Category: Civil Rights

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Sexual Harassment Policy Requirements for Specific WA Employers

Sexual Harassment Policy Requirements for Specific WA Employers

Under the Washington Law Against Discrimination, RCW 49.60, what are the sexual harassment and assault policy requirements for hotel, motel, retailer, and security guard entities, and property services contractors? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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WA State’s Sexual Harassment and Assault Policy Requirements for Specific WA State Employers — Hotel, Motel, Retail, or Security Guard Entity, and Property Services Contractors

Washington State has long been at the forefront of promoting workplace equality and safety. One of the key provisions in this regard is RCW 49.60.515*, a statute within the Washington Law Against Discrimination (WLAD), which imposes specific responsibilities on the following employers–who employ an employee–to combat sexual harassment and assault:

» Hotel, Motel, Retail, and Security Guard Entities; and

» Property Services Contractors.

This provision aims to create safer work environments in sectors that may face heightened risks of such behaviors. Below is a breakdown of the law’s requirements and its impact on employers and employees.

1. Adopting a Sexual Harassment Policy (RCW 49.60.515(1)(a))

Under the law, every employer in the specified sectors is required to adopt a comprehensive sexual harassment policy. This policy must explicitly address how sexual harassment will be prevented, identified, and responded to in the workplace. The inclusion of this policy is an essential step in setting clear standards of behavior and ensuring that employees are aware of their rights and responsibilities.

For employers, having a well-defined sexual harassment policy provides guidance on what constitutes inappropriate behavior and how to handle complaints. This policy serves as a preventative measure and a tool for addressing complaints effectively when they arise.

2. Mandatory Training for Employees and Management (RCW 49.60.515(1)(b))

One of the core requirements of this provision is the mandatory training for managers, supervisors, and employees. The training aims to:

•  Prevent sexual assault and sexual harassment in the workplace

•  Prevent sexual discrimination

•  Educate employees about protections for those who report violations of state or federal laws, rules, or regulations

The training sessions ensure that employees at all levels are aware of the importance of maintaining a respectful and safe work environment. By providing this education, employers can foster a culture of accountability and respect. Additionally, the inclusion of protections for whistleblowers is essential for encouraging employees to report violations without fear of retaliation.

3. Resources for Employees (RCW 49.60.515(1)(c))

In addition to training, employers are required to provide their workforce with a list of resources for those who may experience or witness sexual harassment or assault. At a minimum, this resource list must include contact information for:

•  The Equal Employment Opportunity Commission (EEOC)

•  The Washington State Human Rights Commission (WSHRC)

•  Local advocacy groups focused on preventing sexual harassment and sexual assault

These resources are critical for providing employees with the support and guidance they need to address harassment issues, report incidents, or seek external help if necessary.

4. Panic Buttons for Employees (RCW 49.60.515(1)(d))

In an effort to further enhance the safety of workers in potentially vulnerable situations, the statute mandates that employers in the specified industries provide a panic button to each employee. This panic button is a critical tool for immediate assistance in emergencies, allowing workers to quickly signal for help if they feel threatened or are in danger of harassment or assault.

For employers with fewer than 50 employees, the Washington State Department of Labor and Industries* (L&I) is tasked with providing additional guidance on how this requirement will be applied. This provision does not extend to contracted security guard companies licensed under chapter 18.170* RCW, which have separate regulations in place.

5. Reporting and Documentation Requirements for Property Services Contractors (RCW 49.60.515(2))

Property services contractors, including janitorial companies, must adhere to specific reporting requirements. These include submitting the following information to the L&I:

•  The date when the sexual harassment policy was adopted

•  The number of managers, supervisors, and employees who have completed the mandated training

•  The physical address of each work location where janitorial services are performed, along with details about the workforce and hours worked

These reporting measures ensure that contractors are in compliance with the law and provide valuable data for oversight. This information will be made available in aggregate form to the public, allowing for transparency and accountability.

6. Why This Law Matters

RCW 49.60.515* is designed to address specific vulnerabilities in industries where workers may be at higher risk of harassment or assault, such as hotels, motels, and retail spaces. By instituting preventive measures such as training, panic buttons, and clear policies, the law works to ensure that employees have the tools and protections needed to maintain a safe workplace.

