Uncategorized Archives — LAW OFFICE OF GREGORY A. WILLIAMS

June 26, 2021October 20, 2024

Top 3 Causation Standards: Unlawful Retaliation

Unlawful retaliation is common legal theory that plaintiff-employees assert under employment discrimination law; causation is one of several elements that must be proven. The Washington State Supreme Court has considered several standards of causation pursuant to claims of unlawful retaliation under the Washington Law Against Discrimination, RCW 49.60.

(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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UNLAWFUL RETALIATION (WA STATE)

“To establish a prima facie case of [unlawful] retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link between the employee’s protected activity and the adverse employment action.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis and hyperlink added).

The focus of this article is the third element: causal link (or causation). “An employee [shows a causal link (i.e., causation)] ‘by [revealing] … that retaliation was a substantial factor motivating the adverse employment decision.’ ” Cornwell, 430 P.3d at 235 (Wash. 2018) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

SUMMARY JUDGMENT (WA STATE)

“[T]o avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. at 235 (internal citation omitted). “Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added).

In this article, the 2nd element (i.e., the employer had knowledge of the action) is at issue, and the Washington State Supreme Court has considered several associated standards of causation.

TOP 3 STANDARDS OF UNLAWFUL-RETALIATION CAUSATION (WA STATE):

Here are my top 3 standards of unlawful-retaliation causation (WA State):

#3 — THE GENERAL-CORPORATE-KNOWLEDGE STANDARD

The general-corporate-knowledge standard is somewhat of a misnomer, because the Washington State Supreme Court both raised and dismissed it in Cornwell v. Microsoft Corporation, 430 P.3d 229, 235 (Wash. 2018) (“We decline to address the ‘general corporate knowledge’ standard in this case.”) (footnote omitted).

Nevertheless, the Court declared, “Under this standard, the jury can still find retaliation in circumstances where the particular decision-maker denies actual knowledge of the plaintiff’s protected activities, ‘so long as … the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’ ” Id. at 241, n. 6 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration in original; second alteration added).

This standard “may be useful in situations where many individuals act collectively in a large company[ ] [.]” Id.

#2 — THE KNEW-OR-SUSPECTED STANDARD

“The knew-or-suspected standard incorporates the ‘actual knowledge’ standard, infra, and also encompasses cases in which the employer suspects that an employee engaged in protected action.” Id. at 237 (footnote omitted) (emphasis added).

This standard “[r]equires sufficient evidence to reasonably infer ‘both that [a supervisor] either knew or suspected’ that an employee took a protected action ‘and that there was a causal connection between this knowledge or suspicion and [the employee’s] termination.’ ” Id. (citing Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003)) (alteration in original).

EXAMPLE: “This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.” Id.

SUMMARY JUDGMENT: “So long as an employee produces evidence from which a reasonable jury could infer that retaliation had taken place, this is sufficient to survive summary judgment.” Id. (citing Hernandez at 1114). “And while, a jury could believe the supervisor’s version of events rather than the employee’s, the jury must be permitted to consider and weigh evidence.” Id.

#1 — THE ACTUAL-KNOWLEDGE STANDARD

Under the actual-knowledge standard, “the employer [must] have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235. (internal citations omitted).

The policy behind the actual-knowledge standard is that “[b]ecause retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

LEGAL SIGNIFICANCE IRRELEVANT: But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added). “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

SUMMARY JUDGMENT: At summary judgment, “[t]he proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original) (emphasis added).

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

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

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

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

June 26, 2021October 20, 2024

The Relative and Qualifying Words-and-Phrases Rule

Under Washington State canons of statutory construction, what is the Relative and Qualifying Words-and-Phrases Rule? Here’s my point of view.

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THE RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE

In Washington State, “[c]ourts construe relative and qualifying words and phrases, both grammatically and legally, to refer to the last antecedent if a contrary intention does not appear in the statute.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 240, 59 P.3d 655 (Wash. 2002) (citing In re Application of Andy, 49 Wn.2d 449, 302 P.2d 963 (1956); see, e.g. Caughey v. Employment Sec. Dep’t, 81 Wn.2d 597, 602, 503 P.2d 460 (1972) (“[W]here no contrary intention appears in a statute, relative and qualifying words and phrases refer to the last antecedent.”)).

“The reason for this rule … is to make clear what is being modified.” Id.

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-gw

June 26, 2021October 20, 2024

The Diversity Jurisdiction Gambit

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

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DIVERSITY & SUPPLEMENTAL JURISDICTION

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

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

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

THE DIVERSITY JURISDICTION GAMBIT

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

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

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

CONCLUSION

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

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

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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.

June 26, 2021October 20, 2024

Top 3 Employment Discrimination Agencies

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.

#2 — U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The United States Equal Employment Opportunity Commission (EEOC) enforces Federal laws prohibiting employment discrimination. You may seek recourse through the EEOC if you experience employment discrimination that involves:

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.

Visit the EEOC Website to learn more.

#1 — WASHINGTON STATE HUMAN RIGHTS COMMISSION

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.

