Under Washington State laws, what is the direct-evidence method (hereinafter, “Direct-Evidence Method”) of establishing a prima facie case of employment discrimination? Here’s my point of view.
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EMPLOYMENT DISCRIMINATION — THE PRIMA FACIE CASE (2 OPTIONS)
In Washington State, “[a] plaintiff can establish a prima facie case [of employment discrimination] by either[:]
[1.] offering direct evidence of an employer’s discriminatory intent, or …
(1) the defendant employer acted with a discriminatory motive and
(2) the discriminatory motivation was a significant or substantial factor in an employment decision.
Id.* at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting, hyperlink, and emphasis added).
THE 2ND ELEMENT: DISCRIMINATORY MOTIVATION WAS SIGNIFICANT/SUBSTANTIAL FACTOR
To satisfy the second element of the Direct-Evidence Method, the plaintiff–employee “must … [establish that] the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id.* at 746 (referencing Kastanis, 122 Wn.2d at 491). This can be done by identifying associated adverse employment actions.
ADVERSE EMPLOYMENT ACTION
“An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id.* (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id.* (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (hyperlink added).
EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE
Washington Courts “generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id.* (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold”)).
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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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HOW CAN AN EMPLOYMENT-LAW ATTORNEY HELP ME?
answer:
In today’s workforce, instances of workplace discrimination continue to cast shadows over the professional lives of numerous employees. Discrimination, spanning various factors such as age, citizenship or immigration status, creed/religion, disability, gender, national origin, opposition to a discriminatory practice, race, and sexual orientation, presents a formidable challenge to workplace equality. For individuals grappling with discrimination in their professional environments, seeking legal counsel emerges as a pivotal recourse. Here’s why consulting with an attorney holds paramount importance for employees encountering discrimination in the workplace:
1. Understanding Legal Rights
When faced with workplace discrimination, comprehending one’s legal rights becomes imperative. Employment laws exhibit nuances and intricacies, often varying from state to state. Consulting with an employment law attorney facilitates a comprehensive understanding of applicable legal frameworks, such as the Washington Law Against Discrimination*, Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA).
2. Guidance Through the Process
The journey of initiating a discrimination claim can prove arduous, particularly for individuals unversed in legal proceedings. An attorney proficient in employment law extends invaluable guidance and support across every phase of the process. This encompasses assistance in evidence collection, completion of necessary paperwork, and adept representation during negotiations or court proceedings. Through their expertise, attorneys ensure the protection of clients’ rights and enhance the prospects of securing a favorable outcome.
3. Preservation of Evidence
Evidentiary support serves as the backbone of discrimination claims, pivotal in substantiating allegations. However, the task of gathering and preserving evidence presents challenges, particularly for employees still employed by the discriminating entity. Attorneys adept in employment law offer strategic counsel on evidence collection, encompassing documentation such as emails, performance evaluations, and witness statements. Moreover, they safeguard against potential retaliatory actions from the employer, crucial in bolstering the strength of the case.
4. Advocacy and Negotiation
Many discrimination cases witness resolution through negotiation or mediation, circumventing the need for protracted litigation. Here, the role of an attorney as an advocate assumes significance, advocating for clients’ interests and facilitating constructive dialogue with the opposing party. By elucidating available options and potential outcomes, attorneys empower clients to make informed decisions conducive to their objectives.
5. Pursuit of Compensation
Employees subjected to workplace discrimination may be entitled to compensation for various damages incurred, ranging from lost wages to emotional distress. Attorneys proficient in employment law conduct a thorough evaluation of clients’ claims, considering factors such as the severity of discrimination and its impact on professional trajectories. Subsequently, they navigate the legal terrain to secure rightful compensation through formal channels.
6. Holding Employers Accountable
Beyond seeking redress for individual grievances, pursuing legal action against discriminatory practices holds broader implications. By holding employers accountable for their actions, employees contribute to the collective endeavor of fostering equitable and inclusive work environments. Such actions serve as deterrents against future instances of discrimination, fostering a culture of accountability and respect within organizations.
CONCLUSION
In essence, the decision to seek legal counsel holds profound significance for employees grappling with workplace discrimination. Attorneys practicing employment law serve as steadfast allies, offering guidance, advocacy, and strategic representation. By harnessing legal avenues, employees not only assert their rights but also propel the ongoing fight for workplace equality and justice.
(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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WA State: What is considered retaliatory action against state-employee whistleblowers?
The relevant law concerning retaliation against state-employee whistleblowers is found under RCW 42.40.050*, as follows:
RCW 42.40.050.
Retaliatory action against whistleblower—Remedies.
(1)(a) Any person who is a whistleblower, as defined in RCW 42.40.020*, and who has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under chapter 49.60* RCW [(i.e., The Washington Law Against Discrimination)].
(b) For the purpose of this section, “reprisal or retaliatory action” means, but is not limited to, any of the following:
(i) Denial of adequate staff to perform duties;
(ii) Frequent staff changes;
(iii) Frequent and undesirable office changes;
(iv) Refusal to assign meaningful work;
(v) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;
(vi) Demotion;
(vii) Reduction in pay;
(viii) Denial of promotion;
(ix) Suspension;
(x) Dismissal;
(xi) Denial of employment;
(xii) A supervisor or superior behaving in or encouraging coworkers to behave in a hostile manner toward the whistleblower;
(xiii) A change in the physical location of the employee’s workplace or a change in the basic nature of the employee’s job, if either are in opposition to the employee’s expressed wish;
(xiv) Issuance of or attempt to enforce any nondisclosure policy or agreement in a manner inconsistent with prior practice; or
(xv) Any other action that is inconsistent compared to actions taken before the employee engaged in conduct protected by this chapter, or compared to other employees who have not engaged in conduct protected by this chapter.
(2) The agency presumed to have taken retaliatory action under subsection (1) of this section may rebut that presumption by proving by a preponderance of the evidence that there have been a series of documented personnel problems or a single, egregious event, or that the agency action or actions were justified by reasons unrelated to the employee’s status as a whistleblower and that improper motive was not a substantial factor.
(3) Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. However, the agency also shall implement any order under chapter 49.60* RCW (other than an order of suspension if the agency has terminated the retaliator).
Under Washington State laws, state-employee whistleblowers who experience retaliatory actions have various remedies available to them. As defined under RCW 42.40.050, retaliatory actions encompass a wide range of behaviors, including but not limitedto denial of adequate staff, unwarranted demotion, and hostile behavior from supervisors or coworkers. However, agencies have the opportunity to rebut these claims by demonstrating documented personnel issues or justifying actions unrelated to whistleblowing.
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.
Under Washington State laws and regulations, how does the Washington State Human Rights Commission (WSHRC) progress from complaint to conclusion when processing employment discrimination claims? 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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WSHRC: FROM COMPLAINT TO CONCLUSION
In Washington State, the protection of human rights is a fundamental aspect of ensuring equality and fair treatment for all individuals. The Washington State Human Rights Commission (WSHRC) serves as a vital resource for individuals who believe they have experienced discrimination in various contexts, including employment, housing, and public accommodations, real estate and credit transactions, and insurance. Understanding the process of filing and handling complaints with the WSHRC is crucial for both complainants and respondents involved in these cases. This article will focus on employment discrimination.
I. Filing a Complaint with the WSHRC
1. Initiating the Process:
Complaints can be filed with the WSHRC through an intake call or an in-person interview. See Washington State Human Rights Commission Website, https://www.hum.wa.gov/employment (last visited 2/16/24). The Intake Unit evaluates the jurisdiction of the complaint and may proceed with an intake questionnaire if it falls within the WSHRC’s purview. See id.
