Under Washington State laws, what is the direct-evidence method (hereinafter, “Direct-Evidence Method”) of establishing a prima facie case of employment discrimination? Here’s my point of view.
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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EMPLOYMENT DISCRIMINATION — THE PRIMA FACIE CASE (2 OPTIONS)
In Washington State, “[a] plaintiff can establish a prima facie case [of employment discrimination] by either[:]
[1.] offering direct evidence of an employer’s discriminatory intent, or …
(1) the defendant employer acted with a discriminatory motive and
(2) the discriminatory motivation was a significant or substantial factor in an employment decision.
Id.* at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting, hyperlink, and emphasis added).
THE 2ND ELEMENT: DISCRIMINATORY MOTIVATION WAS SIGNIFICANT/SUBSTANTIAL FACTOR
To satisfy the second element of the Direct-Evidence Method, the plaintiff–employee “must … [establish that] the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id.* at 746 (referencing Kastanis, 122 Wn.2d at 491). This can be done by identifying associated adverse employment actions.
ADVERSE EMPLOYMENT ACTION
“An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id.* (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id.* (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (hyperlink added).
EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE
Washington Courts “generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id.* (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold”)).
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(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our 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.)
“Intentional discrimination is difficult to prove, however, because [d]irect, ‘smoking gun’ evidence of discriminatory animus is rare, since [t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.” Id. (citingMikkelsen*, 189 Wash.2d at 526, 404 P.3d 464 (quoting Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 179, 23 P.3d 440 (2001), abrogated in part by Mikkelsen*, 189 Wash.2d 516, 404 P.3d 464)) (internal quotation marks omitted) (alterations in original).
“Because intentional discrimination is difficult to prove, Washington follows the three-part evidentiary burden-shifting formula set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).” Id. (citingMikkelsen*, 189 Wash.2d at 526, 404 P.3d 464). “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff [has] his [or her] day in court despite the unavailability of direct evidence.” Id. at 1077-78 (citingMikkelsen*, 189 Wash.2d at 526, 404 P.3d 464) (internal quotation marks and citations omitted) (alterations in original).
the mcdonnell douglas burden-shifting framework — three steps
For purposes of wrongful discharge claims, “[t]he McDonnell Douglas burden shifting framework has three steps, or prongs:
First, the plaintiff must make a prima facie case of discrimination by showing that
(4) after her discharge, the position remained open and the employer continued to seek applicants with qualifications similar to the plaintiff.
If the plaintiff establishes a prima facie case, it creates a rebuttable presumption of discrimination.
Second, the burden shifts to the defendant, who must “articulate a legitimate, nondiscriminatory reason for the adverse employment action.”
Third, if 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.
See id. at 1078 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (emphasis, hyperlinks, and paragraph formatting added).
the third STEP — pretext PRONG
In Scrivener v. Clark College*, the Washington State Supreme Court “explained what is required for an employee to satisfy the pretext prong[:]
An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either
(1) that the defendant’s reason is pretextual or
(2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.
An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production. Our case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor.
Litvack, 546 P.3d at 1078 (citing Scrivener v. Clark College*, 181 Wash.2d 439, 446-47, 334 P.3d 541 (2014)) (paragraph formatting added). There are various ways of proving pretext.
proving pretext — the disparate-discipline method
In Washington, “[o]ne test for pretext is whether[:]
(1) an employee outside the protected class[;]
(2) committed acts of comparable seriousness[;]
(3) but was not demoted or similarly disciplined.
Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wash. App. 212, 227, 907 P.2d 1223 (1996); Scrivener*, 181 Wash.2d at 448, 334 P.3d 541 (“employer’s reason ‘was not a motivating factor in employment decisions for other employees in the same circumstances'”)). I call this approach the disparate-discipline method.
Accordinly, under the disparate-discipline method of proving pretext, “[t]he appropriate comparators are employees that are ‘similarly situated‘ to the plaintiff and doing ‘substantially the same work‘ as the plaintiff.” Id. at 1079-80 (citingJohnson, 80 Wash. App. at 227, 907 P.2d 1223; Ellingson v. Spokane Mortg. Co., 19 Wash. App. 48, 54, 573 P.2d 389 (1978)) (emphasis added).
