Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1)  Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

(2)  WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.

(3)  After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

(4)  Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

(5)  [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

-Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016).


ISSUE #1:  Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

 

-RULE-

STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION):  The Court reviews findings of fact for substantial evidence. Id. at 256 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings had the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

MEANING OF SUBSTANTIAL EVIDENCE:  Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).

SUBSTITUTE JUDGMENT:  As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

DE NOVO REVIEW:  The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).

 

-ANALYSIS-

In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices. One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents. Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

 

-CONCLUSION-

The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.

 


ISSUE #2:  Did the employees prevail on their disparate treatment claim?

 

-RULE-

WLAD GENERALLY:  “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

DISPARATE TREATMENT:  Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

VALID JUSTIFICATION:  “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991) (internal citation parenthetical phrases omitted). The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).

BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ):  “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

THE BFOQ TEST:  “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

 

-ANALYSIS-

DISPARATE TREATMENT:  In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction. The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id. 

BFOQ DEFENSE:  Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

 

-CONCLUSION-

The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.

 


ISSUE #3:  Did the employees prevail on their hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260. “An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT):  The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d 406-07).

THIRD ELEMENT CRITERIA:  “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment … : the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

 

-ANALYSIS-

In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of sever or pervasive harassment.” Id.

 

-CONCLUSION-

The Court held that “based on the trial court’s factual findings, which  we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”

 


ISSUE #4:  Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

 

-RULE-

REMEDIES:  RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id. 

 

-ANALYSIS-

Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

 

-CONCLUSION-

The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.

 



NOTABLES & IMPLICATIONS:

TITLE VII

[~1]   “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257.

[~2]  “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

[~3]  “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

[~4]  “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id. 

[~5]  “The WLAD ‘shall be consruted liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

[~6]  “RCW 49.60.180 prohibits racial discrimination in employment.” Id.

 


LEARN MORE

If you would like to learn more, consider contacting 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 Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.

(2) In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

(3) The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

(4) That jury instruction required Ms. Allison to show that her discharge was motivated ‘to any degree by retaliation.’

(5) On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

(6) [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.

(7) [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.

-Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 81 (Wash. 1991).


ISSUE #1:  What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

 

-RULE-

The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010). The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020). In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted). Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88.

 

-ANALYSIS-

The Court evaluated the issue based on several argument categories as follows: (1) arguments based on the language of RCW 49.60; (2) arguments based on Federal and Washington state case law; (3) arguments based on public policy considerations; and (4) the Wilmot case.

(1) LANGUAGE OF RCW 49.60:  The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85. The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD Id. at 88.

(2) FEDERAL & STATE CASE LAW:  The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91. “Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.

(3) PUBLIC POLICY CONSIDERATIONS:  The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other. It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95. This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

(4) THE WILMOT CASE:  The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim. Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

 

-CONCLUSION-

The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96. It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.

 


ISSUE #2:  Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

 

-RULE-

(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)

Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.

 

-ANALYSIS-

The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

DISCRIMINATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

RETALIATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

 

-CONCLUSION-

The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.

 


NOTABLES & IMPLICATIONS:

ATTORNEY’S FEES

[~1]  RCW 49.60.030(2) has been interpreted as granting parties to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

CAUSATION

[~2]  “The ‘but for’ standard of causation adopted by the Court of Appeals in Allison will negatively affect enforcement of the law against discrimination.” Id. at 88.

MCDONNELL DOUGLAS APPROACH

[~3]  Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

[~4]  Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

[~5]  Under the McDonnell Approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).

WLAD GENERALLY

[~6]  The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

[~7]  The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

[~8]  The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[~9]  The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.

[~10]  “Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

 


LEARN MORE

If you would like to learn more, consider contacting 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 Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.