Category: Harassment

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

August 11, 2022August 18, 2022

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Hostile Work Environment: The Unwelcome Element

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.

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HOSTILE WORK ENVIRONMENT (HARASSMENT): THE PRIMA FACIE CASE

(1) the harassment was unwelcome,

(2) the harassment was because [plaintiff was a member of a protected class],

(3) the harassment affected the terms or conditions of employment, and

(4) the harassment is imputable to the employer**.

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.

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Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

June 16, 2022August 18, 2022

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Sexual Harassment in the Workplace (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does an employee establish a claim of sexual harassment in the workplace? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): SEXUAL HARASSMENT IN THE WORKPLACE

“To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]”

(1) the harassment was unwelcome;

(2) the harassment was because of sex;

(3) the harassment affected the terms or conditions of employment; and

(4) the harassment is imputed to the employer.

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406-07 (Wash. 1985) (footnote omitted) (hyperlinks and paragraph formatting added). I will discuss each element in turn.

ELEMENT #1 — THE HARASSMENT WAS UNWELCOME

Under the first element, the employee must prove that the harassment was unwelcome. Thus, “[i]n order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.

ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX

The second element of a claim of sexual harassment in the workplace requires the employee show that the harassment was because of sex/gender. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

ELEMENT #3 — THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT

Pursuant to the third element, the employee must prove that the sexual harassment affected the terms or conditions of employment. “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: Washington State courts typically look at the totality of the circumstances to evaluate this element. “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07.

ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER

The final element requires the employee to show the harassment is imputable to the employer; this will depend on the classification of the harassing individual.

(a) Where Owner, Manager, Partner, or Corporate Officer Harasses

“Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

(b) Where Supervisors or Co-Workers Harass

“To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. (paragraph formatting and emphasis added).

HOW THE EMPLOYER MAY AVOID LIABILITY

Under WLAD, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

WLAD REMEDIES

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

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Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

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May 26, 2022August 18, 2022

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Hostile Work Environment: Terms or Conditions of Employment

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish the third element of a prima facie case for hostile work environment (i.e., harassment affected the terms or conditions of employment)? Here’s my point of view.

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HOSTILE WORK ENVIRONMENT (WA STATE): THE PRIMA FACIE CASE

“To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:

(1) the harassment was unwelcome,

(2) the harassment was because [plaintiff was a member of a protected class],

(3) the harassment affected the terms or conditions of employment, and

(4) the harassment is imputable to the employer.

Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).

ELEMENT 3: TERMS OR CONDITIONS OF EMPLOYMENT

“The third element requires that the harassment be sufficiently pervasive as to alter the conditions of employment and create an abusive working environment.” Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008) (citing Glasgow v. Georgia-Pac. Corp., 103 Wash.2d 401, 406, 693 P.2d 708 (1985)).

Totality of the Circumstances Test

“To determine whether … conduct was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, courts … look at the totality of the circumstances.” Id. (citing Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 296, 57 P.3d 280 (2002)).

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

The Washington State Court of Appeals, Division 3, applied the Totality-of-the-Circumstances Test in Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008).

Therein:

» … Davis[, an African-American man,] worked for West One Automotive Group (West One) from February 2005 until July 2005.

…

» During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace. [For example:]

[1] On one occasion, West One manager and Mr. Davis’s supervisor … asked Mr. Davis if he knew “why blacks have a day off on Martin Luther King Day?” When Mr. Davis said he did not know, … [the supervisor] responded, “Because they shot and killed his black a[##].” Mr. Davis told … [the supervisor] the comment was inappropriate and not to make such a comment again.

[2] Another time, … [Davis’s supervisor] stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” Mr. Davis was offended, and told … [the supervisor] so.

[3] A third incident involved … [Davis’s supervisor] walking by Mr. Davis’s desk, kicking it and remarking, “What’s up, bitc[#].” Mr. Davis was offended, regarding “bitc[#]” as a derogatory term some African American men use to refer to each other. Mr. Davis again told … [his supervisor] he was offended.

…

[4] On an occasion when Mr. Davis had customers in the finance office and his telephone rang, … [a fellow sales employee] stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked Mr. Klein to refer to him by name.…

» After … [Mr. Davis] was terminated, he brought this action under Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW, alleging hostile work environment, disparate treatment and retaliatory discharge.

» The trial court granted West One’s motion for summary judgment dismissal.

» Mr. Davis appeal[ed to the Washington State Court of Appeals, Division 3].