Summary Judgment
“Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation.” Id. at 1078 (citing Mikkelsen*, 189 Wash.2d at 528, 404 P.3d 464) (internal quotation marks omitted) (hyperlinks added). “To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer’s adverse employment action.” Id. (citing Mikkelsen*, 189 Wash.2d at 528, 404 P.3d 464) (internal quotation marks omitted) (hyperlinks added).
Substantial Factor:
“A ‘substantial factor’ means that the protected characteristic was a significant motivating factor bringing about the employer’s decision.” Id. at 1078-79 (citing Scrivener*, 181 Wash.2d at 444, 334 P.3d 541) (internal quotation marks omitted). “The protected characteristic need not be the sole factor in the decision.” Id. at 1079 (citing Scrivener*, 181 Wash.2d at 444, 334 P.3d 541) (internal quotation marks omitted). “A significant motivating factor means that the employment decision was more likely than not motivated by discriminatory reasons.” Id. (citingFell v. Spokane Transit Auth., 128 Wash.2d 618 n.32, 911 P.2d 1319 (1996)) (internal citation and quotation marks omitted).
Plaintiff’s (employee’s) Burden:
“Because an employer may be motivated by both legitimate and illegitimate reasons, an employee need only present evidence sufficient to create a genuine issue of material fact as to whether discrimination was a substantial motivating factor.” Id. (citingMikkelsen*, 189 Wash.2d at 534, 404 P.3d 464). “A plaintiff need not ‘disprove each of the employer’s articulated reasons.'” Id. (citing Mikkelsen*, 189 Wash.2d at 534, 404 P.3d 464) (internal citation omitted).
Circumstantial, Indirect, and Inferential Evidence — opinions & conclusory statements:
“Plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Id. (citing Mikkelsen*, 189 Wash.2d at 526, 404 P.3d 464) (internal quotation marks omitted).
“But an employee must do more than express an opinion or make conclusory statements; the facts must be specific and material.” Id. (citing Crabtree v. Jefferson County Pub. Hosp. Dist. No. 2*, 20 Wash. App. 2d 493, 510, 500 P.3d 203 (2021)). “An employee’s assertion of good performance to contradict the employer’s assertion of poor performance does not give rise to a reasonable inference of discrimination.” Chen v. State*, 86 Wash. App. 183, 191, 937 P.2d 612 (1997).
Conclusion
In conclusion, the McDonnell Douglas burden-shifting framework plays a vital role in advancing wrongful discharge claims under the Washington Law Against Discrimination (WLAD), particularly in cases where direct evidence of discriminatory intent is lacking. By establishing a structured, three-step process, the framework provides a clear path for plaintiffs to make their case, starting with the establishment of a prima facie case of discrimination. If the plaintiff succeeds in making this initial showing, it creates a rebuttable presumption of discrimination, which shifts the burden to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. The final step requires the plaintiff to demonstrate that the employer’s stated reason is a pretext, meaning that discrimination was either the true motivation or a substantial factor in the decision.
The pretext inquiry, as clarified by Washington case law, allows plaintiffs to challenge an employer’s defense by presenting evidence that raises a genuine issue of material fact. Methods such as the disparate-discipline test provide a framework for comparing the plaintiff’s treatment to that of similarly situated employees outside the protected class, thereby helping to uncover discriminatory motives hidden behind seemingly legitimate reasons. Importantly, the burden remains on the plaintiff to prove that discrimination was a substantial factor in the adverse employment action, but they are not required to disprove every reason articulated by the employer.
Ultimately, the McDonnell Douglas framework serves not only as a procedural tool but also as a safeguard for employees, ensuring they have a fair opportunity to seek redress when faced with unjust dismissal. By facilitating a fair and systematic evaluation of discrimination claims, the framework upholds the principles of equality and accountability in the workplace, giving plaintiffs the necessary tools to contest unlawful employment practices and promoting broader compliance with anti-discrimination laws.