NOTE: WSHRC Jurisdictional Criteria
(a) “Employer has at least 8 employees (does not include religious organizations.” Id. (hyperlink added).
(b) “Signed complaints need to be filed within 6 months of last date of alleged discrimination.” Id.
2. Submission of Intake Questionnaire:
Alternatively, individuals can print out and submit the online intake questionnaire. See id. It is essential to ensure that the intake questionnaire reaches the WSHRC within six months of the alleged discriminatory action. See id.
3. Response to Written Charge:
Upon review, individuals may receive a written charge to sign and return to the WSHRC. See id.
4. Assignment to Investigator:
Once the complaint is filed, it is assigned to an investigator for further examination. See id.
II. Responsibilities of Employers Upon Receiving Notice
1. Timely Response:
Employers must send a written response to the charge within 15 days of receiving notice. See id.
2. Position Statement:
They should articulate their position on the alleged unfair actions. See id.
3. Documentation:
Providing relevant documentation to support their response is imperative. See id.
4. Witness Information:
Employers should furnish witness names and contact information as part of the investigative process. See id.
III. Conducting the Investigation
1. Neutral Fact-Finding:
The WSHRC serves as a neutral fact-finder during investigations, tasked with gathering evidence to determine if there is reasonable cause to believe that a violation of the law has occurred. This may involve interviewing witnesses and reviewing pertinent documents. See id.
The respondent can offer non-discriminatory reasons for the actions in question. See id.
3. Additional Evidence:
The burden of proof shifts back to the complainant to provide further information connecting the harm to the protected class. See id.
4. Standard of Proof:
For a finding of reasonable cause, the preponderance of evidence must indicate that discrimination occurred. See id.
V. Conclusion of the Investigation
1. Recommendation to Commissioners:
Following the completion of the investigation, WSHRC staff presents a recommendation to the Commissioners. See id.
2. NO FINDING OF DISCRIMINATION
“If the WSHRC finds no discrimination (no reasonable cause), both parties are contacted with that finding.” Id.
3. Finding of Discrimination:
If the WSHRC determines that illegal discrimination has occurred (reasonable cause), efforts are made to reach a voluntary agreement between the parties. If unsuccessful, the complaint may proceed to a formal hearing before an Administrative Law Judge (ALJ), who can impose significant penalties. See id.
CONCLUSION
Navigating the process of filing and handling human rights complaints in Washington State requires adherence to specific procedures and responsibilities outlined by the WSHRC. By understanding these guidelines, both complainants and respondents can engage effectively in the resolution process, ultimately contributing to the promotion of equality and justice within the state.
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.
Q: Are Compensatory Damages Available Under the Washington Law Against Discrimination (WLAD)?
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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FAQs
Are Compensatory Damages Available Under the WLAD?
answer:
Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.
The Washington Law Against Discrimination (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD offers a wide array of remedies for violations, including but not limited to compensation for actual damages.
WLAD Remedies
“[T]he [Washington] law against discrimination … expressly provides [remedies, as follows]:
Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with 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….”
Martini v. The Boeing Company, 137 Wn.2d 357, 366-67 (Wash. 1999) (citing RCW 49.60.030(2)) (emphasis added). NOTE: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.
Actual Damages
“‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive**.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).
“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)) (emphasis added). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).
“Compensatory damages are “[d]amages sufficient in amount to indemnify the injured person for the loss suffered — Often shortened to compensatories.” Black’s Law Dictionary 416 (Deluxe Eighth Edition 2004) (emphasis added). “Indemnify” means “[to] reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Id. at 783-84.
Conclusion
Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.
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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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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*.
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.
(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.
(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.
[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.
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:
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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Q: What is the Statute of Limitations for Wrongful Termination in WA?
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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(CAVEAT: This article will only address claims under the Washington Law Against Discrimination, RCW 49.60. However, there are other laws (both state and federal) that might support a claim of wrongful termination.)
What is the Statute of Limitations for Wrongful Termination in WA?
(Warning: It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for administrative relief (see below) and prospective lawsuits (see above). Therefore, the reader is strongly encouraged to contact an employment attorney to determine both the statute of limitations and when it begins to run for individual WLAD claims — please see our DISCLAIMER.)
Generally, the jurisdictional time limitation for filing wrongful-termination complaints through administrative agencies such as the Washington State Human Rights Commission* (WSHRC) and the U.S. Equal Employment Opportunity Commission* (EEOC) is significantly shorter; however, this topic is beyond the scope of this article — speak to an attorney for more information. See “Warning,” above.
_____
* NOTE: The link will take the reader to an external, governmental website.
Other Relevant Laws:
Other employment laws (both state and federal) might also support a claim of “wrongful termination” in Washington State including, but not limited to the following:
A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.
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Under Washington State laws, how do courts proceed in the absence of agency implementing rules when addressing associated statute-based issues? 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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ABSENCE OF AGENCY IMPLEMENTING RULES (WA STATE)
A Washington State agency “cannot promulgate a rule that exceeds its statutory mandate … neither can it diminish statutory protections by failing to act.” Kumar v. Gate Gourmet, Inc.*, 180 Wn.2d 481, 495, 325 P.3d 193 (Wash. 2014) (footnote omitted) (emphasis added).
Thus, when authorized Washington agencies fail to promulgate any implementing rules for statutes, courts must still recognize implicit requirements in those subject statutes. See id. at 496 (referencing Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004) (“[I]n interpreting a statute, the court’s ‘primary objective is to ascertain and give effect to the [legislature’s] intent and purpose'”)) (internal citation omitted).
(*NOTE: The link will take the reader to our Court Slips Blog – an external website.)
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; 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 filed suit
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. “The trial court dismissed the lawsuit in its entirety, finding that the WLAD [(i.e., Washington Law Against Discrimination)] contains no requirement that employers make reasonable accommodations for their employees’ religious practices.” Id. at 486. The plaintiffs appealed to the WA State Supreme Court.
defendant’s argument
Therein, Defendant-employer, Gate Gourmet, “[made] much of the fact that the HRC [(i.e., WA State Human Rights Commission)] has promulgated rules requiring employers to reasonably accommodate employees with disabilities, arguing that the HRC would have issued an identical rule mandating religious accommodations if it believed the WLAD required them.” Id. at 495.
Court’s ANALYSIS
The Court concluded, inter alia, that “the HRC’s rules did not create the reasonable accommodation requirement for disability–they merely implemented a requirement already inherent in the WLAD itself.” Id. (referencing Holland v. Boeing Co., 90 Wn.2d 384, 388-89, 583 P.2d 621 (1978) (finding “a reasonable-accommodation-for-disability requirement inherent in the ‘legislative policy’ embodied in the WLAD, even though that statute did not employ the term ‘accommodation'” )) (footnote omitted).
However, the Court declared that “[e]ven if the HRC had failed to promulgate any rules requiring reasonable accommodations for employee disabilities, this court would still have been required to recognize that implicit requirement in the WLAD’s provisions.” Id. at 495-96 (referencing Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004) (“[I]n interpreting a statute, the court’s ‘primary objective is to ascertain and give effect to the [legislature’s] intent and purpose'” (citing State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002)))) (emphasis added).
the court must implement rcw 49.60.180 so as to give effect to legislature’s intent
Thus, the Court found that “with or without recourse to implementing rules, this court must interpret RCW 49.60.180** so as to give effect to the legislature’s intent. In this case, that means choosing between two competing interpretations of the statute: the interpretation that says it implies a reasonable-accommodation-for-religion requirement and the interpretation that says it lacks such a requirement.” Id. at 496. Ultimately, the Court found, inter alia, that “the employees … stated a claim for failure to reasonably accommodate their religious practices[ ]” – reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion. Kumar*, 180 Wn.2d at 503.