Visit the WSHRC Website to get more information.

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–gw

June 19, 2021October 20, 2024

Presumption of Prospective Application

Under Washington State canons of statutory construction, what is Presumption of Prospective Application? Here’s my point of view.

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THE PRESUMPTION OF PROSPECTIVE APPLICATION

Under the Washington State canon Presumption of Prospective Application, the court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271 (Wash. 2012) (internal citations and quotation marks omitted).

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June 18, 2021October 20, 2024

Agency Rules

Under Washington State canons of statutory construction, how do courts interpret agency rules–particularly those of the Washington State Human Rights Commission (WSHRC/HRC)? Here’s my point of view.

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“PLAIN MEANING” CANON ALSO APPLIES TO AGENCY RULES

Washington State Human Rights Commission is a state agency. “As is true of statutes, [Washington courts] … interpret agency rules according to their plain meaning.” Mikolajczak v. Mann, 1 Wn.App.2d 493, 498 (Wash.App. Div. 3 2017) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 349, 172 P.3d 688 (2007)) (hyperlink added). “Each word in an agency rule must be given its common and ordinary meaning, unless the word is ambiguous or defined in the regulation.” Id. (citing Grays Harbor Energy, LLC. v. Grays Harbor County, 175 Wn.App. 578, 584, 307 P.3d 754 (2013)) (internal quotation marks omitted) (hyperlink added).

LIBERAL CONSTRUCTION APPLIED TO WA STATE HUMAN RIGHTS COMMISSION (HRC) RULES

Washington courts also “liberally construe the terms of the [Washington State Human Rights Commission’s] … rules to protect against discrimination.” Id. (citing Phillips v. City of Seattle, 111 Wn.2d 903, 908, 766 P.2d 1099 (1989)).

REGULATORY REDRAFTING PROHIBITED

“However, [courts] … cannot engage in statutory or regulatory redrafting.” Id. (citing Hegwine, 162 Wn.2d at 352, 172 P.3d 688). “If a particular discrimination claim is plainly left uncovered by both the [Washington Law Against Discrimination (“WLAD”)] … and the HRC’s implementing rules, it will not merit relief.” Id. at 498-99.

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June 3, 2021October 20, 2024

Inadvertent Waiver of Res Judicata

Under Washington State Superior Court Civil Rules, how is the inadvertent waiver of the affirmative defenses of res judicata, priority of action, and claim splitting addressed? Here’s my point of view.

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WAIVER OF AFFIRMATIVE DEFENSES

The Washington State Supreme Court developed two relevant tests to determine whether a waiver of affirmative defenses has occurred:

(1) waiver based on civil rules; and

(2) common law waiver.

Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver).

It is not uncommon for defendant-employers in employment discrimination cases to inadvertently waive the affirmative defenses of res judicata, priority of action, and/or claim splitting under the civil rules (this article does not address common law waiver).

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled. See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specifically pled).

Particularly, in order for res judicata to have a preclusive effect, the second court must be advised of the prior proceeding, and the burden of pleading “res judicata” is listed among the affirmative defenses. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added).

Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense.” Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007). Thus, “claim splitting” and “priority of action” must also be specifically pled as affirmative defenses.

If specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case. Rainier Nat. Bank, 30 Wn.App. at 422 (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976))(emphasis added).

This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties. Id. (internal citations omitted) (emphasis added).

EXAMPLE: RAINIER NAT. BANK v. LEWIS

For example, in Rainier Nat. Bank v. Lewis, the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).

CONCLUSION

Under Washington State Superior Court Civil Rules, the affirmative defenses of res judicata, priority of action, or claim splitting may be inadvertently waived if not properly plead.

An employment discrimination plaintiff facing a defendant’s motion for summary judgment based upon defenses of priority of action rule, claim splitting, and/or res judicata would be wise to evaluate whether the defendant has properly asserted such affirmative defenses at the beginning of the case in their responsive pleading; there might be a strong argument for waiver based on the civil rules. I have successfully made this argument on multiple occasions against defendant-employers at summary judgment.

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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.

April 15, 2021October 20, 2024

Definition of Labor Organization (WLAD)

Under the Washington Law Against Discrimination (WLAD), what is the definition of “labor organization”? Here’s my point of view.

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(1) The 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:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

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:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

(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.

[dISCHARGE OR BAR FROM EMPLOYMENT]

(2) To discharge or bar any person from 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.

[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.

RCW 49.60.180 (emphasis and hyperlinks added). The WLAD defines organizational types that are subject it.

DEFINITION OF LABOR ORGANIZATION

The WLAD defines the term “labor organization” as follows:

…

(16) “Labor organization” includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment.

RCW 49.60.040(16) (emphasis and hyperlinks added). Victims of discrimination in violation of the WLAD may seek generous remedies.

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).

Definition of Insurance Transaction (WLAD)

Under the Washington Law Against Discrimination (WLAD), what is the definition of “insurance transaction”? Here’s my point of view.

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD regulates, inter alia, insurance transactions.