If you need help with your employment issue, then consider a consultation with an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
IMPORTANT: 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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CAT’S PAW THEORY OF LIABILITY — SUBORDINATE BIAS LIABILITY
In Washington State, the “cat’s paw” theory of liability is consistent with the law on subordinate bias liability. SeeBoyd v. State*, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015). “Under the cat’s paw theory, the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker.” Id.* at 21 n.1 (citing Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)).
THE GENERAL RULE
The general rule is as follows:
[I]f a supervisor* performs an act motivated by … animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.
Id.* at 20 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (footnote omitted)) (alteration in original) (internal quotation marks omitted) (emphasis and hyperlink added). Note: the term proximate cause is undefined.
PROXIMATE CAUSE
“Under Washington law, in order for the act to be a proximate cause, it must be a substantial factor.” Id.* (citing City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn.App. 333, 356, 325 P.3d 213 (2014) (“a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus was a substantial factor in the decision”)) (internal quotation marks omitted) (emphasis added).
INDEPENDENT INVESTIGATIONS & CAUSATION
Oftentimes, the employer-defendant under a cat’s paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless: “[A]n independent investigation does not necessarily relieve the employer of liability for an adverse employment action.” Id.* (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011)).
If the independent investigation “relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor.” Id.* at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.*
However: “[I]f the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action … then the employer will not be liable.” Id.* at 18 (citing Staub, 131 S.Ct. at 1193) (alteration in original).
ORIGINS OF CAT’S PAW THEORY OF LIABILITY
“The term ‘cat’s paw’ originated in the fable, ‘The Monkey and the Cat,’ by Jean de La Fontaine[:]
As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.
Id.* at 21 n.1 (citing Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)], 51 Washburn L.J. 159, 159 (2011) (footnotes omitted)) (citation alteration in original).
THE CAT & THE MONKEY
“In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey.” Id.* (citing Edward G. Phillips, Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).
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FAQ: What are the elements of Failure to Provide Reasonable Accommodations in WA State?
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What are the elements of Failure to Provide Reasonable Accommodations in WA State?
As an employment attorney in Washington, I often converse with employment discrimination victims that believe their cases are weak, because they lack direct evidence. They’re unaware that using circumstantial evidence to prove employment discrimination is a common litigation practice that can sometimes lead to successful outcomes.
Under the Washington Law Against Discrimination (WLAD), may an employment discrimination victim rely on circumstantial, indirect, and inferential evidence to prove employment discrimination? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNFAIR PRACTICES OF EMPLOYERS
Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:
(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.
[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]
(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.
[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]
(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.
“First, [under the burden-shifting framework,] an employee must make a prima facie case …[.]” Crabtree*, 500 P.3d at 211 (Wash. App. 2021) (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464 (2017)) (hyperlinks added). “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists. Id. at 211-12 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464).
STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON
“Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the … [adverse employment action].” See id. at 212 (citingMikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (hyperlink added). “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, the employer need only show that the employer’s evidence, if taken as true would permit the conclusion that there was a nondiscriminatory reason.” Id. (citing Mikkelsen*, 189 Wash.2d at 533, 404 P.3d 464).
STEP 3 – PRETEXT
“Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a pretext*.” Crabtree*, 500 P.3d at 212(citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (hyperlinks added).
Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).
CONCLUSION
Under the Washington Law Against Discrimination, I believe employment-discrimination plaintiffs may rely on circumstantial, indirect, and inferential evidence to prove employment discrimination. This is primarily because direct evidence of discriminatory intent is rare.
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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FEDERAL LAW
“In the employment context, the WLAD has three federal counterparts:
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 490, 325 P.3d 193 (Wash. 2014) (footnotes omitted) (hyperlinks and paragraph formatting added). However, “[t]he United States Supreme Court has never listed the elements of a prima facie claim for failure to accommodate religious practices.” Id. at 501 (footnote omitted).