(*NOTE: The link will take the reader to our Court Slips Blog – an external website.)
(**NOTE: The link will take the reader to an external Washington State website.)
CONCLUSION
“[W]ith or without recourse to implementing rules, … [Washington] court[s] must interpret … [statutes] so as to give effect to the legislature’s intent.” Id. at 496.
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Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, is there a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer? 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.)
It is also 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.
The relevant WLAD antiretaliation provision is as follows:
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.
RCW 49.60.210(1) (emphasis added). The term “employer” is vague.
WLAD DEFINITION OF EMPLOYER
The WLAD definition of the term “employer” is found under RCW 49.60.040(11) and states as follows:
(11) “Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.
Plaintiff Zhu ultimately “prevailed on his WLAD antiretaliation claim and was awarded damages.” Id. at 507. The defendant (ESD 171) then filed a motion asking, inter alia, “that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.” Id. (hyperlink added). Accordingly, “the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme Court]:”
Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?
Zhu, 404 P.3d at 507 (internal quotation marks omitted) (hyperlink added).
DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER
The Washington State Supreme Court answered the certified question in Zhu affirmatively and addressed the plain language and scope of WLAD’s antiretaliation provision, WLAD’s definition of employer, and the policy of WLAD.
The Court ultimately held that “[i]n accordance with the plain language of the Washington Law Against Discrimination, Chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1)”; therefore, Zhu stated a valid cause of action based on his claim of unlawful retaliation. SeeZhu, 404 P.3d at 506 (hyperlinks added).
During its analysis, the Court also expounded on WLAD’s definition of the term “employer” as follows:
[The WLAD definition of employer (RCW 49.60.040(11))] clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.
Zhu, 404 P.3d at 509 (emphasis and hyperlink added).
CONCLUSION
Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, there is a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer.
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Under the Washington Law Against Discrimination, what remedies are available when pursing claims 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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The Washington Law Against Discrimination (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
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:
(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.
[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). NOTE: The foregoing unfair practices are based upon specific protected classes.
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
The WLAD is a powerful anti-discrimination law, and the scope of available remedies is equal in magnitude. The relevant section, RCW 49.60.030(2), states as follows:
Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with 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.).
Accordingly, Washington courts allow a variety of remedies to enable Plaintiffs to be made whole. Such relief may include, but is not limited to any one or more of the following:
1. Enjoin further violations (e.g., Injunctive Relief, including, but not limited to, Reinstatement)
2. Recover the actual damages (e.g., Back Pay, Front Pay, Emotional Distress, Costs, Attorney Fees, etc.)
3. Any other appropriate remedy authorized by WLAD, the US Civil Rights Act of 1964, or the Federal Fair Housing Amendments Act of 1988 (e.g., Mental Anguish, Inconvenience, Loss of Enjoyment of Life, Medical Expenses, Tax Set-Off, Expert Witness Fees, etc.)
However, punitive damages are not available under the WLAD. See Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 151 P.3d 976, (2007) (citingDailey v. North Coast Life Insurance Company, 129 Wash.2d 572, 575, 919 P.2d 589 (1996)). Read more about punitive damages under the WLAD by viewing our article: Punitive Damages Are Unavailable Under WLAD (NOTE: the link will take the reader to our Williams Law Group Blog, an external website).
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Under Washington State workers’ compensation laws, may an employer discriminate against an employee for filing a workers’ compensation claim? 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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THE WASHINGTON INDUSTRIAL INSURANCE ACT (“ACT”) AND WORKERS’ COMPENSATION CLAIMS: DISCRIMINATION PROHIBITED
“Washington’s Industrial Insurance Act provides that ‘[n]o employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.'” Robel v. Roundup Corporation, 148 Wn.2d 35, 48-49 (Wash 2002) (citing RCW 51.48.025(1)) (alteration in original) (emphasis added).
The relevant law, RCW 51.48.025(1), states as follows:
Retaliation by employer prohibited—Investigation—Remedies.
(1) No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title. However, nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker’s failure to observe health or safety standards adopted by the employer, or the frequency or nature of the worker’s job-related accidents.
Id. (emphasis added).
THE COMPLAINT PROCESS
Under the Act, “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation.” RCW 51.48.025(2) (emphasis added). In this case, the term “‘Director’ means the director of labor and industries.” RCW 51.08.060.
Accordingly, “[u]pon receipt of such complaint, the director shall cause an investigation to be made as the director deems appropriate. Within ninety days of the receipt of a complaint filed under this section, the director shall notify the complainant of his or her determination.” Id.
“If upon such investigation, it is determined that this section has been violated, the director shall bring an action in the superior court of the county in which the violation is alleged to have occurred.” Id.
RIGHT OF PRIVATE ACTION — ADDITIONAL LEGAL THEORIES
However, “[i]f the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.” RCW 51.48.025(3).
IMPORTANT: Pursuant to other laws (e.g., The Washington Law Against Discrimination, Title VII of the Civil Rights Act of 1964, WA State torts, etc.), additional legal theories may form the basis for relief depending on the circumstances of each case. Speak to a knowledgeable employment attorney to learn more.
REMEDIES
“In any action brought under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and to order all appropriate relief including rehiring or reinstatement of the employee with back pay.” RCW 51.48.025(4) (referring to RCW 51.48.025(1)).
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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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DUTY TO PROVIDE REASONABLE ACCOMMODATIONS (EMPLOYERS)
When an employer’s accommodation is ineffective, the employee’s corresponding duty to communicate mandates: “If the employee does not communicate to the employer that an accommodation was not effective, he or she cannot maintain a failure to accommodate claim.” Id. at 587 (internal citation omitted) (emphasis and hyperlinks added). The basis for this duty is that “an employer must be able to ascertain whether its efforts at accommodation have been effective, and therefore an employee has a duty to communicate to the employer whether the accommodation was effective.” Id. at 586-87 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 783, 249 P.3d 1044 (2011)) (hyperlinks added).
EXAMPLE: MACKEY v. HOME DEPOT USA, INC.
In Mackey v. Home Depot USA, Inc., “Mackey began working at Home Depot[] … in 2006.” Id. at 564. “During her employment, Mackey suffered from depression, posttraumatic stress disorder (PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions.” Id.
home depot’s DUTY TO ACCOMMODATE (EMPLOYER)
“Home Depot accommodated Mackey’s degenerative disc disease by allowing [her] … to have other employees do any required lifting.” Id. at 586.
mackey’s FAILURE TO ACCOMMODATE CLAIM
“Home Depot [eventually] terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders.” Id. at 563. “Mackey asserted claims for[, inter alia,] failure to reasonably accommodate her physical disability.” Id. “Mackey argue[d] that [Home Depot’s disability] … accommodation was unreasonable because it required her to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Id.
mackey’s DUTY TO COMMUNICATE (EMPLOYEE)
The employer defended by asserting, “Mackey failed to notify Home Depot that the [disability] accommodation it provided to her was insufficient or unreasonable.” Id. at 586. The Court also noted: “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate.” Id. at 587.
THE COURT’S HOLDING
The Washington State Court of Appeals held, “[T]he trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.” Id. at 564.
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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.)
A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.
Actions limited to three years. Within three years:
* * *
(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;
Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).
“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).
WARNING
It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.
Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.