DEFINITION OF INSURANACE TRANSACTION (AND HEALTH MAINTENANCE ORGANIZATION)

The WLAD defines insurance transaction as follows:

RCW 48.01.060
“Insurance transaction” defined.
“Insurance transaction” includes any:

(1) Solicitation.
(2) Negotiations preliminary to execution.
(3) Execution of an insurance contract.
(4) Transaction of matters subsequent to execution of the contract and arising out of it.
(5) Insuring.

RCW 48.01.060 (paragraph formatting and hyperlink added).

NOTE: The WLAD also establishes, inter alia, the right to engage in transactions with health maintenance organizations without discrimination; accordingly, the WLAD defines “health maintenance organization” as follows:

…

(13) “Health maintenance organization” means any organization receiving a certificate of registration by the commissioner under this chapter which provides comprehensive health care services to enrolled participants of such organization on a group practice per capita prepayment basis or on a prepaid individual practice plan, except for an enrolled participant’s responsibility for copayments and/or deductibles, either directly or through contractual or other arrangements with other institutions, entities, or persons, and which qualifies as a health maintenance organization pursuant to RCW 48.46.030 and 48.46.040.

RCW 48.46.020(13) (hyperlink added).

INSURANCE TRANSACTIONS: UNFAIR PRACTICES

Persons engaging in insurance transactions, as defined by the WLAD, are prohibited from engaging in specific unfair practices. The relevant WLAD provision follows:

RCW 49.60.178
Unfair practices with respect to insurance transactions.

(1) It is an unfair practice for any person whether acting for himself, herself, or another in connection with an insurance transaction or transaction with a health maintenance organization to cancel or fail or refuse to issue or renew insurance or a health maintenance agreement to any person because of sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration 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 disabilities: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, 48.46.370, or 48.43.0128 does not constitute an unfair practice for the purposes of this section.

For the purposes of this section, “insurance transaction” is defined in RCW 48.01.060, health maintenance agreement is defined in RCW 48.46.020, and “health maintenance organization” is defined in RCW 48.46.020.

(2) The fact that such unfair practice may also be a violation of chapter 48.30, 48.43, 48.44, or 48.46 RCW does not constitute a defense to an action brought under this section.

(3) The insurance commissioner, under RCW 48.30.300 and 48.43.0128, and the human rights commission, under chapter 49.60 RCW, shall have concurrent jurisdiction under this section and shall enter into a working agreement as to procedure to be followed in complaints under this section.

RCW 49.60.178 (paragraph formatting and hyperlinks added).

WLAD REMEDIES

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-gw

April 1, 2021March 26, 2026

Definition of Employer (WLAD)

Under the Washington Law Against Discrimination (WLAD), what is the definition of “employer”? Here’s my point of view.

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

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:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

RCW 49.60.180 (emphasis and hyperlinks added).

UNLAWFUL RETALIATION

The WLAD also outlaws certain types of retaliation: “[i]t 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 … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t 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.” RCW 49.60.210.

An employer engaging in any of the above-referenced unfair practices will be subject to WLAD if it falls under its definition of “employer.”

DEFINITION OF EMPLOYER

The WLAD defines the term “employer,” as follows:

…

(11) “Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

RCW 49.60.040(11) (hyperlinks added).

UNLAWFUL RETALIATION (WA STATE)

SUMMARY JUDGMENT (WA STATE)

TOP 3 STANDARDS OF UNLAWFUL-RETALIATION CAUSATION (WA STATE):

#3 — THE GENERAL-CORPORATE-KNOWLEDGE STANDARD

#2 — THE KNEW-OR-SUSPECTED STANDARD

#1 — THE ACTUAL-KNOWLEDGE STANDARD

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THE RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE

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DIVERSITY & SUPPLEMENTAL JURISDICTION

THE DIVERSITY JURISDICTION GAMBIT

CONCLUSION

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#3 — MUNICIPAL CIVIL RIGHTS DEPARTMENTS

#2 — U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

#1 — WASHINGTON STATE HUMAN RIGHTS COMMISSION

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THE PRESUMPTION OF PROSPECTIVE APPLICATION

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“PLAIN MEANING” CANON ALSO APPLIES TO AGENCY RULES

LIBERAL CONSTRUCTION APPLIED TO WA STATE HUMAN RIGHTS COMMISSION (HRC) RULES

REGULATORY REDRAFTING PROHIBITED

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WAIVER OF AFFIRMATIVE DEFENSES

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

EXAMPLE: RAINIER NAT. BANK v. LEWIS

CONCLUSION

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

UNFAIR PRACTICES OF EMPLOYERS

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

DEFINITION OF LABOR ORGANIZATION

WLAD REMEDIES

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

DEFINITION OF INSURANACE TRANSACTION (AND HEALTH MAINTENANCE ORGANIZATION)

INSURANCE TRANSACTIONS: UNFAIR PRACTICES

WLAD REMEDIES

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

UNFAIR PRACTICES OF EMPLOYERS

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

UNLAWFUL RETALIATION

DEFINITION OF EMPLOYER

WLAD REMEDIES

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