Federal Court Archives — LAW OFFICE OF GREGORY A. WILLIAMS

December 7, 2023December 7, 2023

Unlawful Retaliation and the Prospective Employer

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.)

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status*.

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 directly to our Williams Law Group Blog.)

WLAD ANTIRETALIATION PROVISION

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.

Id. The issue is whether this definition also applies to prospective employers. In other words, does the WLAD prohibit retaliatory discrimination by prospective employers against job applicants? The Washington State Supreme Court addressed this issue in Certification From the U.S. District Court for the Eastern District of WA in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) .

CERTIFICATION FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT–ESD 171

In Cert. From U.S. District Court for Eastern Dist. of WA in Jin Zhu v. North Central Educational Service District-ESD 171, the plaintiff (Zhu) was a job applicant who claimed that “a prospective employer refused to hire [him] in retaliation for prior opposition to discrimination against a different employer[.]” See id. at 506. Zhu subsequently filed suit against the prospective employer in federal district court alleging, inter alia, that it violated WLAD’s antiretaliation statute, RCW 49.60.210(1).

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).

(*NOTE: The link will take the reader directly to our Washington Employment Law Digest Blog.)

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. See Zhu, 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.

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

Definition of Prima Facie Case*

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

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

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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.

November 25, 2023December 7, 2023

Removal of State Civil Actions: Time Limitation

Under federal laws, what is the time limitation for removal of Washington State civil actions to U.S. District Courts? Here’s my point of view.

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WHY DO DEFENDANTS REMOVE LAWSUITS FROM STATE COURT TO FEDERAL COURT?

In my practice, I only represent employees and former employees against their employers based upon violations of state and federal employment discrimination laws. I typically file such lawsuits in Washington State superior courts where the number of jurors required to render a verdict for my plaintiff-clients is less than unanimous. In such circumstances, employer-defendants typically attempt to remove my cases to a U.S. district court for a variety of reasons — one likely being the requirement of a unanimous jury verdict for a plaintiff victory. However, defendant-employers are sometimes oblivious to the time limitation for removal of state civil actions to federal court, and I’ve successfully used the following statue as a “shield” against removal under similar circumstances.

FEDERAL COURT: TIME LIMITATION FOR REMOVAL OF CIVIL ACTIONS

The relevant statue is 28 U.S.C. § 1446 (Procedure for removal of civil actions), and it states as follows:

(a) Generally.—

A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; Generally.—

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446 (emphasis and hyperlinks added).

CONCLUSION

A state-court movant must file a notice of removal of a civil action/proceeding in U.S. district court within 30 days after receipt by the defendant of a copy of the initial pleading; or within 30 days after service of summons upon defendant (if such initial pleading has been filed in court and is not required to be served upon defendant — whichever period is shorter).

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December 1, 2022December 1, 2022

EEOC: The Notice of Right to Sue

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.

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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

The EEOC is a federal agency “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. EEOC Website, https://www.eeoc.gov/overview (last visited 11/29/22).

eeoc functions

“The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.” Id. Accordingly, the EEOC has authority to perform several functions:

(1) To investigate charges of discrimination against employers who are covered by the law.

(2) To prevent discrimination before it occurs through outreach, education, and technical assistance programs.

(3) To provide leadership and guidance to federal agencies on all aspects of the federal government’s equal employment opportunity program.

Id. As part of its investigative function, the EEOC is responsible for issuing the Notice of Right to Sue.

THE 90-DAY NOTICE OF RIGHT TO SUE

Charge Filing

The claimant must first file a charge with the EEOC if the claimant plans “to file a lawsuit under federal law alleging discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information, or retaliation, … (except for lawsuits under the Equal Pay Act, see below).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). I will explain certain exceptions later in this article.

Notice of Right to Sue

The EEOC Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See id. The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id.

90-Day Limitation

When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. Id. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Federal Government Employees and Applicants

This article does not address federal government employees or applicants. “The procedures for filing a complaint of discrimination against a federal government agency differ from those for filing a charge against a private or public employer.” Id. To learn more, visit the EEOC Website page: Overview Of Federal Sector EEO Complaint Process.

EXCEPTIONS WHEN FILING A LAWSUIT

Age Discrimination Lawsuits (ADEA)

“If you plan to file an age discrimination lawsuit, you must have filed a charge but you don’t need a Notice of Right to Sue to file a lawsuit in court. You can file a lawsuit in court any time after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Equal Pay Lawsuits (EPA)

“If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right to Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the pay discrimination took place (3 years if the discrimination was willful).” Id.

Filing a Lawsuit Before Investigation is Completed

“If you want to file a lawsuit before … [the EEOC has] finished … [their] investigation, you can request a Notice of Right to Sue.” Id.

HOW TO REQUEST A NOTICE OF RIGHT TO SUE

There are a few ways to request a Notice of Right to Sue depending on your circumstances. “If you have registered in EEOC’s Public Portal, you can submit your request by logging in to your charge account and uploading your request. If you don’t have an online charge account, send your request for a Notice of Right to Sue to the EEOC office responsible for investigating your charge and include your EEOC charge number and the names of the parties.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

In any event, the EEOC has time limitations in fulfilling requests for Notices of Right to Sue.

Before 180 Days Have Passed

Before 180 days have passed from the date the claimant’s charge was filed, the EEOC will give the claimant the notice only if the EEOC will be unable to complete their investigation within 180 days. See id. According to the EEOC, “If you want the EEOC to continue investigating your charge, don’t request a Notice of Right to Sue.” Id.

After 180 Days Have Passed

After 180 days have passed from the date the claimant’s charge was filed, the EEOC is required by law to give the claimant the notice upon their request. See id.

CONCLUSION

The EEOCs Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id. When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” Id.

The reader is strongly encouraged to seek legal counsel when first considering claims of employment discrimination.

We invite you to read more of our blog articles concerning the EEOC:

» Fair Employment Practice Agencies

» The Intersection of WSHRC and EEOC*

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

need help?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our office handles EEOC Notices of Right to Sue. 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.

August 2, 2022February 2, 2023

Unlawful Employment Agency Practices (Title VII)

Under Title VII of the Civil Rights Act of 1964, what are unlawful employment agency practices? Here’s my point of view.

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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 link will take the reader to an external website: Cornell Law School Legal Information Institute.)

TITLE VII ENFORCEMENT

“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).

Learn more about filing a charge of discrimination with the EEOC by visiting their official website.

Rendering a Verdict: WA State Versus Federal Court

Under both Washington State and federal statutes and court rules, what is the difference in number of jurors required to render a jury verdict in a civil trial? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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WASHINGTON STATE

In Washington, only five jurors in a jury of six, or ten jurors in a jury of twelve, are required to render a verdict in a civil trial. RCW 4.44.380. The relevant text is as follows:

In all trials by juries of six in the superior court, except criminal trials, when five of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the presiding juror, and the verdict shall stand as the verdict of the whole jury, and have all the force and effect of a verdict agreed to by six jurors. In cases where the jury is twelve in number, a verdict reached by ten shall have the same force and effect as described above, and the same procedures shall be followed.

Id. However, pursuant to the Superior Court Civil Rules, “The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” CR 48.

U.S. DISTRICT COURT

Alternatively, in the United States District Court, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members; and a jury must begin with at least six and no more than twelve members. FRCP 48. Each juror must partake in the verdict unless they are excused pursuant to Rule 47(c). Id.

CONCLUSION

A significant difference between federal and Washington State court systems appears to be that, unless the parties stipulate otherwise, Washington Superior Courts generally require a specific majority of jurors to render a verdict whereas the United States District Court requires unanimity.

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June 28, 2021June 30, 2021

FRCP 35 Exams Based on Emotional Distress (9th Circuit)

Under federal law, does a plaintiff’s claim of emotional distress place his/her mental condition in controversy for purposes of FRCP 35 exams? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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THE GENERAL RULE

If a plaintiff objects to a FRCP 35 exam, the court has discretion to enter an order compelling examination only if the employer can establish:

(A) that a physical or mental condition of the person sought to be examined is “in controversy,” and

(B) that “good cause” exists.

See Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 667 (2001) (internal citations and quotation marks omitted).