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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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT
WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES
The Washington State Legislature established the WSHRC* in 1949 as “a state agency responsible for administering and enforcing the Washington Law Against Discrimination.” WSHRC Official Website, last accessed 4/19/23. The agency has certain functions, powers, and duties, as follows:
RCW 49.60.120
Certain powers and duties of commission.
The commission shall have the functions, powers, and duties:
(1) To appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
(2) To obtain upon request and utilize the services of all governmental departments and agencies.
(3) To adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.
(4) To receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in this chapter.
(5) To issue such publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, marital status, age, 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.
(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies.
(7) To cooperate and act jointly or by division of labor with the United States or other states, with other Washington state agencies, commissions, and other government entities, and with political subdivisions of the state of Washington and their respective human rights agencies to carry out the purposes of this chapter. However, the powers which may be exercised by the commission under this subsection permit investigations and complaint dispositions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter. The commission may perform such services for these agencies and be reimbursed therefor.
(8) To foster good relations between minority and majority population groups of the state through seminars, conferences, educational programs, and other intergroup relations activities.
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Under Washington State law, what is the “after-acquired evidence doctrine” (hereinafter, “after-acquired evidence doctrine” or “Doctrine”) when applied to employment-discrimination law cases? 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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THE AFTER-ACQUIRED EVIDENCE DOCTRINE
In my plaintiff’s-side, employment-discrimination law practice, clients must occasionally address the after-acquired evidence doctrine. “The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee‘s termination had the employer known of the misconduct.” Lodis v. Corbis Holdings, Inc., 192 Wash.App. 30, 60, 366 P.3d 1246 (Wash. app. 2015), review denied, 185 Wash.2d 1038, 377 P.3d 744(Table) (Wash. 2016) (citing Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)) (internal quotation marks omitted).
Under the Doctrine, “[a]n employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee‘s misconduct, but only if it can prove by a preponderance of the evidence that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. (citing McKennon, 513 U.S. at 362-63) (emphasis added); accord Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999) (“adopting after-acquired evidence defense as articulated in McKennon“)).
CONCLUSION
If an employer discovers misconduct by a plaintiff-employee, then the after-acquired evidence doctrine can reduce that plaintiff’s lost-wage damages. Specifically, “An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee’s misconduct at the time.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.) (citing Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015)).
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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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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT
Disparate treatment is a legal theory that occurs “when an employer treats some people less favorably than others” because of membership in a protected class. SeeAlonso v. Qwest Communications Company*, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). “To esablish a prima facie* disparate treatment case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).
There are various formulations for the prima facie case of disparate treatment. In Washington State, “[t]he elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (remainder of footnote omitted) (hyperlinks added).
*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.
REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)
Plaintiff-employees typically use similarly-situated employees (also known as “comparators”) to show that their employer treats some employees less favorably than others based on one or more protected classes. Accordingly, to raise a reasonable inference of discrimination, a “[s]imilarly situated employee[ ] must have[:]
[1] the same supervisor,
[2] be subject to the same standards, and
[3] have engaged in the same conduct.
Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)) (paragraph formatting added).
(NOTE: additional elements are required to establish a prima facie case of disparate treatment discrimination, however this article only addresses the “reasonable inference of discrimination” element.)
EXAMPLE: MARIN v. KING COUNTY
For example, in Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Plaintiff-employee Marin worked for King County as an operator at a wastewater treatment plant. Therein, Marin alleged King County unlawfully discriminated against him based on a variety of incidents. In one incident, Marin “did not follow the correct procedure to ‘lock out’ and ‘tag out’ a sewage pump.” Id. at 803. Consequently, Marin’s supervisor, Read, issued Marin a Teach/Lead/Coach memo, or TLC. “A TLC is not discipline, though management may base future discipline on a TLC.” Id. “Read saw it as a basic error for someone with Marin’s experience. Marin perceived Read to be yelling at him and became anxious.” Id. “Marin eventually gave notice he would retire in May 2011.” Id. at 804.
trial court
Thereafter, “Marin sued the County in July 2011[,] alleg[ing] six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.” Id. (footnote omitted). Inter alia, “[t]he trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id. at 801.
court of appeals — division one
Marin appealed the dismissal of his lawsuit. See id. at 801. On appeal, Division One, held that Marin failed to raise a reasonable inference of discrimination.
Different Supervisor
“Marin … contended the County treated him differently than a nonprotected employee, … Burton, who also made a lockout error. ” Id at 810. However, the Court found that “[e]ven if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor.” Id. (footnote omitted).
same treatment
The Court then found that “the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.” Id. It reasoned: “A reasonable employee would not interpret Marin’s TLC as setting ‘impossible or terrifying unique performance standards’ or threatening termination.”
HOLDING
Accordingly, the Court held that “the trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 810-11.
*NOTE: The link will take the reader to our Court Slips Blog – an external website.
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Under federal laws and regulations, what is the United States Equal Employment Opportunity Commission’s (EEOCs) Notice of Right to Sue? NOTE: This article addresses public and private employment and does not address federal government employees or applicants.
(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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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
The EEOC is a federal agency “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. EEOC Website,https://www.eeoc.gov/overview (last visited 11/29/22).
eeoc functions
“The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.” Id. Accordingly, the EEOC has authority to perform several functions:
(1) To investigate charges of discrimination against employers who are covered by the law.
(2) To prevent discrimination before it occurs through outreach, education, and technical assistance programs.
(3) To provide leadership and guidance to federal agencies on all aspects of the federal government’s equal employment opportunity program.
Id. As part of its investigative function, the EEOC is responsible for issuing the Notice of Right to Sue.
THE 90-DAY NOTICE OF RIGHT TO SUE
Charge Filing
The claimant must first file a charge with the EEOC if the claimant plans “to file a lawsuit under federal law alleging discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information, or retaliation, … (except for lawsuits under the Equal Pay Act, see below).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). I will explain certain exceptions later in this article.
Notice of Right to Sue
The EEOC Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See id. The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id.
90-Day Limitation
When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. Id. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).
Federal Government Employees and Applicants
This article does not address federal government employees or applicants. “The procedures for filing a complaint of discrimination against a federal government agency differ from those for filing a charge against a private or public employer.” Id. To learn more, visit the EEOC Website page: Overview Of Federal Sector EEO Complaint Process.
EXCEPTIONS WHEN FILING A LAWSUIT
Age Discrimination Lawsuits (ADEA)
“If you plan to file an age discrimination lawsuit, you must have filed a charge but you don’t need a Notice of Right to Sue to file a lawsuit in court. You can file a lawsuit in court any time after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).
Equal Pay Lawsuits (EPA)
“If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right to Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the pay discrimination took place (3 years if the discrimination was willful).” Id.
Filing a Lawsuit Before Investigation is Completed
“If you want to file a lawsuit before … [the EEOC has] finished … [their] investigation, you can request a Notice of Right to Sue.” Id.
HOW TO REQUEST A NOTICE OF RIGHT TO SUE
There are a few ways to request a Notice of Right to Sue depending on your circumstances. “If you have registered in EEOC’s Public Portal, you can submit your request by logging in to your charge account and uploading your request. If you don’t have an online charge account, send your request for a Notice of Right to Sue to the EEOC office responsible for investigating your charge and include your EEOC charge number and the names of the parties.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).
In any event, the EEOC has time limitations in fulfilling requests for Notices of Right to Sue.