FEDERAL CIRCUIT COURTS: A TEST BASED UPON THE DISPARATE IMPACT BURDEN-SHIFTING SCHEME
“Several Courts of Appeals … have adopted a [failure-to-accommodate-religious-practices] test based on the ‘disparate impact’ burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Kumar, 180 Wn.2d at 490 (referencing, e.g.,Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th Cir. 2013); Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012); Equal Emp’t Opportunity Comm’n v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Berry v. Dep’t of Soc. Serv., 447 F.3d 642, 655 (9th Cir. 2006)) (emphasis added).
WA STATE: FAILURE TO ACCOMMODATE RELIGIOUS PRACTICES: THE PRIMA FACIE CASE
In Kumar v. Gate Gourmet, the Washington State Supreme Court applied the above failure-to-accommodate-religious-practices test for the first time. According to that test, “a plaintiff establishes a prima facie claim of failure to accommodate religious practices by showing that[:]
(1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties;
(2) he or she informed the employer of the beliefs and the conflict; and
(3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment.
Id. at 501-02 (citing Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)) (footnote omitted) (emphasis added).
THE 3RD ELEMENT: IMMEDIATE RISK OF ACTUAL FIRING/DEMOTION IS IRRELEVANT
Regarding the third element of the prima facie case: “An employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Id. at 514 n.30 (referencing, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (“employee established an ‘adverse employment action’ for purposes of prima facie religious accommodation claim where employer ‘formally instruct[ed] him not to pray with or proselytize to clients'” ); Equal Emp’t Opportunity Comm’n v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”)) (internal quotation marks omitted).
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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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UNLAWFUL RETALIATION
The Washington Law Against Discrimination, RCW 49.60, “prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734, 753 (Div. 2 2013) (citing RCW 49.60.210).
There are additional protections. The relevant law states as follows:
RCW 49.60.210
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.
(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.
(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.
“Violation of this provision supports a retaliation claim.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).
*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.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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HOSTILE WORK ENVIRONMENT (WA STATE)
Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).
THE PRIMA FACIE CASE (WA STATE)
In Washington, the term “hostile work environment” is synonymous with harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).
-ELEMENT (1): Harassment was unwelcome
“In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (2): The harassment was because of membership in a protected class
“The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.
-ELEMENT (3): The harassment affected the terms or conditions of employment
“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (4): The harassment is imputable to the employer
WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.”
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FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS (WA STATE)
AFFIRMATIVE DUTY TO ACCOMMODATE: Washington Law Against Discrimination (WLAD) “gives employers an affirmative duty to accommodate an employee‘s disability.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 586 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing RCW 49.60.180(2); LaRose v. King County, 8 Wn.App.2d 90, 125, 437 P.3d 701 (2019)) (hyperlinks added).
SCOPE: “A reasonable accommodation must allow the employee to work in the environment and perform the essential functions of her job without substantially limiting symptoms.” Id. (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 777-78, 249 P.3d 1044 (2011)) (internal quotation marks omitted).
MULTIPLE METHODS OF ACCOMMODATION: “Where multiple potential methods of accommodation exist, the employer is entitled to select the appropriate method.” Id. (citing Frisino, 160 Wn.App. at 779).
THE PRIMA FACIE CASE (WA STATE)
“An employee claiming his or her employer failed to accommodate a disability must prove that[:]
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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DISCRIMINATORY DISCHARGE (WA STATE)
“[T]he WLAD prohibits an employer from discharging an employee because of certain protected characteristics, including[, but not limited to age, sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or] a sensory, mental, or physical disability.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing RCW 49.60.180(2)).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.
DISPARATE TREATMENT
Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class.
Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).
A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)). This article solely addresses the direct evidence approach.
DIRECT EVIDENCE TEST
The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:
1. The defendant employer acted with a discriminatory motive; and
2. The discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing Kastanis, 122 Wn.2d at 491).
SIGNIFICANT/SUBSTANTIAL FACTOR
The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.
However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).
A demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).
CONCLUSION
An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.
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