Id. at 452-54 (internal citations omitted) (paragraph formatting, carets, and hyperlinks added).

THE ANALYSIS: Hostile Work Environment: Element #3 (i.e., harassment affected the terms or conditions of employment):

In this case, the Court (Division 3) initially determined that “[w]hether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id. at 457. Thereafter, the Court found facts reflecting that the harassment was sufficiently pervasive as to alter the conditions of employment and create an abusive working environment, as follows:

» “Mr. Davis asserts he was humiliated by these comments. He claims emotional distress.” Id.

» “The record shows Mr. Davis was often late and absent from work.” Id.

» “There was friction between him and other employees.” Id.

» “When he called in ill a few days before his termination, Mr. Davis testified that he was ‘[p]robably mentally sick, drained.'” Id. at 457-58 (alteration in original).

Based upon the foregoing, the Court concluded “[a]n inference could be drawn that this was the result of the hostile work environment.” Id. at 458.

TOTALITY-OF-THE-CIRCUMSTANCES

Next, the Court applied the Totality-of-the-Circumstances Test and concluded as follows: “Looking at all the evidence in the light most favorable to Mr. Davis, as required, we conclude he had raised a question of fact with regard to the third element of this claim.” Id. Accordingly, the Court held: “Given the numerous factual issues surrounding Mr. Davis’s hostile work environment claim, we reverse the superior court’s order granting summary judgment dismissal.” Id.

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Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

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February 24, 2022March 4, 2022

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Employer Liability for Nonemployee Harassment

Under the Washington Law Against Discrimination (WLAD), can an employer be held liable for nonemployee harassment? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

EMPLOYMENT

In Washington State, “[t]he right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, 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 is recognized as and declared to be a civil right. This right shall include, but not be limited to … [t]he right to obtain and hold employment without discrimination[.]” RCW 49.60.030(1)(a).

HOSTILE WORK ENVIRONMENT (HARASSMENT)

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant hostile-work-environment (harassment) law states as follows:

It is an unfair practice for any employer:

…

(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[.]

RCW 49.60.180(3). “Under RCW 49.60.030(2), a person discriminated against in violation of the WLAD may bring a civil action.” Larose v. King Cnty., 8 Wash.App.2d 90, 104, 437 P.3d 701 (Wash.App. 2019) (hyperlink added).

THE PRIMA FACIE CASE

“To establish a prima facie claim of a hostile work environment the plaintiff must show that:

(1) the harassment was unwelcome,

(2) the harassment was because of … [membership in a protected class],

(3) the harassment affected the terms and conditions of employment, and

(4) the harassment is imputable to the employer.

See id. (citing Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004)) (hyperlinks and paragraph formatting added).

THE FOURTH ELEMENT (IMPUTABLE TO THE EMPLOYER)

When it comes to nonemployee harassment, the issue is whether the harassment can be imputed to the employer. “[H]arassment will be imputed to the employer if an owner, manager, partner or corporate officer personally participates.” Larose, 8 Wash.App.2d at 105 (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985)) (internal quotation marks omitted). “An employer will be responsible for harassment by the plaintiff’s supervisors or coworkers if the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” Id. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

“A plaintiff can establish knowledge and failure to take adequate corrective action by showing (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.” Id. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

EMPLOYER LIABILITY FOR NONEMPLOYEE HARASSMENT

In 2019, the Court of Appeals of Washington, Division 2, adopted the federal rule and concluded “that a nonemployee’s harassment of an employee in the workplace will be imputed to an employer if the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. at 111, (internal citations omitted).

CONCLUSION

Under the Washington Law Against Discrimination, RCW 49.60, “an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace[ ][,]” under certain circumstances.

Top 3 Employment Discrimination Laws

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.

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

42 U.S.C. § 1981.

#2 — TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

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.”

See id.

#1 — THE WASHINGTON LAW AGAINST DISCRIMINATION

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 or the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status. See RCW 49.60.

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.

WLAD is a broad and powerful remedial statue that was originally enacted in 1949 as an employment discrimination law. See Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002) (internal citations omitted); Laws of 1949, ch. 183. Remarkably, Washington State enacted the WLAD 15 years before Title VII of the Civil Rights Act of 1964.

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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.

–gw

October 22, 2021August 18, 2022

Disability-Based Hostile Work Environment

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.

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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

(5) that it was imputable to the employer.

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) at 45.

SECOND ELEMENT (UNWELCOME)

To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

THIRD ELEMENT (BECAUSE OF DISABILITY)

To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration in original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT)

To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)).