Before 180 Days Have Passed
Before 180 days have passed from the date the claimant’s charge was filed, the EEOC will give the claimant the notice only if the EEOC will be unable to complete their investigation within 180 days. See id. According to the EEOC, “If you want the EEOC to continue investigating your charge, don’t request a Notice of Right to Sue.” Id.
After 180 Days Have Passed
After 180 days have passed from the date the claimant’s charge was filed, the EEOC is required by law to give the claimant the notice upon their request. See id.
CONCLUSION
The EEOCs Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id. When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” Id.
The reader is strongly encouraged to seek legal counsel when first considering claims of employment discrimination.
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As an employment attorney in Washington, I often converse with employment discrimination victims that believe their cases are weak, because they lack direct evidence. They’re unaware that using circumstantial evidence to prove employment discrimination is a common litigation practice that can sometimes lead to successful outcomes.
Under the Washington Law Against Discrimination (WLAD), may an employment discrimination victim rely on circumstantial, indirect, and inferential evidence to prove 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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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): 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:
(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.
[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.
“First, [under the burden-shifting framework,] an employee must make a prima facie case …[.]” Crabtree*, 500 P.3d at 211 (Wash. App. 2021) (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464 (2017)) (hyperlinks added). “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists. Id. at 211-12 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464).
STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON
“Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the … [adverse employment action].” See id. at 212 (citingMikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (hyperlink added). “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, the employer need only show that the employer’s evidence, if taken as true would permit the conclusion that there was a nondiscriminatory reason.” Id. (citing Mikkelsen*, 189 Wash.2d at 533, 404 P.3d 464).
STEP 3 – PRETEXT
“Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a pretext*.” Crabtree*, 500 P.3d at 212(citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (hyperlinks added).
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
Under the Washington Law Against Discrimination, I believe employment-discrimination plaintiffs may rely on circumstantial, indirect, and inferential evidence to prove employment discrimination. This is primarily because direct evidence of discriminatory intent is rare.
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Employees in Washington State that use employment-discrimination hotlines to submit complaints to their employers sometimes experience consequent retaliation by their employers. It’s not uncommon. Such employees who thereafter pursue associated claims of unlawful retaliation against their employers soon realize the importance of their hotline complaints — particularly, the wording.
Under Washington State unlawful-retaliation laws, should employees reporting employment discrimination via employment-discrimination hotlines specify their protected status (or statuses), when they might rely on those reports to pursue prospective, associated claims of unlawful-retaliation against their employers? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES
It is also 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.
(*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.)
UNLAWFUL RETALIATION (WA STATE)
“The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 753 (Div. 2 2013) (citing RCW 49.60.210) (hyperlink added).
THE PRIMA FACIE CASE
“To establish a prima facie* retaliation case, a plaintiff must show that[:]
(3) there is a causal link between the activity and the adverse action.
Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added) (emphasis added). The first element–statutorily protected activity–is at issue for purposes of this article.
(*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.)
ELEMENT #1: STUTORILY PROTECTED ACTIVITY
One way “[a]n employee engages in WLAD-protected activity [is] when … [the employee] opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).
However, “[a] general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Alonso, 178 Wn.App. at 754 (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)) (emphasis and hyperlink added).
EXAMPLE: ALONSO v. QWEST COMMUNICATIONS COMPANY, LLC (EMPLOYMENT-DISCRIMINATION HOTLINES)
In Alonso v. Qwest Communications Company, LLC, “Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on Alonso’s combat-veteran, disabled-person, and Mexican-American statuses.]” Id. at 734. “[T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.” Id. “Alonso appeal[ed], arguing that he provided sufficient evidence to establish [a] prima facie discrimination claim[ ] for[, inter alia,] … unlawful retaliation.” Id.
While working for Qwest, Alonso “used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor and another employee.” Id. at 754 (emphasis added). However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. (emphasis and hyperlink added).
Accordingly, “[t]he Court [of Appeals] initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.” Id. The court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not phone the hotline to report discrimination against him based on a protected class. Id. at 754 (hyperlink added). Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.
CONCLUSION
Under Washington State unlawful-retaliation laws, I believe employees electing to report employment discrimination–via employer hotlines–should seriously consider specifying their relevant protected status(es) if they might rely on those reports to prosecute associated, prospective unlawful-retaliation claims. IMPORTANT: In any event, NO content in this article, regardless of date, should ever be used as a substitute for direct legal advice from your attorney.
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*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
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Under the Washington Law Against Discrimination, how does one prove the “causal-link” element when pursuing a claim of unlawful retaliation? 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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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)
(3) a causal link between the employee’s protected activity and the adverse employment action.
Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).
*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
ELEMENT #3: PROVING THE CAUSAL LINK
“Ordinarily, proof of the employer’s motivation must be shown by circumstantial evidence because the employer is not apt to announce retaliation as his motive.” Kahn v. Salerno, 90 Wn. App. 110, 130-31, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998) (internal citations and quotation marks omitted). Accordingly, there are two typical methods of proving a causal link between the employee’s protected activity and the adverse employment action.
METHOD #1 (Proximity & Performance): “Proximity in time between the adverse action and the protected activity, coupled with evidence of satisfactory work performance and supervisory evaluations suggests an improper motive.” Id. (internal citations omitted).
METHOD #2 (Knowledge & Discharge): “[I]f the employee establishes that he or she participated in an opposition activity, the employer knew of the opposition activity, and he or she was discharged, then a rebuttable presumption is created in favor of the employee that precludes … [the court] from dismissing the employee’s case.” Id. (internal citation omitted).
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We invite you to read more of our blog articles about this topic:
*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
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Under the United States Equal Employment Opportunity Commission laws and regulations, what are Fair Employment Practice Agencies? 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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THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The United States Equal Employment Opportunity Commission (hereinafter, “EEOC”) is an independent federal agency, headquartered in Washington, D.C., that maintains 53 field offices serving the entire country. It’s charged with “enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.” See Official EEOC Website, https://www.eeoc.gov/overview (last accessed 11/2/22).
The EEOC “laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits”; those same laws also cover most labor unions and employment agencies. See id.
DEFINITION OF EMPLOYER
Generally, employers with at least 15 employees (20 employees in age discrimination cases) are subject to EEOC laws, however there are a few exceptions. For example, the EEOC is responsible for enforcing, inter alia, Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”); under Title VIIs definition of employer, not all are subject to its reach. The relevant provision states as follows:
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include[:]
(1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or
(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
42 U.S.C. § 2000e(b)(Definitions) (NOTE: the EEOC also enforces other laws beyond Title VII; the preceding was only one example) (emphasis added).
FAIR EMPLOYMENT PRACTICES AGENCIES (FEPAs)
The term Fair Employment Practices Agency or FEPA is a term coined by the EEOC. They are state and local government agencies charged with enforcing their own jurisdictional laws prohibiting discrimination; and their laws are similar to those enforced by the EEOC. However, it’s important to note:
In some cases, these agencies enforce laws that offer greater protection to workers, such as protection from discrimination because you are married or unmarried, have children or because of your sexual orientation. There also may be different deadlines for filing a charge, different standards for determining whether you are protected by these laws, and different types of relief available to victims of discrimination.
Under the Washington Law Against Discrimination (WLAD), what is the definition of “families with children status“? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.
(13) “Families with children status” means one or more individuals who have not attained the age of eighteen years being domiciled with a parent or another person having legal custody of such individual or individuals, or with the designee of such parent or other person having such legal custody, with the written permission of such parent or other person. Families with children status also applies to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years.
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).
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.
(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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNLWAFUL EMPLOYER COMMUNICATIONS & PREEMPLOYMENT ACTIVITIES
The Washington Law Against Discrimination, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. The relevant text is as follows:
(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, 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, advertising in a foreign language is not prohibited.
