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?
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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DUTY TO PROVIDE REASONABLE ACCOMMODATIONS (EMPLOYERS)
When an employer’s accommodation is ineffective, the employee’s corresponding duty to communicate mandates: “If the employee does not communicate to the employer that an accommodation was not effective, he or she cannot maintain a failure to accommodate claim.” Id. at 587 (internal citation omitted) (emphasis and hyperlinks added). The basis for this duty is that “an employer must be able to ascertain whether its efforts at accommodation have been effective, and therefore an employee has a duty to communicate to the employer whether the accommodation was effective.” Id. at 586-87 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 783, 249 P.3d 1044 (2011)) (hyperlinks added).
EXAMPLE: MACKEY v. HOME DEPOT USA, INC.
In Mackey v. Home Depot USA, Inc., “Mackey began working at Home Depot[] … in 2006.” Id. at 564. “During her employment, Mackey suffered from depression, posttraumatic stress disorder (PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions.” Id.
home depot’s DUTY TO ACCOMMODATE (EMPLOYER)
“Home Depot accommodated Mackey’s degenerative disc disease by allowing [her] … to have other employees do any required lifting.” Id. at 586.
mackey’s FAILURE TO ACCOMMODATE CLAIM
“Home Depot [eventually] terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders.” Id. at 563. “Mackey asserted claims for[, inter alia,] failure to reasonably accommodate her physical disability.” Id. “Mackey argue[d] that [Home Depot’s disability] … accommodation was unreasonable because it required her to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Id.
mackey’s DUTY TO COMMUNICATE (EMPLOYEE)
The employer defended by asserting, “Mackey failed to notify Home Depot that the [disability] accommodation it provided to her was insufficient or unreasonable.” Id. at 586. The Court also noted: “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate.” Id. at 587.
THE COURT’S HOLDING
The Washington State Court of Appeals held, “[T]he trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.” Id. at 564.
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.
Actions limited to three years. Within three years:
* * *
(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;
Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).
“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).
WARNING
It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.
Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.
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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
As an employment attorney in Washington State, I often litigate claims on behalf of employee-plaintiffs based on several common employment discrimination laws. Here are the top 3 employment discrimination laws that I litigate in Washington State . . .
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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#3 — THE CIVIL RIGHTS ACT OF 1866 (§ 1981)
The Civil Rights Act of 1866 (Section 1981) is a federal law that prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). And the employment-at-will relationship is a contract for Section 1981 purposes.
Section 1981 is also known as “Equal rights under the law” and it states as follows:
(a) STATEMENT OF EQUAL RIGHTS
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “MAKE AND ENFORCE CONTRACTS” DEFINED
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) PROTECTION AGAINST IMPAIRMENT
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) “makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex[;] … makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit[;] … and requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.” U.S. EEOC Website (emphasis added).
Two other federal anti-discrimination laws, inter alia, broaden the protected classes, as follows:
(1) Age Discrimination In Employment Act (ADEA) which protects people who are 40 or older from both discrimination on account of age and unlawful retaliation against a person “because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit”; and
(2) Americans with Disabilities Act (ADA) that prohibits discrimination and unlawful retaliation against a qualified person with a disability. The ADA also “makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.” Further, the ADA requires that “employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.”
It is also an unfair practice for an employer to retaliate against an employee, because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit. See id.
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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FEDERAL LAW
“In the employment context, the WLAD has three federal counterparts:
Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 490, 325 P.3d 193 (Wash. 2014) (footnotes omitted) (hyperlinks and paragraph formatting added). However, “[t]he United States Supreme Court has never listed the elements of a prima facie claim for failure to accommodate religious practices.” Id. at 501 (footnote omitted).
FEDERAL CIRCUIT COURTS: A TEST BASED UPON THE DISPARATE IMPACT BURDEN-SHIFTING SCHEME
“Several Courts of Appeals … have adopted a [failure-to-accommodate-religious-practices] test based on the ‘disparate impact’ burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Kumar, 180 Wn.2d at 490 (referencing, e.g.,Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th Cir. 2013); Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012); Equal Emp’t Opportunity Comm’n v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Berry v. Dep’t of Soc. Serv., 447 F.3d 642, 655 (9th Cir. 2006)) (emphasis added).
WA STATE: FAILURE TO ACCOMMODATE RELIGIOUS PRACTICES: THE PRIMA FACIE CASE
In Kumar v. Gate Gourmet, the Washington State Supreme Court applied the above failure-to-accommodate-religious-practices test for the first time. According to that test, “a plaintiff establishes a prima facie claim of failure to accommodate religious practices by showing that[:]
(1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties;
(2) he or she informed the employer of the beliefs and the conflict; and
(3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment.
Id. at 501-02 (citing Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)) (footnote omitted) (emphasis added).
THE 3RD ELEMENT: IMMEDIATE RISK OF ACTUAL FIRING/DEMOTION IS IRRELEVANT
Regarding the third element of the prima facie case: “An employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Id. at 514 n.30 (referencing, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (“employee established an ‘adverse employment action’ for purposes of prima facie religious accommodation claim where employer ‘formally instruct[ed] him not to pray with or proselytize to clients'” ); Equal Emp’t Opportunity Comm’n v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”)) (internal quotation marks omitted).
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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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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[:]
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.
In Washington State, employees may seek recourse for employment discrimination through federal, state, and local governmental agencies. Here’s my countdown of the top 3 employment discrimination agencies in the state of Washington (based on my point of view as an employment discrimination attorney):
(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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#3 — MUNICIPAL CIVIL RIGHTS DEPARTMENTS
Some municipalities (e.g., Seattle Office for Civil Rights, Tacoma Human Rights Commission, etc.) have established departments that work to resolve, inter alia, employment discrimination and retaliation complaints based on protected classes. The services offered by these departments vary from city to city, and not all municipalities in Washington State maintain such departments.
1. Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
2. Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.
3. Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.
4. Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.
The Washington Law Against Discrimination (WLAD), RCW 49.60, is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions based on protected classes.
Protected classes include the following: race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.
WLAD also prohibits retaliation against persons who engage in protected activity in relation to discriminatory practices, and those who file health care and state employee whistleblower complaints.
The Washington State Human Rights Commission (WSHRC) is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. It works to prevent and eliminate discrimination through complaint investigation, alternative dispute resolution, and education, training and outreach activities.