Courts in jurisdictions throughout the country are divided on the issue as to whether a claim of emotional distress places the plaintiff’s mental condition at issue (in controversy). But the modern trend in courts is to increasingly find that it does not.

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS: 9TH CIRCUIT

The general position of courts in the 9th Circuit appears to be that a claim for emotional distress damages, by itself, is not sufficient to place the plaintiff’s mental condition in controversy for purposes of FRCP 35(a). Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D.Cal. 1998) (referencing, Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.Cal.1995) (thoroughly surveying the relevant case law, distinguishing several unconventional cases including Smedley v. Capps, Staples, Ward, hastings & Dodson, 820 F.Supp. 1227 (N.D.Cal.1993), and determining not to set Smedly, inter alia, as precedent)) (internal quotation marks omitted).

Instead, the trend for 9th Circuit courts is as follows:

[T]he movant must also demonstrate that (1) the plaintiff has pled a cause of action for intentional or negligent infliction of emotional distress; (2) the plaintiff has alleged a specific mental or psychiatric injury; (3) the plaintiff has pled a claim for unusually severe emotional distress; (4) the plaintiff plans to offer expert testimony to support a claim of emotional distress and/or (5) the plaintiff has conceded that his or her mental condition is ” in controversy” for purposes of FRCP 35(a).

Id. (internal citation omitted).

These courts have further found that a Plaintiff merely seeking damages in excess of a million dollars for humiliation, mental anguish, and emotional distress does not justify a request for a mental examination. Turner v. Imperial Stores, 161 F.R.D. at 97.

GARDEN VARIETY EMOTIONAL DISTRESS

Thus, for example, a plaintiff seeking “garden variety emotional distress” damages in excess of one million dollars, pursuant to claims solely under the Civil Rights Act of 1964, may argue that he/she is not subject to FRCP 35 examination, because his/her mental condition is not in controversy (provided he/she does not satisfy the additional above mentioned requirements set forth in Ford v. Contra Costa County, 179 F.R.D. at 580 (N.D.Cal. 1998), supra); but whoever asserts this type argument should be prepared to fight it out in Court — the defendant(s) will likely file a motion.

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June 26, 2021June 30, 2021

National Bank Act Preemption & Title VII

Within the 9th Circuit, does the National Bank Act preempt Title VII of the Civil Rights Act of 1964? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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THE NATIONAL BANK ACT

The National Bank Act provides, inter alia, that a national bank shall have the power “[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” 12 U.S.C. § 24(Fifth) (emphasis added).

This is also known as the “at-pleasure provision” of § 24(Fifth) that is part of the scheme of federal laws governing the duties and powers of federally chartered banks. Thus, as a threshold matter, a federally chartered bank seeking to utilize the at-pleasure provision to preempt an employee’s claims for relief under other laws must first show that the employee was (1) appointed by the board of directors, (2) terminated by the board of directors, and (3) an officer.

THE PURPOSE

The original congressional intent behind the at-pleasure provision of the National Bank Act was to ensure the financial stability of the banking institutions by affording them the means to discharge employees who were felt to compromise an institution’s integrity. Kroske v. United States Bank Corp., 432 F.3d 976, 983-84 (9th Cir. 2005) (internal citations and quotation marks omitted).

Accordingly, courts uniformly have concluded that a bank’s power to dismiss at pleasure is analogous to dismiss at will, implying the absence of a contractual relationship between employer and employee. Id. at 984 (internal citations and quotation marks omitted).

THE CIVIL RIGHTS ACT OF 1964

On the other hand, Title VII of the Civil Rights Act of 1964 makes it unlawful for certain employers (e.g., a bank) to discriminate against an individual on the basis of race, color, religion, national origin, or sex; additional organizational forms are within purview of Title VII, but they are beyond the scope of this article.

Title VII also makes it illegal to retaliate against an individual because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

THE INTERSECTION

The intersection of the at-pleasure provision and Title VII presents a potential conflict of laws; and the 9th Circuit, in Kroske v. US Bank Corp, resolved the conflict in favor of bank officers both hired and fired by the board of directors. See Kroske v. United States Bank Corp., 432 F.3d 976 (9th Cir. 2005).