RCW 49.60.180(4) (hyperlinks and emphasis added). This is not an exhaustive recitation of the law on this subject. See chapter 49.60 RCW.
REMEDIES FOR UNFAIR PRACTICES
Typically, any person deeming himself or herself injured by their employer–as strictly defined by RCW 49.60.040(11)–as a result of its commission of an unfair practice is entitled to the following:
[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 Washington Law Against Discrimination 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.).
The WLAD, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. Accordingly, employers are prohibited from engaging in any of these activities if they express any limitation, specification, or discrimination as to a protected class or any intent to make any such limitation, specification, or discrimination.
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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.
Under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the fourth element–imputing harassment to employer–when pursuing a claim of hostile work environment? 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.)
It is also an unfair practice for an employer to retaliate (i.e., discharge, expel, or otherwise discriminate) against person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.
In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “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 hyperlinks added); see alsoGlasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) . This article will address the fourth element: that harassment can be imputed to the employer.
ELEMENT 4: IMPUTING HARASSMENT TO EMPLOYERS
In Glasgow v. Georgia-Pacific Corp., the Washington State Supreme Court explained how to impute harassment to employers, as follows:
[A. Owners, Managers, Partners or Corporate Officers:]
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.
[B. Supervisors or Co-Workers:]
To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
This my 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 … harassment [based on a protected class] 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 reasonable calculated to end the harassment. . . .
[C. Avoiding Liability:]
[A]n employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being . . . harassed [based on a protected class].
Id. at 407-08 (emphasis and paragraph formatting added) (last alteration in original).
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.
Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish the first element of the prima facie case for hostile work environment: the unwelcome element? 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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HOSTILE WORK ENVIRONMENT (HARASSMENT): THE PRIMA FACIE CASE
In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “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 hyperlinks added); see alsoGlasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) .
ELEMENT 1: HARASSMENT WAS UNWELCOME
To establish unwelcome conduct, “the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive.” Id. (hyperlink added).
Typically, an employee’s properly drafted and submitted internal complaints about the harassment–based on a protected class–are evidence that the employee subjectively believed he/she was being harassed. Thus, such complaints can be a powerful step in establishing this element. NOTE: There are other methods of proof that are beyond the scope of this article. In any event, it’s always possible that unintended consequences may result (e.g., write-ups, termination, etc.); accordingly, it is advisable for employees to proceed with caution and promptly seek legal counsel before taking action.
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. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
UNLAWFUL EMPLOYMENT AGENCY PRACTICES
Employment agencies are subject to Title VII. The following are considered unlawful employment agency practices:
…
(b) Employment agency practices
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(b) (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
Under the Washington Law Against Discrimination (WLAD), how do courts apply the Functionally-Similar Test when addressing claims of unlawful retaliation? 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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WLAD: THE ANTIRETALIATION PROVISION
The relevant WLAD antiretaliation provision is found under RCW 49.60.210(1), and it states as follows:
(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.
RCW 49.60.210(1) (emphasis added). That provision does not clearly establish what the phrase “other person” means. Washington courts apply the Functionally-Similar Test to, inter alia, determine what “other persons” are subject to WLAD’s antiretaliation provision.
Such discriminatory actions include those subject to WLAD’s antiretaliation provision. Accordingly, “[t]he [antiretaliation] section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. at 930 (emphasis and hyperlink added).
Thus, under the Functionally-Similar Test, a defendant might be held personally liable for discriminatory actions under the Washington Law Against Discrimination–including the antiretaliation provision–if that defendant satisfies any one or more of the following:
» Employs the plaintiff;
» Manages the plaintiff;
» Supervises the plaintiff;
» Is in a position to discharge the plaintiff;
» Is in a position to expel the plaintiff;
»Is in a position to expel plaintiff from membership in any organization.
See id. at 930-31.
EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.
In Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. 927, 930, 965 P.2d 1124 (1998), plaintiff Malo sued defendants Alaska Trawl Fisheries and its employee Captain Campbell, “alleging they had taken action against him in retaliation for his opposition to sexual harassment on board the vessel.” Malo, 92 Wn.app. at 928. The trial court dismissed Malo’s claims on summary judgment. Malo appealed.
The Court of Appeals found that Captain Campbell “did not employ, manage or supervise Malo”; and Campbell “was not in a position to discharge Malo or to expel him from membership in any organization.” Id. at 930. Consequently, Campbell did not pass the Functionally-Similar Test, and the court Court of Appeals found that “[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo’s claim against Campbell under that statute.” Id. at 930-31 (hyperlink added).
» Employs the plaintiff;
» Manages the plaintiff;
» Supervises the plaintiff;
» Is in a position to discharge the plaintiff;
» Is in a position to expel the plaintiff;
»Is in a position to expel plaintiff from membership in any organization.
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As an employment attorney in Washington State, I often litigate claims on behalf of employee-plaintiffs based on several common employment discrimination laws. Here are the top 3 employment discrimination laws that I litigate in Washington State . . .
(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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#3 — THE CIVIL RIGHTS ACT OF 1866 (§ 1981)
The Civil Rights Act of 1866 (Section 1981) is a federal law that prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). And the employment-at-will relationship is a contract for Section 1981 purposes.
Section 1981 is also known as “Equal rights under the law” and it states as follows:
(a) STATEMENT OF EQUAL RIGHTS
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “MAKE AND ENFORCE CONTRACTS” DEFINED
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) PROTECTION AGAINST IMPAIRMENT
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) “makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex[;] … makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit[;] … and requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.” U.S. EEOC Website (emphasis added).
Two other federal anti-discrimination laws, inter alia, broaden the protected classes, as follows:
(1) Age Discrimination In Employment Act (ADEA) which protects people who are 40 or older from both discrimination on account of age and unlawful retaliation against a person “because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit”; and
(2) Americans with Disabilities Act (ADA) that prohibits discrimination and unlawful retaliation against a qualified person with a disability. The ADA also “makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.” Further, the ADA requires that “employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.”
It is also 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. See id.
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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FEDERAL LAW
“In the employment context, the WLAD has three federal counterparts:
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 490, 325 P.3d 193 (Wash. 2014) (footnotes omitted) (hyperlinks and paragraph formatting added). However, “[t]he United States Supreme Court has never listed the elements of a prima facie claim for failure to accommodate religious practices.” Id. at 501 (footnote omitted).
FEDERAL CIRCUIT COURTS: A TEST BASED UPON THE DISPARATE IMPACT BURDEN-SHIFTING SCHEME
“Several Courts of Appeals … have adopted a [failure-to-accommodate-religious-practices] test based on the ‘disparate impact’ burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Kumar, 180 Wn.2d at 490 (referencing, e.g.,Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th Cir. 2013); Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012); Equal Emp’t Opportunity Comm’n v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Berry v. Dep’t of Soc. Serv., 447 F.3d 642, 655 (9th Cir. 2006)) (emphasis added).
WA STATE: FAILURE TO ACCOMMODATE RELIGIOUS PRACTICES: THE PRIMA FACIE CASE
In Kumar v. Gate Gourmet, the Washington State Supreme Court applied the above failure-to-accommodate-religious-practices test for the first time. According to that test, “a plaintiff establishes a prima facie claim of failure to accommodate religious practices by showing that[:]
(1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties;
(2) he or she informed the employer of the beliefs and the conflict; and
(3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment.
Id. at 501-02 (citing Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)) (footnote omitted) (emphasis added).
