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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What is the Statute of Limitations for Wrongful Termination in WA?
(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.)
(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.)
Administrative Agencies (WSHRC & EEOC):
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.
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:
→ Section 1981 (42 U.S.C. §1981) (when the termination supports a viable legal theory of racial discrimination)
Talk to an attorney to determine the statute of limitations for relevant state and federal laws. See “Warning,” above.
Additional Information:
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.
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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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(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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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.)
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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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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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.
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 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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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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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.
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 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.
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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).
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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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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.
(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).
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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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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(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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