Moreover, the law helps reinforce a broader commitment to workplace equality and safety in Washington State, which aligns with national efforts to curb sexual harassment and assault in the workplace.

7. the statutory provision — rcw 49.60.515

The relevant WLAD statutory provision states as follows:

RCW 49.60.515
Sexual harassment and assault policy—Adoption of by hotel, motel, retail, or security guard entity, or property services contractors—Requirements.

(1) Every hotel, motel, retail, or security guard entity, or property services contractor, who employs an employee, must:

(a) Adopt a sexual harassment policy;

(b) Provide mandatory training to the employer’s managers, supervisors, and employees to:

(i) Prevent sexual assault and sexual harassment in the workplace;

(ii) Prevent sexual discrimination in the workplace; and

(iii) Educate the employer’s workforce regarding protection for employees who report violations of a state or federal law, rule, or regulation;

(c) Provide a list of resources for the employer’s employees to utilize. At a minimum, the resources must include contact information of the equal employment opportunity commission, the Washington state human rights commission, and local advocacy groups focused on preventing sexual harassment and sexual assault; and

(d) Provide a panic button to each employee. The department must publish advice and guidance for employers with fifty or fewer employees relating to this subsection (1)(d). This subsection (1)(d) does not apply to contracted security guard companies licensed under chapter 18.170* RCW.

(2)(a) A property services contractor shall submit the following to the department on a form or in a manner determined by the department:

(i) The date of adoption of the sexual harassment policy required in subsection (1)(a) of this section;

(ii) The number of managers, supervisors, and employees trained as required by subsection (1)(b) of this section; and

(iii) The physical address of the work location or locations at which janitorial services are provided by workers of the property services contractor, and for each location: (A) The total number of workers or contractors of the property services contractor who perform janitorial services; and (B) the total hours worked.

(b) The department must make aggregate data submitted as required in this subsection (2) available upon request.

(c) The department may adopt rules to implement this subsection (2).

(3) For the purposes of this section:

(a) “Department” means the department of labor and industries.

(b) “Employee” means an individual who spends a majority of her or his working hours alone, or whose primary work responsibility involves working without another coworker present, and who is employed by an employer as a janitor, security guard, hotel or motel housekeeper, or room service attendant.

(c) “Employer” means any person, association, partnership, property services contractor, or public or private corporation, whether for-profit or not, who employs one or more persons.

(d) “Panic button” means an emergency contact device carried by an employee by which the employee may summon immediate on-scene assistance from another worker, a security guard, or a representative of the employer.

(e) “Property services contractor” means any person or entity that employs workers: (i) To perform labor for another person to provide commercial janitorial services; or (ii) on behalf of an employer to provide commercial janitorial services. “Property services contractor” does not mean the employment security department or individuals who perform labor under an agreement for exchanging their own labor or services with each other, provided the work is performed on land owned or leased by the individuals.

(f) “Security guard” means an individual who is principally employed as, or typically referred to as, a security officer or guard, regardless of whether the individual is employed by a private security company or a single employer or whether the individual is required to be licensed under chapter 18.170* RCW.

(4)(a) Hotels and motels with sixty or more rooms must meet the requirements of this section by January 1, 2020.

(b) All other employers identified in subsection (1) of this section must meet the requirements of this section by January 1, 2021.

RCW 49.60.515* (emphasis added).

Conclusion

The implementation of RCW 49.60.515 represents a significant step forward in ensuring that employers in high-risk industries take proactive measures to prevent sexual harassment and assault. By requiring sexual harassment policies, training, resources, panic buttons, and regular reporting, this law aims to create safer, more equitable work environments across Washington State. Employers in the specified sectors must familiarize themselves with these requirements to ensure compliance and to create a culture of safety and respect within their organizations. For employees, this law serves as an important safeguard, providing them with the resources and support necessary to navigate and report harassment if it arises.