In Kroske, Kathy Kroske was a bank officer that was both hired and fired by the board of directors, and Kroske subsequently filed suit against the bank alleging age discrimination under Washington Law Against Discrimination (WLAD). Accordingly, one of the issues the court addressed was whether the at-pleasure provision preempted her age discrimination claim under WLAD?

The court, in reaching its conclusion (the analysis is beyond the scope of this article), found, inter alia, that federal anti-discrimination statutes were relevant to its inquiry because federally chartered banks are not exempt from liability under those laws. Id. at 986 (see Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) (holding that members of a class of black employees of a Federal Reserve Bank could maintain separate actions against the bank under Title VII); see also Enforcement Guidance on Coverage of Federal Reserve Banks, EEOC Decision No. N-915-002 (1993) (concluding that Federal Reserve Banks are not executive agencies and are covered by Title VII, the ADEA, the Equal Pay Act (“EPA”), and the Americans with Disabilities Act (“ADA”) as private employers)).

The court went on to find that courts that have addressed the issue consistently have held that banks are subject to liability for discrimination under federal anti-discrimination laws irrespective of the bank’s right to dismiss an officer (or employee) at pleasure. Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, it would appear that the National Bank Act does not preempt Title VII of the Civil Rights Act of 1964.

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June 26, 2021December 8, 2021

Section 1981 & Non-Employment Contracts (Ninth Circuit)

Under 42 U.S.C. § 1981, Equal Rights Under The Law, are non-employment contracts protected in the Ninth Circuit? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer and Terms of Use before proceeding.)

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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

The problem is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).

The Plaintiff-Appellant (“Lindsey” dba “E-Jays Panache Images”) was a business that presented fashion shows; all representatives were African-American, and audience members were primarily African-American as well. The Defendant-Appellee (“SLT Los Angeles” or “the Westin”) owned and operated, inter alia, a Grand Ballroom in their subject Westin Hotel.

Lindsey contracted for use of the Grand Ballroom for an event, but on the day of the event, there was an apparent mix up by the Westin. He essentially alleged that they were denied the Grand Ballroom in favor of a Bar Mitzvah because of their race.

Lindsey sued in U.S. District Court for, inter alia, violations of 42 U.S.C. § 1981, and “the district court concluded that Appellant … [Lindsey] had failed to prove that the Westin’s actions, which had prevented Panache from hosting its annual Mother’s Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981.” Id. at 1141.

Lindsey appealed to the Ninth Circuit, and it reversed the district court and remanded for trial. The Ninth Circuit agreed with the decisions of other circuits that “the first three elements of the McDonnell Douglas test are easily adapted to claims arising under section 1981 outside of an employment context.” Id.

Accordingly, “the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)) (emphasis added).

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

However, the court identified that “the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court … [in Lindsey], requires that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.” Id. (emphasis added).

The court then pointed out that “the Seventh Circuit adopts this requirement … but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers.” Id. (internal citations omitted).

The 9th Circuit reasoned that “the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others.” Id. (internal citations omitted). Thus, “the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.” Id. (internal citations and quotation marks omitted).

Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context. The court found that the plaintiff in Lindsey offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, and, thus, it applied all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed.

CONCLUSION

It appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981:

1) membership in a protected class;

2) an attempt to contract for certain services;

3) denial of the right to contract for those services; and (possibly);

4) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

See Lindsey, 447 F.3d at 1145. When the plaintiff offers clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, the court will likely apply all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed. See id.

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June 26, 2021June 30, 2021

The Diversity Jurisdiction Gambit

Under 28 U.S.C. § 1332, is a plaintiff that files an employment discrimination case originally in Federal court, based on diversity jurisdiction, entitled to costs when the court finally adjudges that Plaintiff is entitled to recover less than the sum or value of $75,000? Here’s my point of view.

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DIVERSITY & SUPPLEMENTAL JURISDICTION

As an initial matter, United States District Courts have original jurisdiction (Diversity Jurisdiction) of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States; there are additional provisions. See 28 U.S.C. § 1332(a).