THE 3RD ELEMENT: IMMEDIATE RISK OF ACTUAL FIRING/DEMOTION IS IRRELEVANT
Regarding the third element of the prima facie case: “An employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Id. at 514 n.30 (referencing, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (“employee established an ‘adverse employment action’ for purposes of prima facie religious accommodation claim where employer ‘formally instruct[ed] him not to pray with or proselytize to clients'” ); Equal Emp’t Opportunity Comm’n v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”)) (internal quotation marks omitted).
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Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish a disability-based hostile work environment case via circumstantial evidence? 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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THE PRIMA FACIE CASE: DISABILITY-BASED HOSTILE WORK ENVIRONMENT VIA CIRCUMSTANIAL EVIDENCE
To establish a disability-based hostile work environment case via circumstantial evidence, a plaintiff must first establish a prima facie case by proving:
(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD],
(2) that the harassment was unwelcome,
(3) that it was because of the disability,
(4) that it affected the terms and conditions of employment, and
To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).
THIRD ELEMENT (BECAUSE OF DISABILITY)
To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration in original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.
FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT)
To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)).
“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration in original).
FIFTH ELEMENT (IMPUTABLE TO EMPLOYER)
To impute harassment to an employer, “the jury must find either that[:]
(1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that
(2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.”
Id. at 47 (internal citation and quotation marks omitted) (second alteration in original) (paragraph formatting added).
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Under the Washington Law Against Discrimination (WLAD), what is the definition of “sex”? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
(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;
(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:
(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.
[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.
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.
DEFINITION OF SEX
“Sex” is one among a variety of protected classes under WLAD. Chapter 49.60.040(26) RCW is the relevant law, and it defines the term “sex” as follows:
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).
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.
(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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INDEPENDENT CONTRACTORS: GENDER
In Washington State, “an independent contractor may bring an action for discrimination in the making or performance of [a] contract for personal services.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182 (Wash. 2018). at 192 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 100-01, 922 P.2d 43 (1996)) (alterations in original) (internal quotation marks omitted).
Such discrimination claims may be “based on sex [or gender] ….” Marquis, 130 Wn.2d at 100-01.
THE PRIMA FACIE CASE
The relevant law concerning the prima facie case is found under Washington Law Against Discrimination, RCW 49.60. However, because “RCW 49.60.030 does not provide the criteria for a prima facie claim, … [the court] crafted criteria through case law[ ][:]
[T]he plaintiff in a sex discrimination case must show (1) membership in a protected class; (2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work; (3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex.
Specialty Asphalt, 191 Wn.2d at 204 n.6 (citing Marquis, 130 Wn.2d at 113-14) (alteration in original) (emphasis and hyperlink added).
TREATED DIFFERENTLY FROM SIMILARLY SITUATED MEMBERS OF THE OPPOSITE SEX BECAUSE OF GENDER
Moreover, “[t]he Marquis case provides three examples … [of how a plaintiff–in an action for discrimination in the making and performance of an employment contract–may show that the plaintiff was treated differently from similarly situated members of the opposite sex because of plaintiff’s gender]:
[ (1) ] [T]hat he or she was denied the position,
[ (2) ] was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or,
[ (3) ] once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.
Specialty Asphalt, 191 Wn.2d at 193 (internal citation omitted) (second-fifth alterations in original).
SUMMARY JUDGMENT: EVIDENCE
CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE: “To establish discriminatory action, plaintiffs may rely on circumstantial, indirect, and inferential evidence.” Id. at 192 (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017) (“assessing a claim under RCW 49.60.180“) (internal quotation marks omitted).
SUMMARY JUDGMENT IMPROPER:Summary judgment is improper “[w]hen the record contains reasonable but competing inferences of both discrimination and nondiscrimination[ ][; in that case,] the trier of fact must determine the true motivation.” Id. at 191-92 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (citing Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 90, 272 P.3d 865 (2012))).
TOTALITY OF THE EVIDENCE: “[E]vidence should be taken together when considering whether there are ‘reasonable but competing inferences of both discrimination and nondiscrimination.'” See id. at 192 (internal citation and quotation marks omitted).
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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.
(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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DISPARATE TREATMENT
Disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)) (hyperlink added).
“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).
THE PRIMA FACE CASE: 2 METHODS
“A plaintiff can establish a prima facie case by either[:]
[1.] offering direct evidence of an employer’s discriminatory intent, or …
Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).
This article will address the direct evidence method.
THE DIRECT EVIDENCE METHOD
Under the direct evidence method, “a plaintiff can establish a prima facie case by providing direct evidence that[:]
(1) the defendant employer acted with a discriminatory motive and
(2) the discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).
CONSIDERATIONS
» EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).
» SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).
Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).
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. 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) (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).
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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.
(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): 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): 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): 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): 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.”
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. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS (WA STATE)
AFFIRMATIVE DUTY TO ACCOMMODATE: Washington Law Against Discrimination (WLAD) “gives employers an affirmative duty to accommodate an employee‘s disability.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 586 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing RCW 49.60.180(2); LaRose v. King County, 8 Wn.App.2d 90, 125, 437 P.3d 701 (2019)) (hyperlinks added).
SCOPE: “A reasonable accommodation must allow the employee to work in the environment and perform the essential functions of her job without substantially limiting symptoms.” Id. (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 777-78, 249 P.3d 1044 (2011)) (internal quotation marks omitted).
MULTIPLE METHODS OF ACCOMMODATION: “Where multiple potential methods of accommodation exist, the employer is entitled to select the appropriate method.” Id. (citing Frisino, 160 Wn.App. at 779).
THE PRIMA FACIE CASE (WA STATE)
“An employee claiming his or her employer failed to accommodate a disability must prove that[:]
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. 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.)
It is also 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.
DISPARATE TREATMENT
Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class.
Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).
A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)). This article solely addresses the direct evidence approach.
DIRECT EVIDENCE TEST
The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:
1. The defendant employer acted with a discriminatory motive; and
2. The discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing Kastanis, 122 Wn.2d at 491).
SIGNIFICANT/SUBSTANTIAL FACTOR
The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.
However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).
A demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).
CONCLUSION
An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.
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In Washington State, employees may seek recourse for employment discrimination through federal, state, and local governmental agencies. Here’s my countdown of the top 3 employment discrimination agencies in the state of Washington (based on my point of view as an employment discrimination attorney):
(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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#3 — MUNICIPAL CIVIL RIGHTS DEPARTMENTS
Some municipalities (e.g., Seattle Office for Civil Rights, Tacoma Human Rights Commission, etc.) have established departments that work to resolve, inter alia, employment discrimination and retaliation complaints based on protected classes. The services offered by these departments vary from city to city, and not all municipalities in Washington State maintain such departments.
1. Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
2. Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
3. Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.
4. Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.
The Washington Law Against Discrimination (WLAD), RCW 49.60, is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions based on protected classes.
Protected classes include the following: race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, 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.
WLAD also prohibits retaliation against persons who engage in protected activity in relation to discriminatory practices, and those who file health care and state employee whistleblower complaints.
The Washington State Human Rights Commission (WSHRC) is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. It works to prevent and eliminate discrimination through complaint investigation, alternative dispute resolution, and education, training and outreach activities.
(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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
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:
(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.
[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). The WLAD defines organizational types that are subject it.
(16) “Labor organization” includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment.
RCW 49.60.040(16) (emphasis and hyperlinks added). Victims of discrimination in violation of the WLAD may seek generous remedies.
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).
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.
(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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
(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
RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD regulates, inter alia, insurance transactions.