READ MORE

We invite you to read more of our related blog articles:

» Definition of Sex (WLAD)

» Sexual Harassment in the Workplace

» The Silenced No More Act (WA State)*

(*NOTE: The link will take the reader to our Williams Law Group Blog, an external website.)

NEED HELP?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our law office litigates claims under the Washington Law Against Discrimination, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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Liability for Killing or Injuring Dog Guide or Service Animal (WA State)

Liability for Killing or Injuring Dog Guide or Service Animal (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, is there a provision concerning the killing or injuring of a dog guide or service animal? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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WLAD — LIABILITY FOR KILLING OR INJURING DOG GUIDE OR SERVICE ANIMAL

In Washington State, the rights of individuals with disabilities are protected under a variety of laws, including those governing the treatment of dog guides and service animals. One key WLAD provision is RCW 49.60.370*, which outlines the penalties and remedies for the killing or injury of such animals.

Under this law, if a person negligently or maliciously kills or injures a dog guide or service animal, they are liable for a penalty of $1,000, which must be paid to the user of the animal. This penalty is in addition to any other civil or criminal penalties that may apply. Not only does this law provide financial compensation for the user of the animal, but it also enables the recovery of reasonable attorney’s fees and costs if legal action is required.

Importantly, RCW 49.60.370* clarifies that the Washington State Human Rights Commission has no duty to investigate incidents of negligent or malicious acts against a dog guide or service animal. This means that individuals seeking justice under this statute must take legal action themselves to pursue civil remedies.

THE BLACK-LETTER LAW — RCW 49.60.370

The relevant WLAD section states as follows:

RCW 49.60.370
Liability for killing or injuring dog guide or service animal—Penalty in addition to other remedies or penalties—Recovery of attorneys’ fees and costs—No duty to investigate.

(1) A person who negligently or maliciously kills or injures a dog guide or service animal is liable for a penalty of one thousand dollars, to be paid to the user of the animal. The penalty shall be in addition to and not in lieu of any other remedies or penalties, civil or criminal, provided by law.

(2) A user or owner of a dog guide or service animal, whose animal is negligently or maliciously injured or killed, is entitled to recover reasonable attorneys’ fees and costs incurred in pursuing any civil remedy.

(3) The commission has no duty to investigate any negligent or malicious acts referred to under this section.

RCW 49.60.370* (hyperlinks added).

CONCLUSION

For employers, this law reinforces the need for a respectful and inclusive environment for employees who rely on service animals. It’s crucial that workplace policies support the safety and well-being of both employees and their service animals or guide dogs. In doing so, employers not only comply with the law but also foster a more inclusive and supportive workplace culture. By understanding and respecting the legal rights of employees with disabilities and their service animals and guide dogs, businesses can ensure they provide an environment that is safe, fair, and legally compliant.

READ OUR RELATED ARTICLES

» Definition of Dog Guide (WLAD)

» Definition of Service Animal (WLAD)

» License Waiver for Dog Guide and Service Animals (WLAD)

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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The Hate Crime Offense (WA State)

The Hate Crime Offense (WA State)

Under Washington State laws, what is the hate crime offense? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our external blog or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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The Hate Crime Offense (WA State)

The Hate Crime Offense (WA State)

In Washington State, “[a] person is guilty of a hate crime offense if the person maliciously and intentionally commits one of the following acts because of their perception of another person’s race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability:

(a) Assaults another person;

(b) Causes physical damage to or destruction of the property of another; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property.

The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same gender expression or identity, or the same mental, physical, or sensory disability as the victim.

Words alone do not constitute a hate crime offense unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute a hate crime offense if it is apparent to the victim that the person does not have the ability to carry out the threat.

RCW 9A.36.080(1)* (emphasis and paragraph formatting added). For purposes of this article, the above law may also be referred to as “subsection (1).”

NOTE: “It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, had a particular gender expression or identity, or had a mental, physical, or sensory disability.” RCW 9A.36.080(3)*.

A Class C Felony

“Commission of a hate crime offense is a class C felony.” RCW 9A.36.080(7)*. And the associated penalties “do not preclude the victims from seeking any other remedies otherwise available under law.” See RCW 9A.36.080(8)*.