Further, in any civil action of which the district courts have original jurisdiction, the district courts shall have Supplemental Jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution; but, there are exceptions. See 28 U.S.C. § 1367(a)-(b).

In Washington State, employment discrimination cases typically involve these two jurisdictional bases; Plaintiffs often combine Title VII claims with Washington Law Against Discrimination claims and associated state tort claims. Employer-defendants in such cases are often incorporated out of state. This article addresses the scenario wherein the plaintiff elects to initially file suit in federal court based on similar circumstances.

THE DIVERSITY JURISDICTION GAMBIT

There may be risks for the discrimination plaintiff that initially files in Federal court. The relevant law is 28 U.S.C. § 1332(b), and it states as follows:

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

Id. According to this statute, a plaintiff may be denied costs and/or required to pay costs in the event of a favorable verdict that is below $75,000.

CONCLUSION

Subject to exceptions, a plaintiff that files an employment discrimination case originally in Federal court based on diversity jurisdiction must, arguably, recover $75,000 or more (without regard to setoff and counterclaim; and exclusive of interest and costs), or the court may deny costs authorized by statute to the plaintiff. Moreover, the court may also impose costs on the plaintiff.

But this law may be superseded by an express provision in a statute of the United States. In any event, this is a gambit that some plaintiffs may not want to take – proceed with caution.

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January 23, 2021March 9, 2023

Definition of Industry Affecting Commerce (Title VII)

Under Title VII of the Civil Rights Act of 1964, what is the definition of “industry affecting commerce”? Here’s my point of view.

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Discrimination & protected classes

Retaliation

Reasonable Accommodations

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:

U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).

TITLE VII DEFINITION OF “INDUSTRY AFFECTING COMMERCE”

Title VII defines “industry affecting commerce” as follows:

…

(h) The term “industry affecting commerce” means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.*], and further includes any governmental industry, business, or activity.

42 U.S.C. § 2000e(h)* (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.

(*The link will take the reader to an external website: Cornell Law School Legal Information Institute.)

TITLE VII ENFORCEMENT

Learn more about filing a charge of discrimination with the EEOC by visiting their official website.

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

WLAD ANTIRETALIATION PROVISION

WLAD DEFINITION OF EMPLOYER

CERTIFICATION FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT–ESD 171

DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER

CONCLUSION

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WHY DO DEFENDANTS REMOVE LAWSUITS FROM STATE COURT TO FEDERAL COURT?

FEDERAL COURT: TIME LIMITATION FOR REMOVAL OF CIVIL ACTIONS

CONCLUSION

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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

eeoc functions

THE 90-DAY NOTICE OF RIGHT TO SUE

Charge Filing

Notice of Right to Sue

90-Day Limitation

Federal Government Employees and Applicants

EXCEPTIONS WHEN FILING A LAWSUIT

Age Discrimination Lawsuits (ADEA)

Equal Pay Lawsuits (EPA)

Filing a Lawsuit Before Investigation is Completed

HOW TO REQUEST A NOTICE OF RIGHT TO SUE

Before 180 Days Have Passed

After 180 Days Have Passed

CONCLUSION

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Discrimination & protected classes

Retaliation

Reasonable Accommodations

SCOPE OF TITLE VII

UNLAWFUL EMPLOYMENT AGENCY PRACTICES

TITLE VII ENFORCEMENT

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WASHINGTON STATE

U.S. DISTRICT COURT

CONCLUSION

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THE GENERAL RULE

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS: 9TH CIRCUIT

GARDEN VARIETY EMOTIONAL DISTRESS

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THE NATIONAL BANK ACT

THE PURPOSE

THE CIVIL RIGHTS ACT OF 1964

THE INTERSECTION

CONCLUSION

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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

CONCLUSION

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DIVERSITY & SUPPLEMENTAL JURISDICTION

THE DIVERSITY JURISDICTION GAMBIT

CONCLUSION

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Discrimination & protected classes

Retaliation

Reasonable Accommodations

SCOPE OF TITLE VII

TITLE VII DEFINITION OF “INDUSTRY AFFECTING COMMERCE”

TITLE VII ENFORCEMENT

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