the Washington Legislature enacted the Washington Law Against Discrimination as “a broad remedial statute” designed to “prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. at 237 (internal citations omitted).

[~27]  “The Act recognizes that the right to be free from such discrimination is a civil right enforceable in private civil actions by members of the enumerated protected classes.” Id. (internal citations omitted).

[~28]  “Although the rights enumerated include employment, public accommodation, assemblage and amusement, the protected rights are not limited to those.” Id. at 237 (referencing RCW 49.60.030(1)).

 


L E A R N   M O R E

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