Definitions

For the purposes of the hate crime offense, the following definitions apply:

(a) “Gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

(b) “Sexual orientation” means heterosexuality, homosexuality, or bisexuality.

(c) “Threat” means to communicate, directly or indirectly, the intent to:

(i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or

(ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.

RCW 9A.36.080(6)*.

Prosecution — Permissible Inferences

“In any prosecution for a hate crime offense, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability if the person commits one of the following acts:

(a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage;

(b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a Nazi emblem, symbol, or hakenkreuz;

(c) Defaces religious real property with words, symbols, or items that are derogatory to persons of the faith associated with the property;

(d) Places a vandalized or defaced religious item or scripture on the property of a victim who is or whom the actor perceives to be of the faith with which that item or scripture is associated;

(e) Damages, destroys, or defaces religious garb or other faith-based attire belonging to the victim or attempts to or successfully removes religious garb or other faith-based attire from the victim’s person without the victim’s authorization; or

(f) Places a noose on the property of a victim who is or whom the actor perceives to be of a racial or ethnic minority group.

RCW 9A.36.080(2)*. “This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) through (f) of this subsection.” Id.

Scope

Nothing under the relevant law–RCW 9A.36.080* (Hate crime offense—Definition and criminal penalty)–“confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.” RCW 9A.36.080(9)*.

Conclusion

In conclusion, Washington State’s approach to hate crimes underscores a commitment to protecting individuals from acts of violence and intimidation rooted in bias against their identity. By defining hate crimes and outlining specific behaviors that constitute such offenses, the law aims to foster a safer environment for all residents. The recognition of various forms of discrimination, from race and religion to gender identity and disability, reflects a broader societal effort to combat prejudice and promote inclusivity. Furthermore, the legal provisions not only establish criminal penalties but also ensure that victims retain the right to seek additional remedies, reinforcing the state’s dedication to justice and equality. As communities continue to navigate issues of hate and discrimination, these laws serve as vital tools in the fight against intolerance.

need help?

If you need help with your employment issue, then consider a consultation with an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

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What is WA State’s law against employment discrimination?

What is WA State's law against employment discrimination?
FAQ: What is WA State’s law against employment discrimination?

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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FAQ: What is WA State’s law against employment discrimination?

answer:

The Washington Law Against Discrimination* (WLAD), enacted in 1949, is a potent statute that covers a broad array of categories, including, but not limited to, employment discrimination. The relevant statute states as follows:

Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

UNFAIR PRACTICES OF EMPLOYERS

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

[DISCHARGE OR BAR FROM EMPLOYMENT]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added).

Unlawful retaliation

The WLAD also outlaws certain types of retaliation: “[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210*. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40* RCW.” RCW 49.60.210*.

WLAD REMEDIES

“Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter* or the United States Civil Rights Act of 1964* as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601* et seq.).” RCW 49.60.030(2)*.

READ MORE ABOUT THIS TOPIC

Read our post entitled: Remedies for Employment Discrimination in WA State*. The external link will take you to our Williams Law Group Blog*.

need help?

If you need help with your employment issue, then consider a consultation with an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

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Is Washington State an at-will employment state?

Is Washington State an at-will employment state?
FAQ: Is Washington State an at-will state?

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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Is Washington State an at-will employment state?

answer:

Washington has been an “at-will” employment state since at least 1928.  See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)).

According to the at-will doctrine, “an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability.” See id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). “Conversely, in the absence of a contract stating otherwise, an employee has the absolute right to abandon … [their] employment at-will.” See id.

However, there are three recognized exceptions to the general at-will employment doctrine: (1) Statutory; (2) Judicial and; (3) Contractual.

READ OUR RELATED ARTICLES

We invite you to read more of our articles related to this topic:

» Constructive Discharge in WA State*

» Effective Date For Constructive Discharge (WA State)

» Retaliatory Discharge (WA State)

» The Prima Facie Case: Discriminatory Discharge

» WA State Torts: Wrongful Termination in Violation of Public Policy*

» What is the Statute of Limitations for Wrongful Termination in WA?

» What Qualifies as Wrongful Termination in Washington?

» WLAD: The Discriminatory Discharge Provision*

NEED HELP?

If you need legal assistance, consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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The Implied Cause of Action Rule

Implied Cause of Action Rule

Under Washington State laws, what is the Implied Cause of Action Rule? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for entertainment purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE IMPLIED CAUSE OF ACTION RULE: WA STATE

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990).

a judicial canon of construction

Accordingly, the Implied Cause of Action Rule is a judicial canon directing that “when a statute … [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland’s Statutes and Statutory Construction § 55.03 (4th ed. 1973).” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state’s labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee’s labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) (“[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy”)) (alteration in original) (emphasis added) (internal quotation marks omitted).

This judicial canon has its roots in federal law as well as the Restatement of Torts.

NOTE: A judicial canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added). “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Federal Law

“The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy.” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).

THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that “The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing Restatement (Second) of Torts § 874A (1979)) (emphasis added).

THE ELEMENTS

Washington courts have borrowed “from the test used by federal courts in determining whether to imply a cause of action.” Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

(1) whether the plaintiff is within the class for whose “especial” benefit the statute was enacted;

(2) whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

(3) whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

the assumptions

Lastly, the court may make two important assumptions under the Implied Right of Action Rule:

(1) “[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and

[(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.”

See id. at 919-20 (paragraph formatting added).

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Employment Law 101: Protected Classes

Employment Law 101: Protected Classes
PROTECTED CLASSES

Under Washington State laws, what are “protected classes” within the context of employment discrimination? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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INTRODUCTION: PROTECTED CLASSES (WA STATE)

Washington State has comprehensive employment-discrimination laws to shield workers from unjust treatment rooted in specific attributes. An integral facet of these legal provisions is the acknowledgment of “protected classes.” This article will enumerate the protected classes within the employment-rights framework of the Washington Law Against Discrimination.

I. The Washington Law Against Discrimination: EMPLOYMENT

The Washington Law Against Discrimination (“WLAD“) is a potent statute enacted in 1949, and it covers a broad array of categories including, but not limited to employment, as follows:

Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

…

RCW 49.60.030(1)(a) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

II. Unfair Practices of Employers: generally

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[Refuse To Hire]

(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

[Discharge or Bar From Employment]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

[Discriminate in Compensation or in Other Terms/Conditions of Employment]

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

[Statements, Advertisements, Publications, Applications for Employment, Inquiries in Connection With Prospective Employment]

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added).

III. unfair practices of employers: filing or participating in a disrimination complaint (UNLAWFUL RETALIATION)

The WLAD also outlaws certain types of retaliation: “[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.” RCW 49.60.210.

NOTE: The foregoing unfair practices are based upon specific protected classes.

IV. Defining Protected Classes

Protected classes encompass groups of individuals shielded from discrimination under governmental statutes. Washington State explicitly delineates these classes under the WLAD, recognizing various categories within, inter alia, the realm of employment, including the following:

→ Age (40+)
→ Citizenship/Immigration Status
→ Creed;
→ Filing or Participating in an Employment Discrimination Complaint
→ HIV or Hepatitis C Status;
→ Honorably Discharged Veteran or Military Status;
→ Marital Status;
→ National Origin;
→ Presence of any sensory, mental, or physical Actual Disability or Perceived Disability;
→ Race / Color;
→ Sex (including pregnancy);
→ Sexual Orientation, including Gender Identity;
→ State-Employee or Health-Care Whistleblower Status;
→ Use of a Trained Dog Guide or Service Animal.

v. WLAD remedies

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

Conclusion

In conclusion, the exploration of protected classes within Washington State’s employment discrimination laws highlights the state’s commitment to fostering a workplace environment rooted in equality and fairness. The Washington Law Against Discrimination (WLAD), a robust statute enacted in 1949, serves as a powerful safeguard against unjust treatment based on specific attributes.

In essence, the WLAD stands as a cornerstone in Washington State’s pursuit of equal opportunities, reinforcing the principles of fairness, justice, and non-discrimination in employment. As we navigate the complexities of the modern workplace, understanding and upholding the rights of protected classes are crucial steps towards creating a truly inclusive and equitable work environment in the Evergreen State.

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Job Applicants and Criminal Records (WA State)

Job Applicants and Criminal Records (WA State)

Under Washington State law, may an employer use criminal-records information in job hiring? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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DEFINITIONS

For purposes of this article only, the following definitions apply unless the context clearly requires otherwise:

…

(1) “Criminal record” includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.

(2) “Employer” includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.

(3) “Otherwise qualified” means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

RCW 49.94.005.

THE WASHINGTON FAIR CHANCE ACT — RCW 49.94

In 2018, the Washington State Legislature passed the Washington Fair Chance Act (Act), RCW Chapter 49.94. The Act is designed “to protect job applicants with a criminal record so they may fairly compete for job opportunities for which they are otherwise qualified.” See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022). It contains several sections, and the primary section follows:

RCW 49.94.010

Inquiries about criminal records—Timing—Advertisements—Exceptions.

(1) An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.

(2) An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state “no felons,” “no criminal background,” or otherwise convey similar messages are prohibited.

(3) An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

(4) This section does not apply to:

(a) Any employer hiring a person who will or may have unsupervised access to children under the age of eighteen, a vulnerable adult as defined in chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060;

(b) Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;

(c) Employment by a general or limited authority Washington law enforcement agency as defined in RCW 10.93.020 or by a criminal justice agency as defined in RCW 10.97.030(5)(b);

(d) An employer seeking a nonemployee volunteer; or

(e) Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the securities and exchange act of 1934, 15 U.S.C. 78c(a)(26).

RCW 49.94.010 (emphasis added) (hyperlinks in original).

LIMITATIONS

The Act also contains several significant limitations concerning collective bargaining agreements, conflict of laws, accommodations/job modifications, baselines, and private right of actions, as follows:

RCW 49.94.020

Limitations on application of chapter.

(1) This chapter may not be construed to interfere with, impede, or in any way diminish any provision in a collective bargaining agreement or the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages, standards, and conditions of employment.

(2) This chapter may not be interpreted or applied to diminish or conflict with any requirements of state or federal law, including Title VII of the civil rights act of 1964; the federal fair credit reporting act, 15 U.S.C. Sec. 1681; the Washington state fair credit reporting act, chapter 19.182 RCW; and state laws regarding unsupervised access to children or vulnerable persons, RCW 43.43.830 through 43.43.845.

(3) This chapter may not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.

(4) This chapter may not be construed to discourage or prohibit an employer from adopting employment policies that are more protective of employees and job applicants than the requirements of this chapter.

(5) This chapter may not be construed to interfere with local government laws that provide additional protections to applicants or employees with criminal records, nor does it prohibit local governments from enacting greater protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than this chapter conflict with this chapter and may not be enforced.

(6) This chapter may not be construed to create a private right of action to seek damages or remedies of any kind. The exclusive remedy available under this chapter is enforcement described in RCW 49.94.030. This chapter does not create any additional liability for employers beyond that enumerated in this chapter.

RCW 49.94.020.

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ENFORCEMENT & PENALTIES

The Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. The AGs enforcement powers (including penalties) follow:

RCW 49.94.030

Attorney general’s enforcement powers—Penalties.

(1) The state attorney general’s office shall enforce this chapter. Its powers to enforce this chapter include the authority to:

(a) Investigate violations of this chapter on its own initiative;

(b) Investigate violations of this chapter in response to complaints and seek remedial relief for the complainant;

(c) Educate the public about how to comply with this chapter;
(d) Issue written civil investigative demands for pertinent documents, answers to written interrogatories, or oral testimony as required to enforce this chapter;

(e) Adopt rules implementing this chapter including rules specifying applicable penalties; and

(f) Pursue administrative sanctions or a lawsuit in the courts for penalties, costs, and attorneys’ fees.

(2) In exercising its powers, the attorney general’s office shall utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows:

A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.

RCW 49.94.030.

