Under the Washington Law Against Discrimination, what is the prima facie case for disparate impact discrimination? Here’s my point of view.
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DISPARATE IMPACT: THE PRIMA FACIE CASE
The Washington State Supreme Court “has held that the WLAD creates a cause of action for disparate impact.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 503, 325 P.3d 193 (Wash. 2014) (citing E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (1986)).
“To establish a prima facie case of disparate impact, the plaintiff must show that[:]
Id. at 503 (citing Oliver v. P. Nw. Bell Tel. Co., 106 Wn.2d 675, 679, & n.1, 724 P.2d 1003 (1986)) (internal citation omitted) (paragraph formatting added).
EXAMPLE: KUMAR v. GATE GOURMET, INC.
For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (i.e., a protected class falling under “creed“).
The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class, and the court found a viable claim of disparate impact discrimination–reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.
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Under Washington Law Against Discrimination (WLAD), RCW 49.60, what are protected classes for purposes of employment-discrimination claims? Here’s my point of view.
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT DISCRIMINATION
Under the WLAD, individuals have a right to be free from discrimination because of membership in a protected class. See RCW 49.60.030(1). This is recognized as and declared to be a civil right. Id. This right includes, but is not limited to the right to obtain and hold employment without discrimination. RCW 49.60.030(1)(a).
PROTECTED CLASSES
Accordingly, WLAD prohibits unfair employment practices against persons on account of any of the following protected classifications:
13. Unlawful Retaliation (it is an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit)
Any person deeming himself or herself injured by any act in violation of … [WLAD] 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.).
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Under Washington State canons of statutory construction, what is the canon of presumed awareness? Here’s my point of view.
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THE CANON OF PRESUMED AWARENESS
Under the canon of presumed awareness: “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (reasoning that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992))).
In Dailey, the majority opinion essentially held that punitive damages are not available for employment discrimination under the Washington Law Against Discrimination, because the legislature has not expressly authorized them. Seeid at 574-75.
RELATED ARTICLE
Read our related article entitled Presumption of Acquiescence concerning a similar Washington State canon of statutory construction.
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(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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ELEMENTS OF NEGLIGENT MISREPRESENTATION
In Washington State, negligent misrepresentation is a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.
“To prevail on … [a negligent misrepresentation claim], a plaintiff must prove, by clear, cogent, and convincing evidence that[:]
(1) the defendant supplied information for the guidance of others in their business transactions that was false,
(2) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions,
(3) the defendant was negligent in obtaining or communicating the false information,
(4) the plaintiff relied on the false information,
(5) the plaintiff’s reliance was reasonable, and
(6) the false information proximately caused the plaintiff damages.
Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 196-97 (Wash. 2018) (citing Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (“Washington has adopted Restatement (Second) of Torts § 552 (Am. Law Inst. 1965)”)) (hyperlink added).
JUSTIFIABLE RELIANCE: AN ISSUE OF FACT
“Whether a party justifiably relied upon a misrepresentation is an issue of fact.” Specialty Asphalt, 191 Wn.2d at 198 (citing ESCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820, 828, 959 P.2d 651 (1998)).
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(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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UNLAWFUL RETALIATION
The Washington Law Against Discrimination, RCW 49.60, “prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734, 753 (Div. 2 2013) (citing RCW 49.60.210).
There are additional protections. The relevant law states as follows:
RCW 49.60.210
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.
(1) It 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 this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
(2) It 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.
(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.
“Violation of this provision supports a retaliation claim.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020)Â (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).
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(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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HOSTILE WORK ENVIRONMENT (WA STATE)
Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).
THE PRIMA FACIE CASE (WA STATE)
In Washington, the term “hostile work environment” is synonymous with harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).
-ELEMENT (1):Â Harassment was unwelcome
“In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (2):Â The harassment was because of membership in a protected class
“The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.
-ELEMENT (3):Â The harassment affected the terms or conditions of employment
“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (4):Â The harassment is imputable to the employer
WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.”
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(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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DISCRIMINATORY DISCHARGE (WA STATE)
“[T]he WLAD prohibits an employer from discharging an employee because of certain protected characteristics, including[, but not limited to age, sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or] a sensory, mental, or physical disability.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing RCW 49.60.180(2)).
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.
(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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COMMON LAW RIGHT TO PRIVACY
“Washington recognizes a common law right to privacy.” White v. Township of Winthrop, 128 Wn.App. 588, 593-94, 116 P.3d 1034, (Div. 3 2005) (citing Reid v. Pierce County, 136 Wash.2d 195, 207, 961 P.2d 333 (1998)). A violation of this right is considered a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.
PUBLIC DISCLOSURE OF PRIVATE FACTS
“Public disclosure of private facts” is a privacy tort in Washington State. Washington courts “base actions for … [commission of this tort] as articulated in RESTATEMENT (SECOND) OF TORTS § 652D (1977):
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
White, 128 Wn.App at 593-94 (citing Reid, 136 Wash.2d at 205, 961 P.2d 333)) (internal citations and quotation marks omitted).
EXAMPLE
“As concerns the general nature of matters protected by the right of privacy:
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends.
Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget.
When these intimate details of his life are spread [b]efore the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.
White, 128 Wn.App. at 594 (citing Cowles Publ’g Co. v. State Patrol, 109 Wash.2d 712, 721, 748 P.2d 597 (1988)) (internal citations omitted) (paragraph formatting added).
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Under Washington State canons of statutory construction, what is the Valid Regulation Presumption? 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.)
There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it …. [The court’s] review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.
Barnes v. Washington Natural Gas Company, 22 Wn.App. 576, 580, 591 P.2d 461 (Div. 1 1997) (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).
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(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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THE RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE
In Washington State, “[c]ourts construe relative and qualifying words and phrases, both grammatically and legally, to refer to the last antecedent if a contrary intention does not appear in the statute.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 240, 59 P.3d 655 (Wash. 2002) (citing In re Application of Andy, 49 Wn.2d 449, 302 P.2d 963 (1956); see, e.g. Caughey v. Employment Sec. Dep’t, 81 Wn.2d 597, 602, 503 P.2d 460 (1972) (“[W]here no contrary intention appears in a statute, relative and qualifying words and phrases refer to the last antecedent.”)).
“The reason for this rule … is to make clear what is being modified.” Id.
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