DEFINITION OF INSURANACE TRANSACTION (AND HEALTH MAINTENANCE ORGANIZATION)
The WLAD defines insurance transaction as follows:
RCW 48.01.060
“Insurance transaction” defined.
“Insurance transaction” includes any:
(1) Solicitation.
(2) Negotiations preliminary to execution.
(3) Execution of an insurance contract.
(4) Transaction of matters subsequent to execution of the contract and arising out of it.
(5) Insuring.
RCW 48.01.060 (paragraph formatting and hyperlink added).
NOTE: The WLAD also establishes, inter alia, the right to engage in transactions with health maintenance organizations without discrimination; accordingly, the WLAD defines “health maintenance organization” as follows:
…
(13) “Health maintenance organization” means any organization receiving a certificate of registration by the commissioner under this chapter which provides comprehensive health care services to enrolled participants of such organization on a group practice per capita prepayment basis or on a prepaid individual practice plan, except for an enrolled participant’s responsibility for copayments and/or deductibles, either directly or through contractual or other arrangements with other institutions, entities, or persons, and which qualifies as a health maintenance organization pursuant to RCW 48.46.030 and 48.46.040.
Persons engaging in insurance transactions, as defined by the WLAD, are prohibited from engaging in specific unfair practices. The relevant WLAD provision follows:
RCW 49.60.178
Unfair practices with respect to insurance transactions.
For the purposes of this section, “insurance transaction” is defined in RCW 48.01.060, health maintenance agreement is defined in RCW 48.46.020, and “health maintenance organization” is defined in RCW 48.46.020.
(2) The fact that such unfair practice may also be a violation of chapter 48.30, 48.43, 48.44, or 48.46 RCW does not constitute a defense to an action brought under this section.
(3) The insurance commissioner, under RCW 48.30.300 and 48.43.0128, and the human rights commission, under chapter 49.60 RCW, shall have concurrent jurisdiction under this section and shall enter into a working agreement as to procedure to be followed in complaints under this section.
RCW 49.60.178 (paragraph formatting and hyperlinks added).
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).
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.
(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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD regulates, inter alia, credit transactions.
DEFINITION OF CREDIT TRANSACTION
The WLAD defines “credit transaction” as follows:
…
(6) “Credit transaction” includes any open or closed end credit transaction, whether in the nature of a loan, retail installment transaction, credit card issue or charge, or otherwise, and whether for personal or for business purposes, in which a service, finance, or interest charge is imposed, or which provides for repayment in scheduled payments, when such credit is extended in the regular course of any trade or commerce, including but not limited to transactions by banks, savings and loan associations or other financial lending institutions of whatever nature, stock brokers, or by a merchant or mercantile establishment which as part of its ordinary business permits or provides that payment for purchases of property or service therefrom may be deferred.
Persons engaging in credit transactions, as defined by WLAD, are prohibited from engaging in specific unfair practices. The relevant WLAD provision is as follows:
(b) To increase the charges or fees for or collateral required to secure any credit extended to any person;
(c) To restrict the amount or use of credit extended or to impose different terms or conditions with respect to the credit extended to any person or any item or service related thereto;
(d) To attempt to do any of the unfair practices defined in this section.
(2) Nothing in this section shall prohibit any party to a credit transaction from considering the credit history of any individual applicant.
(3) Further, nothing in this section shall prohibit any party to a credit transaction from considering the application of the community property law to the individual case or from taking reasonable action thereon.
RCW 49.60.176 (paragraph formatting and hyperlinks added).
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).
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.
Under the Washington Law Against Discrimination (WLAD), what is the definition of “any place of public resort, accommodation, assemblage, or amusement”? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
(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;
(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 regulates, inter alia, employment agencies.
DEFINITION OF “ANY PLACE OF PUBLIC RESORT, ACCOMMODATION, ASSEMBLAGE, OR AMUSEMENT”
The WLAD defines “any place of public resort, accommodation, assemblage, or amusement” as follows:
…
(2) “Any place of public resort, accommodation, assemblage, or amusement” includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children’s camps:
PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution.
RCW 49.60.040(2) (hyperlink and paragraph formatting added).
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.
Under the Washington Law Against Discrimination (WLAD), what is the definition of “service animal”? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
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:
(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.
[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.
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.
DEFINITION OF SERVICE ANIMAL
The use of a trained service animal by a person with a disability is one among a variety of protected classes under WLAD. The Washington Law Against Discrimination defines the term “service animal” as follows:
…
(25) “Service animal” means any dog or miniature horse, as discussed in RCW 49.60.214, that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by the service animal must be directly related to the individual’s disability.
Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.
The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.
This subsection does not apply to RCW 49.60.222 through 49.60.227 with respect to housing accommodations or real estate transactions.
RCW 49.60.040(25) (hyperlinks and paragraph formatting added).
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).
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.
(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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
Employment agencies meeting the WLAD definition are prohibited from engaging in specific unfair practices in employment. The relevant provisions of the WLAD state as follows:
RCW 49.60.200
Unfair practices of employment agencies.
… 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, race, sexual orientation, creed, color, or 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 49.60.200 (hyperlinks, emphasis, and paragraph formatting added).
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).
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.
Under the Washington Law Against Discrimination (WLAD), what is the definition of “commission”? 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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:
Freedom from discrimination—Declaration of civil rights.
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.
Under Washington State laws, what is the definition of a prima facie case? 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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THE DICTIONARY
The term “prima facie” means “at first sight; on first appearance but subject to further evidence or information.” Black’s Law Dictionary 1228 (8th ed. 2004).
A “prima facie case” means: “1. The establishment of a legally required rebuttable presumption … [; or] 2. A party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Id.
THE CASE LAW
The Washington State Supreme Court has declared, “* * * A ‘prima facie case’ is one where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted by a jury or other trier of fact.” Nopson v. City of Seattle, 33 Wn.2d 772, 812, 207 P.2d 674 (1949) (citing McCoy v. Courtney, 25 Wash.2d 956, 962, 172 P.2d 596, 600, 170 A.L.R. 603).
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.
Under Title VII of the Civil Rights Act of 1964, what is the definition of “religion”? 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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against both age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
TITLE VII DEFINITION OF RELIGION
Title VII defines the term “religion” as follows:
…
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
42 U.S.C. § 2000e(j)* (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
(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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
TITLE VII DEFINITION OF EMPLOYMENT AGENCY
Title VII defines the term “employment agency” as follows:
42 U.S.C. § 2000e(c)* (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
(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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
TITLE VII DEFINITION OF “INDUSTRY AFFECTING COMMERCE”
(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.*], and further includes any governmental industry, business, or activity.
42 U.S.C. § 2000e(h)* (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
(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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
TITLE VII DEFINITION OF LABOR ORGANIZATION
Title VII defines the term “labor organization” as follows:
…
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after March 24, 1972, or (B) fifteen or more thereafter, and such labor organization—
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
42 U.S.C. § 2000e(e)* (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
Under Title VII of the Civil Rights Act of 1964, what is the definition of “commerce”? 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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.
SCOPE OF TITLE VII
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
42 U.S.C. § 2000e(g) (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
TITLE VII ENFORCEMENT
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
Under Title VII of the Civil Rights Act of 1964, what is the definition of “person”? 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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
Retaliation
Retaliation against an individual who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer‘s ability to conduct business.
TITLE VII DEFINITION OF PERSON
Title VII defines the term “person” as follows:
(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.
42 U.S.C. § 2000e(a) (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
TITLE VII ENFORCEMENT
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws[, including Title VII,] that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
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.
