Category: Civil Rights

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

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 rule: (1) Statutory; (2) Judicial and; (3) Contractual.

(1)  STATUTORY EXCEPTIONS

“First, both Congress and the Washington State Legislature have modified the employment at-will doctrine by limiting employers’ rights to discharge employees.” Id. at 153 (referencing National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1994); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2*(a)(1) (1994); chapter 49.60* RCW (Washington’s law against discrimination); see also chapter 49.12* RCW (prohibiting discharge of employees for testifying in investigations regarding labor conditions, worker earnings, or sex discrimination); RCW 49.44.090* (prohibiting discharge of employee for being age 40 and over)).

These statutory laws provide an exception to the at-will doctrine that protects the employee’s rights and limits the employer’s ability to discharge an employee at-will.

(2)  JUDICIAL EXCEPTIONS

Second, Washington courts “have recognized a narrow public-policy exception to an employer’s right to discharge an employee”; this exception is commonly known as “wrongful termination in violation of public policy*.” Id. (referencing Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to “for-cause” employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy)).

“Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy.” Id. “By recognizing this public policy exception, … [Washington State Supreme Court has] expressed its unwillingness to shield an employer’s action which otherwise frustrates a clear manifestation of public policy.” Id. at 154 (internal quotation marks omitted).

(3)  CONTRACTUAL EXCEPTIONS

“Third, employers and employees can contractually modify the at-will employment relationship, eschewing the common law rule in favor of negotiated rights and liabilities.” Id. at 154 (internal citation omitted). “An employer can bargain away its right to discharge an employee without cause by contracting not to do so.” Id. (internal citation omitted).

“The law governing this exception is not a species of the employment at-will doctrine; it is the law of contracts. Therefore, the law of contracts governs an injured party’s right to recover damages under this exception.” Id. at 155 (internal citation omitted). “Unlike a wrongful discharge, a breach of contract is neither immoral nor wrongful; it is simply a broken promise.” Id. (internal citation omitted).

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?

» WLAD: The Discriminatory Discharge Provision*

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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
Washington State

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

» Employment Law 101: Legal Theory

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–gw

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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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Employment Law 101: Protected Classes
Protected Classes

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*.

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

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.

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

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.

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

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.

READ OUR RELATED ARTICLES

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

» Employment Law 101: Legal Theory

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–gw

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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.

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 fairchancejobs@atg.wa.gov 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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