“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration in original).

FIFTH ELEMENT (IMPUTABLE TO EMPLOYER)

To impute harassment to an employer, “the jury must find either that[:]

(1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that

(2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.”

Id. at 47 (internal citation and quotation marks omitted) (second alteration in original) (paragraph formatting added).

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The Prima Facie Case: Hostile Work Environment

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for hostile work environment (also known as harassment)? Here’s my point of view.

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HOSTILE WORK ENVIRONMENT (WA STATE)

Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).

THE PRIMA FACIE CASE (WA STATE)

In Washington, the term “hostile work environment” is synonymous with harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:

(1) the harassment was unwelcome,

(2) the harassment was because [plaintiff was a member of a protected class],

(3) the harassment affected the terms or conditions of employment, and

(4) the harassment is imputable to the employer.

Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).

-ELEMENT (1): Harassment was unwelcome

“In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow, 103 Wn.2d at 406.

-ELEMENT (2): The harassment was because of membership in a protected class

“The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.

-ELEMENT (3): The harassment affected the terms or conditions of employment

“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.

-ELEMENT (4): The harassment is imputable to the employer

WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.”

Id. (emphasis and paragraph formatting added).

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Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

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June 29, 2021July 21, 2022

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WLAD: Disparate Treatment via Hostile Work Environment

Under the Washington Law Against Discrimination, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment when using the direct evidence approach? 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 LAW AGAINST DISCRIMINATION

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; 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.

DISPARATE TREATMENT

Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class.

Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)). This article solely addresses the direct evidence approach.

DIRECT EVIDENCE TEST

The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:

1. The defendant employer acted with a discriminatory motive; and

2. The discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491).

SIGNIFICANT/SUBSTANTIAL FACTOR

The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.

However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

A demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

CONCLUSION

An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.

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

» WLAD: Disparate Treatment via Hostile Work Environment

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

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June 28, 2021September 24, 2021

Top 3 Employment Discrimination Theories

Under the Washington Law Against Discrimination (WLAD), there are several common employment-discrimination theories that plaintiffs tend to litigate. Here are my top 3 employment discrimination theories under WLAD:

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Some links in this article take the reader to 3rd party websites including our second website: Williams Law Group, PS. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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#3 – DISPARATE TREATMENT

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.

Disparate treatment occurs when an employer treats some people less favorably than others because of membership in a protected class. See Alonso v. Qwest Communications Co., 178 Wn.App 734, 744, 315 P.3d 610 (Div. 2 2013) (internal citations omitted).

“To establish a prima facie case, the plaintiff must show that [his/her] employer simply treats some people less favorably than others because of their protected class.” Id. (internal citations omitted) (hyperlink added).

#2 – HOSTILE WORK ENVIRONMENT

Hostile work environment is also known “Harassment,” and it’s actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. See id. 749 (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

In order to establish a prima facie hostile work environment claim, the plaintiff must alleged facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)).

#3 – UNLAWFUL RETALIATION

The Washington Law Against Discrimination also prohibits retaliation against a party asserting a claim based on a perceived violation of his/her civil rights or participating in an investigation into alleged workplace discrimination. Id. at 753 (citing RCW 49.60.210).

To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action. Id. at 753-54 (internal citation omitted).

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

–gw

June 28, 2021August 18, 2022

Top 3 Hostile Work Environment Issues

Under the Washington Law Against Discrimination (WLAD), hostile work environment (also known as “harassment”) is a form of unlawful employment 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. 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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WLAD: HOSTILE WORK ENVIRONMENT

Generally, to establish a claim of hostile work environment, the plaintiff must establish the following: the harassment was unwelcome; the harassment was because of membership in a protected class; the harassment affected the terms and conditions or employment; and the harassment can be imputed to the employer.

Here are my top 3 hostile work environment issues under the WLAD:

#1 – The Harassment was Unwelcome & Because of Protected Class

In order to establish harassment, “the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406 (Wash. 1985).

Moreover, the harassment must be on account of the plaintiff’s membership in one or more protected classes. See id. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had not been in” the protected class? See id.

#2 – The Harassment Affected Terms or Conditions of Employment

“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. at 406-07. To be actionable, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

#3 – The Harassment is Imputed to Employer

Harassment is imputed to the employer where there is sufficient proof that an owner, manager, partner or corporate officer personally participates in the harassment. Id. at 407.

Otherwise, “to hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” Id.

READ OUR RELATED ARTICLES

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment