Discrimination Archives — LAW OFFICE OF GREGORY A. WILLIAMS

January 8, 2026January 8, 2026

Harmful Employment-Law Idioms: “Playing the Race Card”

Harmful Employment-Law Idioms: "Playing the Race Card"

Why is the idiom “playing the race card” harmful for employment-discrimination victims? Here’s my point of view.

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

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Why “Playing the Race Card” Is a Harmful Idiom—and Shouldn’t Deter Employees in Washington State from Seeking Justice

In today’s workplaces, discussions about race and discrimination remain highly sensitive—and sometimes even controversial. Unfortunately, one phrase often used to undermine these conversations is the idiom “playing the race card.” Though it may seem like a casual expression, this phrase carries derogatory connotations and can have a chilling effect on individuals experiencing racial discrimination.

For employees in Washington State facing unfair treatment based on race, it’s essential to understand that seeking legal help is not only your right—it can be a necessary step in protecting yourself and improving workplace equity for everyone.

The Problem with “Playing the Race Card”

At its core, the idiom “playing the race card” implies that someone is opportunistically or manipulatively invoking their race to gain an advantage or excuse poor behavior. This notion casts doubt on the legitimacy of racial discrimination claims and frames the accuser as disingenuous.

This phrase is problematic for several reasons:

1. It Delegitimizes Genuine Concerns: Using this idiom suggests that raising concerns about racism is inherently suspect or dishonest. This mindset undermines the very real, and often well-documented, existence of racial bias in employment decisions such as hiring, promotions, compensation, and termination.

2. It Discourages Reporting: When people fear being accused of “playing the race card,” they may hesitate to come forward with valid claims. This reluctance allows discriminatory practices to persist unchecked.

3. It Perpetuates Systemic Inequality: Framing race-based complaints as exaggerated or attention-seeking minimizes the systemic nature of racism and prevents meaningful dialogue or change.

Know Your Rights in Washington State

Washington State has some of the strongest anti-discrimination laws in the country. Under both state and federal law, it is illegal for an employer to discriminate against an employee or job applicant based on certain protected classes including, but not limited to, race.

If you believe that your employer has treated you unfairly because of your race, you have the right to file a complaint and pursue legal recourse. This may include:

» Unequal pay or benefits

» Disparate impact

» Disparate treatment

» Harassment or hostile work environment

» Wrongful termination or demotion

» Retaliation for reporting discrimination

The Washington Law Against Discrimination (WLAD) provides legal protection for workers and allows victims to seek remedies such as reinstatement, back pay, front pay, emotional distress damages, and attorney’s fees.

Why Speaking to an Employment Attorney Matters

Racial discrimination in the workplace is not always blatant. It can take subtle forms—like being passed over for promotions, consistently receiving worse assignments, or enduring offhand remarks that create a hostile environment. An experienced employment attorney can help assess your situation, gather evidence, and advise you on the best path forward.

Crucially, consulting a lawyer sends a clear message: you are not “playing” at anything—you are asserting your legal rights under the law.

Moving Beyond the Stigma

Challenging racial bias isn’t easy, and it often comes with emotional and professional risks. But phrases like “playing the race card” should not be allowed to shame or silence those who have the courage to speak out.

If you’re experiencing discrimination in your workplace, know that your concerns are valid. You don’t have to tolerate unfair treatment, and you’re not alone. Protect your rights. Seek legal guidance. And remember: justice begins with the decision to stand up and be heard.

READ OUR RELATED ARTICLES

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

» Title VII of the Civil Rights Act of 1964

» What is WA State’s Law Against Employment Discrimination?

LEARN MORE

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

–gw

January 1, 2026January 1, 2026

Employment Discrimination Based Upon Cannabis Use (WA State)

Under Washington State law, may employers discrimination against job candidates based on cannabis use? Here’s my point of view.

Washington’s Cannabis Hiring Law: What Employers and Applicants Need to Know

Washington State has taken a distinctive step in aligning employment practices with the legalization of cannabis. RCW 49.44.240*, effective January 1, 2024, limits how employers may use cannabis-related information in initial hiring decisions—while preserving important safety and federal-law exceptions. (NOTE: For purposes of RCW 49.44.240, “‘cannabis’ has the meaning provided in RCW 69.50.101*.”)

The Core Rule

At its heart, the statute makes it unlawful for an employer to refuse to hire someone based solely on either of two things:

1. the applicant’s lawful, off-duty cannabis use away from the workplace; or

2. a preemployment drug test that detects “nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

See RCW 49.44.240* (emphasis added). This distinction matters. Nonpsychoactive metabolites can remain in the body long after any intoxicating effects have worn off. The law recognizes that such results say little about an applicant’s current impairment or fitness for work.

Importantly, the protection applies only to initial hiring. The statute does not address discipline or termination of current employees.

What the Law Does Not Do

RCW 49.44.240* is not a blanket ban on drug testing, nor does it require employers to tolerate impairment at work.

Employers may still:

• Use scientifically valid drug tests that do not screen for nonpsychoactive cannabis metabolites (for example, tests designed to detect recent impairment rather than past use);

• Enforce drug- and alcohol-free workplace policies, especially where required by federal law or regulation;

• Conduct post-accident testing or testing based on reasonable suspicion of impairment; and

• Test for controlled substances other than cannabis as permitted by law.

The statute also expressly does not override state or federal laws that mandate testing as a condition of employment, licensing, federal funding, or federal contracts. In addition, employers may require broad-spectrum drug testing through third parties, so long as cannabis results are withheld from the employer and not used in hiring decisions.

Who Is Excluded

The law includes a detailed list of positions to which these protections do not apply. These include roles that implicate public safety, federal oversight, or heightened risk, such as:

(a) A position requiring a federal government background investigation or security clearance;

(b) A position with a general authority Washington law enforcement agency as defined in RCW 10.93.020*;

(c) A position with a fire department, fire protection district, or regional fire protection service authority;

(d) A position as a first responder not included under (b) or (c) of this subsection, including a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services;

(e) A position as a corrections officer with a jail, detention facility, or the department of corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities;

(f) A position in the airline or aerospace industries; or

(g) A safety sensitive position for which impairment while working presents a substantial risk of death. Such safety sensitive positions must be identified by the employer prior to the applicant’s application for employment.

RCW 49.44.240* (emphasis added). For these jobs, employers may continue to consider cannabis test results in preemployment screening.

Implications

For applicants, RCW 49.44.240* provides reassurance that lawful, off-duty cannabis use—by itself—should not bar access to many jobs in Washington. For employers, the statute requires a careful review of hiring policies, drug-testing methods, and job classifications to ensure compliance.

The takeaway is not that cannabis is irrelevant in the workplace, but that Washington law draws a clear line between past, lawful use and on-the-job safety and impairment. Navigating that line thoughtfully is now a key part of lawful hiring in the state.

LEARN MORE

–gw

November 21, 2025

Constructive Discharge: Discrete & Non-Discrete Acts

Under Washington State law, may a constructive discharge be based on discrete and/or non-discrete acts? Here’s my point of view.

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

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Constructive Discharge: Discrete & Non-Discrete Acts

Constructive discharge occurs when an employer deliberately creates working conditions so intolerable that a reasonable person in the shoes of the employee would feel compelled to resign.

A constructive discharge can be based on a discrete act (which can be discriminatory or retaliatory), and/or non-discrete acts, such as a hostile work environment. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998); see also Pennsylvania State Police v. Suder, 542 U.S. 129, 149 (2004) (a hostile-work environment claim is a “lesser included component” of the “graver claim of hostile-environment constructive discharge”).

Conclusion

Under Washington State law, a constructive discharge may be based on discrete and/or non-discrete acts.

need help?

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

-gw

November 13, 2025November 13, 2025

What are the elements of Disparate Treatment in WA State?

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FAQ: What are the elements of Disparate Treatment in WA State?

answer:

The elements of a Disparate Treatment claim in WA State require an employee-plaintiff to show:

a) Plaintiff is a member of one or more protected classes;

b) Plaintiff suffered a tangible adverse employment action;

c) The action occurred under circumstances that raise a reasonable inference of unlawful discrimination; and

d) Plaintiff was doing satisfactory work.

See Marin v. King County*, 194 Wn.App. 795, 808-09 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016).

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — DISPARATE TREATMENT — Generally

Under the WLAD, 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, [disability], [age], 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)) (hyperlinks added).

THE “ADVERSE EMPLOYMENT ACTION” ELEMENT

Adverse employment action “means ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” Id.* at 808 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

THE “REASONABLE INFERENCE OF UNLAWFUL DISCRIMINATION” ELEMENT

Employment-discrimination plaintiffs often establish this element by using similarly situated, nonprotected co-workers for comparison. Such “[s]imilarly situated employees must have the same supervisor, be subject to the same standards, and have engaged in the same conduct.” Id.* at 810 (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)).

ELEMENTS ARE NOT ABSOLUTE But VARY BASED ON RELEVANT FACTS

“The elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin*, 194 Wn.App. at 808 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)).

WLAD REMEDIES

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

Read Our Related Articles

» Definition of Prima Facie Case*

» Disparate Treatment: A Closer Look*

» Disparate Treatment: Bona Fide Occupational Qualification*

» Disparate Treatment vs. Disparate Impact Discrimination*

» Disparate Treatment via Hostile Work Environment*

» Disparate Treatment: Pretext by Comparison

» McDonnell Douglas Framework (Step 1): The Prima Facie Case*

» Prima Facie Case: The Replacement Element*

» The Prima Facie Case: Disparate Treatment

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» Top 3 Reasons Disparate Treatment Claims Fail

» WLAD: Disparate Treatment via Hostile Work Environment

* (NOTE: This is an external link that will take you to our Williams Law Group Blog.)

NEED HELP?

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

November 6, 2025November 6, 2025

Can you prove employment discrimination without direct evidence?

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Can you prove employment discrimination without direct evidence?

answer:

Yes, plaintiffs can prove employment discrimination without direct evidence. In Washington State, “[a] plaintiff can establish a prima facie case [of employment discrimination] by either[:]

[1.] offering direct evidence of an employer‘s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734, 743-44 (Div. 2 2013) (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis, paragraph formatting, and hyperlinks added).

Accordingly, the McDonnell Douglas burden-shifting test provides an alternative way for plaintiffs to establish a prima facie case of employment discrimination using indirect, circumstantial evidence instead of direct evidence.

The McDonnell Douglas Burden-Shifting Framework

The McDonnell Douglas burden-shifting framework* has three steps:

STEP 1*: The “plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination.” Scrivener v. Clark College*, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 2*: “[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason* for the adverse employment action.” Mikkelsen v. Public Utility District No. 1 of Kittitas County*, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 3*: “[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant’s alleged nondiscriminatory reason for the adverse employment action was a pretext*.” Id.* (internal citations omitted) (emphasis & hyperlink added).

Read Our Related Articles

»Employment Law 101: Definition of Circumstantial Evidence (WA State)

»McDonnell Douglas Framework (Step 1): The Prima Facie Case*

»McDonnell Douglas Framework (Step 2): The Employer’s Burden*

»McDonnell Douglas Framework (Step 3): Proving Pretext*

»Proving Discrimination: The Direct-Evidence Method

»The McDonnell Douglas Burden Shifting Framework*

»The Pretext Element: Self-Evaluations*

»The Pretext Element: Six Limitations*

»The Pretext Element: Two Methods of Proof*

»Using Circumstantial Evidence to Prove Employment Discrimination

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

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September 18, 2025September 18, 2025

What is Section 1981?

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FAQ: What is Section 1981?

answer:

Title 42 of the United States Code § 1981 (“Section 1981” or “§ 1981”) is a cornerstone of civil rights law, ensuring equal treatment for all individuals in the U.S., regardless of race. It primarily protects the right to make and enforce contracts–which includes “the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship”–ensuring that people of all racial backgrounds can participate equally in legal and business affairs. 42 U.S.C. § 1981*. The relevant law states as follows:

42 U.S. Code § 1981 – Equal rights under the law

(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.

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

Id.*

THE EMPLOYMENT CONTEXT

In the employment context, § 1981 “bars employers from discriminating and retaliating against employees based on the employee’s race[.]” Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014); see Surrell v. California Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (“[Section] 1981 prohibits discrimination in the ‘benefits, privileges, terms and conditions’ of employment.”) (citing 42 U.S.C. § 1981(b)) (other citation omitted). Thus, Section 1981 specifically prohibits racial discrimination. Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir. 1986).

Equal Rights in Contracts and Legal Matters

Section 1981 guarantees that everyone has the same rights as white citizens to engage in contracts, participate in legal proceedings, and receive legal protections. This includes the ability to sue, give evidence, and ensure the safety of one’s person and property, free from racial discrimination.

Scope of “Making and Enforcing Contracts”

The law goes beyond just the signing of agreements. It covers the entire process of creating, performing, modifying, and terminating contracts. The statute ensures that individuals can enjoy the same benefits and terms within a contractual relationship, regardless of their race or ethnicity.

Protection Against Discrimination

Section 1981 prohibits both governmental and private entities from discriminating based on race in contractual and legal matters. This means individuals are protected from racial bias not only by government actions but also by private employers, businesses, and organizations.

Conclusion

In sum, 42 U.S. Code Section 1981 plays a vital role in ensuring racial equality in contractual and legal rights, supporting fair treatment for all individuals in the U.S. It is an essential tool for protecting civil rights and promoting an equitable society.

NEED HELP?

September 11, 2025September 11, 2025

WSHRC: Breach of Conciliated Agreement

Under the Washington State Administrative Code (hereinafter, “WAC”), how may the Washington State Human Rights Commission address the breach of a conciliated agreement? Here’s my point of view.

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Breach of Conciliated Agreement Under Washington Law

When discrimination complaints are resolved through Washington’s administrative process, the parties may enter into a conciliated agreement approved by the Washington State Human Rights Commission (WSHRC). These agreements are designed to eliminate unlawful practices under the Washington Law Against Discrimination (WLAD), RCW 49.60*. But what happens if one party fails to honor the terms of that agreement?

WAC 162-08-109* addresses this issue by outlining the tools available to the Commission’s executive director when a conciliation agreement is breached; it states as follows:

WAC 162-08-109
Breach of conciliated agreement.

If an agreement and order for the elimination of an unfair practice made under RCW 49.60.240* is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:

(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;

(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or

(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310*.

WAC 162-08-109* (emphasis and paragraph formatting added).

Options Available to the Commission

Thus, if a party violates the agreement, the executive director may choose one or more of the following steps, depending on the circumstances:

1. Specific Enforcement in Court

The Commission may file an action in superior or district court to enforce the agreement. This could mean seeking a court order that compels compliance with the original terms, or pursuing damages that were provided for in the agreement.

2. Setting Aside the Agreement

The executive director may recommend that the Commissioners void the agreement, in whole or in part. If this occurs, the case can be reopened for further conciliation efforts, or it may be referred to the Commission’s legal counsel for a formal hearing.

3. Referral for Prosecution

In certain cases, the violation may be referred to the appropriate prosecuting attorney for enforcement under RCW 49.60.310*, which provides for criminal penalties in connection with violations of the WLAD.

Why This Rule Matters

For individuals, this rule ensures that entering into a conciliation agreement is not the end of the road—there is accountability if the other party fails to follow through. For attorneys, it highlights the importance of drafting and reviewing conciliation agreements carefully, since breach can lead to renewed litigation, enforcement actions, or even criminal referral.

In short, WAC 162-08-109* underscores that compliance with conciliation agreements is not optional. The Human Rights Commission has meaningful enforcement mechanisms to protect both the integrity of the process and the rights of the parties involved.

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

» Remedies for Breach of Conciliation Agreements*

» WSHRC: Objective of Conciliation

LEARN MORE

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

–gw

September 3, 2025October 2, 2025

Unlawful Retaliation via Hostile Work Environment (9th Circuit)

Unlawful Retaliation via Hostile Work Environment

Under Title VII of the Civil Rights Act of 1964, may a hostile work environment form the basis for unlawful retaliation when pursuing claims in the 9th Circuit? Here’s my point of view.

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Title VII (9th Circuit): Hostile Work Environment (Harassment) May Form the Basis for Retaliation Claims

The Ninth Circuit* recognizes that a “hostile work environment may be the basis for a retaliation claim under Title VII” since “[h]arassment . . . is the paradigm of ‘adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’” Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir. 2000) (quoting EEOC Compliance Manual ¶ 8008) (hyperlinks added). Under either theory, “[h]arassment is actionable only if it is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Id. at 1245 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

Read our related articles

» Title VII of the Civil Rights Act of 1964

» What are the elements of Hostile Work Environment in WA State?

» What are the elements of Unlawful Retaliation in WA State?

need help?

-gw

July 4, 2025September 11, 2025

WSHRC: Objective of Conciliation

Under the Washington State Administrative Code (hereinafter, “WAC”), what does the term “conciliation” mean when pursuing complaints through the Washington State Human Rights Commission (hereinafter, “WSHRC”)? Here’s my point of view.

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Understanding WAC 162-08-102: The Objective of Conciliation in Washington State Discrimination Law

When an allegation of discrimination arises under Washington’s Law Against Discrimination (WLAD), RCW 49.60*, one of the first tools employed by the Washington State Human Rights Commission (“Commission”) is conciliation. This process—grounded in WAC 162-08-102*—offers both legal professionals and the public insight into how the state prioritizes resolution of disputes in a way that not only halts discriminatory practices but also remedies their lingering effects.

The Regulatory Framework

The relevant Washington State Administrative Code* (“WAC”) states as follows:

WAC 162-08-102
Objective of conciliation.

The commission‘s staff in its endeavors to eliminate an unfair practice by conference, conciliation and persuasion under RCW 49.60.250* shall be guided by the purposes of the law against discrimination and by the policies and objectives of the commission, particularly as expressed in WAC 162-08-061*, 162-08-062* and 162-08-298*. Elimination of an unfair practice includes elimination of the effects of the unfair practice, as well as assurance of the discontinuance of the unfair practice.

WAC 162-08-102* (first & second hyperlinks added). This administrative regulation establishes that conciliation is not simply about stopping an unfair practice; it is about eliminating both the discriminatory conduct and its consequences. The regulation instructs the Commission’s staff to approach conciliation guided by:

• The purposes of the WLAD (ensuring equal opportunity and freedom from discrimination).

• The policies and objectives of the Commission, especially those articulated in related provisions:

– WAC 162-08-061* (Relationship of commission to complainant),

– WAC 162-08-062* (Concurrent remedies–Other remedies), and

– WAC 162-08-298* (Remedies).

By linking WAC 162-08-102* to these provisions, the regulation underscores that conciliation is not a mere formality—it is a central mechanism for enforcing civil rights protections in Washington.

What Conciliation Means in Practice

For attorneys representing clients, understanding the scope of conciliation is critical. The process typically involves:

1. Conference and Persuasion – Informal discussions between the Commission, complainant, and respondent to explore resolution.

2. Conciliation Agreements – Negotiated commitments by respondents to both cease the discriminatory conduct and remedy its effects (for example, reinstatement, back pay, or policy changes).

3. Forward-Looking Protections – Ensuring that the respondent adopts practices to prevent recurrence, often through training, monitoring, or systemic reforms.

Unlike private settlement agreements, Commission conciliation carries a public interest dimension: it is designed not just to resolve disputes between parties, but to advance the state’s broader mandate of eradicating discrimination.

Why the Distinction Matters

The language of WAC 162-08-102* makes clear that a successful conciliation must address two distinct goals:

• Stopping the discriminatory practice itself.

• Eliminating its ripple effects. For example, in an employment discrimination case, this could include back wages, seniority adjustments, or workplace reforms that restore the complainant’s position and opportunities.

For practitioners, this means conciliation is not just about negotiating a quick settlement—it is about ensuring structural and remedial relief consistent with the Commission’s objectives.

Implications for Legal Professionals and the Public

For Attorneys: Awareness of conciliation’s dual focus equips counsel to advise clients realistically about potential remedies and obligations. Respondents must be prepared to do more than simply “stop” a practice—they must also correct its consequences.

For the Public: The Commission’s emphasis on conciliation reflects a commitment to fairness. Individuals subjected to discrimination should know that the process aims not only to halt misconduct but also to restore their rights and opportunities.

Conclusion

WAC 162-08-102 reinforces that conciliation is more than compromise—it is corrective justice. By requiring elimination of both the practice and its effects, Washington’s regulatory framework ensures that conciliation serves as a meaningful tool in advancing the WLAD’s mission: a state free from discrimination.

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

» Remedies for Breach of Conciliation Agreements*

» The Intersection of WSHRC and EEOC*

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Damages for Humiliation and Suffering*

» WA State Human Rights Commission: Functions, Powers, and Duties

» WSHRC: Breach of Conciliated Agreement

» WSHRC: From Complaint to Conclusion

» WSHRC: Organization and Operations

» WSHRC: Procedure When None Is Specified

» WSHRC: Relationship of Commission to Complainant

» WSHRC: Withdrawal of Complaint

LEARN MORE

–gw

June 12, 2025

Why Do Some Employers Unlawfully Discriminate?

Why do some employers unlawfully discriminate against their employees? Here’s my point of view.