CONFLICTS WITH FEDERAL REQUIREMENTS

Lastly, the Act contains a provision addressing potential conflicts with federal requirements when federal funds are involved. The relevant provision follows:

RCW 49.94.900

Conflict with federal requirements—2018 c 38.

If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

RCW 49.94.900.

THE COMPLAINT PROCESS

As mentioned above, the Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. Accordingly, the AG Civil Rights Division accepts complaints that a covered employer has used criminal-record information to exclude an applicant from a job opportunity before determining whether the applicant is otherwise qualified for the job. Complainants may contact the AG Civil Rights Division at either [email protected] or by leaving a message on their toll-free line at (833) 660-4877. Complainants may also submit a complaint using the AGs online form and a staff member will follow up. See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022) (hyperlink in original).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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Property Interests in Continued Employment: WA State

Property Interests in Continued Employment: WA State

In Washington State, do Washington State civil service employees–dischargeable only for cause–have property interests in continued employment? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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GOLDBERG TWO-STEP PROCESS

In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), “[t]he Supreme Court … enunciated a two-step process for analyzing cases involving deprivation of a governmental benefit” in violation of due process, as follows:

1. it must first be ascertained whether the interest at issue is a constitutionally protected property or liberty interest; and

2. if the interest is a protected one, the court must determine if the deprived beneficiary has been afforded due process.

See Belnap v. Chang, 707 F.2d 1100, 1102 (9th Cir. 1983) (internal citations and quotation marks omitted).

In relation to element 1 above, “property interests are not created by the Constitution, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source, such as state law. . . .” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494, 53 USLW 4306 (1985) (emphasis added) (internal citations omitted).

RELEVANT WA STATE LAW

Accordingly, the Washington State Supreme Court has held that “protected property interests can arise from express or implied contracts for continued employment, objective representations of tenure, . . . or even collective bargaining agreements providing for continued employment.” Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987) (internal citations omitted). As a result, “constitutionally protected property interests may arise in public employment where civil service laws provide an express or implied contract for continued employment.” Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, I believe that civil service employees dischargeable only for cause have protected property interests in continued employment. See id. at 796-97 (internal citations omitted).

Example: Danielson v. City of Seattle

For example, in Danielson, a Seattle police officer committed theft and was subsequently discharged. The Seattle Municipal Code and the Seattle City Charter established that no civil service employees may be discharged from employment except for cause. As a result, the court held that the police office had a property interest in continued employment. Id.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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Section 1983, Unofficial Custom, and Local Governmental Liability

Section 1983, Unofficial Custom, and Local Governmental Liability

Under Section 1983, may an individual bring a civil rights lawsuit against a city based upon allegations that the city engaged in an illegal custom — even if the custom was not officially established? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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UNOFFICIAL GOVERNMENTAL CUSTOM

Local governmental entities may be sued under Section 1983 for “constitutional deprivations visited pursuant to governmental ‘custom,’ even though such a custom has not received formal approval through the entity’s official decisionmaking channels.” City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107, 14 Fed. R. Serv. 3d 412 (1988) (internal citations omitted).

“Showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity is one way to establish municipal liability.” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (internal citations and quotation marks omitted).

EXAMPLE: CHEW v. GATES

In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) a police officer turned a police dog loose on Chew and it assaulted Chew directly causing injury; the city argued that the unofficial policy of using dogs to apprehend suspects was attributable only to the non-policymaking officers responsible for training the canine units and not the police chief or commission — policymaking officials.

The court found that “[a] city could not escape liability for the consequences of established and ongoing departmental policy regarding the use of force simply by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers.” Id. at 1445.

Furthermore, the court found that “if the city in fact permitted departmental policy regarding the use of canine force to be designed and implemented at lower levels of the department, a jury could, and should, nevertheless find that the policy constituted an established municipal ‘custom or usage’ regarding the use of police dogs for which the city is responsible.” Id. (referencing City of St. Louis, 485 U.S. at 127)

Thus, the court held that the city acted under color of law in injuring Chew.

CONCLUSION

Under § 1983, I believe an individual may bring a civil rights lawsuit against a city based upon allegations that the city engaged in an unofficial illegal custom.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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