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Why Employers Might Unlawfully Discriminate Against Their Employees — And Why It Matters

In the modern workplace, anti-discrimination laws have made significant strides in protecting individuals from unfair treatment based on race, gender, age, religion, disability, national origin, and other protected characteristics. Despite this progress, workplace discrimination remains a persistent issue. Understanding why employers might engage in discriminatory practices — even in violation of clear legal standards — is critical for legal professionals, HR personnel, and compliance officers alike.

1. Implicit Bias and Stereotyping

Discrimination in the workplace often stems not from overt prejudice, but from unconscious biases—automatic associations and assumptions that can shape decisions without the decision-maker even realizing it. For instance, a supervisor might instinctively view men as more suitable for leadership roles or assume that older employees struggle with new technology. Though these biases may never be expressed aloud, they can influence important employment outcomes such as hiring, promotions, and disciplinary actions, often disadvantaging individuals in legally protected groups.

Legal Considerations:

Courts are increasingly acknowledging the role of implicit bias in employment discrimination cases, especially where patterns of unequal treatment or adverse impact are evident. Under laws like the Washington Law Against Discrimination (WLAD), evidence of unconscious bias can support claims of unlawful discrimination—even in the absence of direct or intentional misconduct.

2. Cultural “Fit” and the Homogeneity Trap

Hiring for “cultural fit” is a popular concept in many organizations, especially startups and smaller companies. However, this term can become a euphemism for maintaining homogeneity. Employers may, intentionally or not, exclude candidates who don’t mirror the dominant demographics or communication styles of existing teams.

While the desire for team cohesion is understandable, when “fit” becomes a code word for race, age, gender similarity, or other protected class, the legal exposure increases. Courts and agencies like the Washington State Human Rights Commission (WSHRC) and U.S. EEOC scrutinize these practices for violation of associated employment-discrimination laws.

3. Economic Rationalizations

Some employers make decisions based on economic stereotypes — for example, assuming women are more likely to take maternity leave, or older workers will demand higher salaries or retire soon. These assumptions can result in discrimination cloaked in cost-saving rhetoric.

This kind of reasoning may violate laws like the WLAD, Title VII of the Civil Rights Act of 1964 (Title VII), Equal Pay Act*, or ADEA*. Cost alone is not a defense to discriminatory practices.

4. Discriminatory Customer or Client Preferences

Another subtle driver of discrimination is the perceived preference of customers, clients, or even coworkers. For instance, an employer might believe that customers prefer to be served by younger, able-bodied, or white employees — and act accordingly.

Both the WLAD and associated Federal law is clear: employers cannot base employment decisions on customer preferences if those preferences reflect discriminatory bias based on protected class. The WLAD, Title VII, and related statutes do not carve out exceptions for such customer prejudices, no matter how commercially persuasive they might seem.

5. Inadequate Training and Compliance Infrastructure

In some cases, discrimination arises from negligence rather than malice. Employers may lack proper training, or they may fail to implement strong compliance programs that prevent bias from creeping into decision-making. This lack of oversight can result in systematic discrimination that violates state laws — even when no single person intends harm.

The legal lesson is clear: intent is not always required for liability. Under state-based disparate impact theories, a neutral policy or practice that disproportionately harms a protected class can trigger legal consequences, regardless of motive.

6. Combating Discrimination Proactively

For employers, the risk of litigation, reputational damage, and financial penalties should be motivation enough to root out discriminatory practices. For attorneys and compliance professionals, understanding these underlying causes can guide better training, policy design, and internal investigations.

Proactive strategies include but are not limited to:

• Mandatory implicit bias training for hiring managers;
• Structured interviews and standardized evaluations;
• Diversity audits and statistical monitoring;
• Clear, well-enforced anti-discrimination policies.

Conclusion

Discrimination against protected classes is rarely as blatant as it once was — but it is no less real. Whether driven by unconscious bias, flawed business logic, or misplaced priorities, discriminatory practices persist in ways that can expose employers to serious legal risk. Legal professionals must remain vigilant, not only in litigating claims but also in helping organizations recognize and eliminate the subtle forces that sustain inequality.

And for those Washington State employers that fail to heed these warnings: You may find me as opposing counsel in a lawsuit against your organization.

READ OUR RELATED ARTICLES

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

» Title VII of the Civil Rights Act of 1964

» What is WA State’s Law Against Employment Discrimination?

LEARN MORE

–gw