Washington Law Against Discrimination Archives — LAW OFFICE OF GREGORY A. WILLIAMS

December 12, 2024December 17, 2024

Sexual Harassment Policy Requirements for Specific WA Employers

Under the Washington Law Against Discrimination, RCW 49.60, what are the sexual harassment and assault policy requirements for hotel, motel, retailer, and security guard entities, and property services contractors? 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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WA State’s Sexual Harassment and Assault Policy Requirements for Specific WA State Employers — Hotel, Motel, Retail, or Security Guard Entity, and Property Services Contractors

Washington State has long been at the forefront of promoting workplace equality and safety. One of the key provisions in this regard is RCW 49.60.515*, a statute within the Washington Law Against Discrimination (WLAD), which imposes specific responsibilities on the following employers–who employ an employee–to combat sexual harassment and assault:

» Hotel, Motel, Retail, and Security Guard Entities; and

» Property Services Contractors.

This provision aims to create safer work environments in sectors that may face heightened risks of such behaviors. Below is a breakdown of the law’s requirements and its impact on employers and employees.

1. Adopting a Sexual Harassment Policy (RCW 49.60.515(1)(a))

Under the law, every employer in the specified sectors is required to adopt a comprehensive sexual harassment policy. This policy must explicitly address how sexual harassment will be prevented, identified, and responded to in the workplace. The inclusion of this policy is an essential step in setting clear standards of behavior and ensuring that employees are aware of their rights and responsibilities.

For employers, having a well-defined sexual harassment policy provides guidance on what constitutes inappropriate behavior and how to handle complaints. This policy serves as a preventative measure and a tool for addressing complaints effectively when they arise.

2. Mandatory Training for Employees and Management (RCW 49.60.515(1)(b))

One of the core requirements of this provision is the mandatory training for managers, supervisors, and employees. The training aims to:

• Prevent sexual assault and sexual harassment in the workplace

• Prevent sexual discrimination

• Educate employees about protections for those who report violations of state or federal laws, rules, or regulations

The training sessions ensure that employees at all levels are aware of the importance of maintaining a respectful and safe work environment. By providing this education, employers can foster a culture of accountability and respect. Additionally, the inclusion of protections for whistleblowers is essential for encouraging employees to report violations without fear of retaliation.

3. Resources for Employees (RCW 49.60.515(1)(c))

In addition to training, employers are required to provide their workforce with a list of resources for those who may experience or witness sexual harassment or assault. At a minimum, this resource list must include contact information for:

• The Equal Employment Opportunity Commission (EEOC)

• The Washington State Human Rights Commission (WSHRC)

• Local advocacy groups focused on preventing sexual harassment and sexual assault

These resources are critical for providing employees with the support and guidance they need to address harassment issues, report incidents, or seek external help if necessary.

4. Panic Buttons for Employees (RCW 49.60.515(1)(d))

In an effort to further enhance the safety of workers in potentially vulnerable situations, the statute mandates that employers in the specified industries provide a panic button to each employee. This panic button is a critical tool for immediate assistance in emergencies, allowing workers to quickly signal for help if they feel threatened or are in danger of harassment or assault.

For employers with fewer than 50 employees, the Washington State Department of Labor and Industries* (L&I) is tasked with providing additional guidance on how this requirement will be applied. This provision does not extend to contracted security guard companies licensed under chapter 18.170* RCW, which have separate regulations in place.

5. Reporting and Documentation Requirements for Property Services Contractors (RCW 49.60.515(2))

Property services contractors, including janitorial companies, must adhere to specific reporting requirements. These include submitting the following information to the L&I:

• The date when the sexual harassment policy was adopted

• The number of managers, supervisors, and employees who have completed the mandated training

• The physical address of each work location where janitorial services are performed, along with details about the workforce and hours worked

These reporting measures ensure that contractors are in compliance with the law and provide valuable data for oversight. This information will be made available in aggregate form to the public, allowing for transparency and accountability.

6. Why This Law Matters

RCW 49.60.515* is designed to address specific vulnerabilities in industries where workers may be at higher risk of harassment or assault, such as hotels, motels, and retail spaces. By instituting preventive measures such as training, panic buttons, and clear policies, the law works to ensure that employees have the tools and protections needed to maintain a safe workplace.

Moreover, the law helps reinforce a broader commitment to workplace equality and safety in Washington State, which aligns with national efforts to curb sexual harassment and assault in the workplace.

7. the statutory provision — rcw 49.60.515

The relevant WLAD statutory provision states as follows:

RCW 49.60.515
Sexual harassment and assault policy—Adoption of by hotel, motel, retail, or security guard entity, or property services contractors—Requirements.

(1) Every hotel, motel, retail, or security guard entity, or property services contractor, who employs an employee, must:

(a) Adopt a sexual harassment policy;

(b) Provide mandatory training to the employer’s managers, supervisors, and employees to:

(i) Prevent sexual assault and sexual harassment in the workplace;

(ii) Prevent sexual discrimination in the workplace; and

(iii) Educate the employer’s workforce regarding protection for employees who report violations of a state or federal law, rule, or regulation;

(c) Provide a list of resources for the employer’s employees to utilize. At a minimum, the resources must include contact information of the equal employment opportunity commission, the Washington state human rights commission, and local advocacy groups focused on preventing sexual harassment and sexual assault; and

(d) Provide a panic button to each employee. The department must publish advice and guidance for employers with fifty or fewer employees relating to this subsection (1)(d). This subsection (1)(d) does not apply to contracted security guard companies licensed under chapter 18.170* RCW.

(2)(a) A property services contractor shall submit the following to the department on a form or in a manner determined by the department:

(i) The date of adoption of the sexual harassment policy required in subsection (1)(a) of this section;

(ii) The number of managers, supervisors, and employees trained as required by subsection (1)(b) of this section; and

(iii) The physical address of the work location or locations at which janitorial services are provided by workers of the property services contractor, and for each location: (A) The total number of workers or contractors of the property services contractor who perform janitorial services; and (B) the total hours worked.

(b) The department must make aggregate data submitted as required in this subsection (2) available upon request.

(c) The department may adopt rules to implement this subsection (2).

(3) For the purposes of this section:

(a) “Department” means the department of labor and industries.

(b) “Employee” means an individual who spends a majority of her or his working hours alone, or whose primary work responsibility involves working without another coworker present, and who is employed by an employer as a janitor, security guard, hotel or motel housekeeper, or room service attendant.

(c) “Employer” means any person, association, partnership, property services contractor, or public or private corporation, whether for-profit or not, who employs one or more persons.

(d) “Panic button” means an emergency contact device carried by an employee by which the employee may summon immediate on-scene assistance from another worker, a security guard, or a representative of the employer.

(e) “Property services contractor” means any person or entity that employs workers: (i) To perform labor for another person to provide commercial janitorial services; or (ii) on behalf of an employer to provide commercial janitorial services. “Property services contractor” does not mean the employment security department or individuals who perform labor under an agreement for exchanging their own labor or services with each other, provided the work is performed on land owned or leased by the individuals.

(f) “Security guard” means an individual who is principally employed as, or typically referred to as, a security officer or guard, regardless of whether the individual is employed by a private security company or a single employer or whether the individual is required to be licensed under chapter 18.170* RCW.

(4)(a) Hotels and motels with sixty or more rooms must meet the requirements of this section by January 1, 2020.

(b) All other employers identified in subsection (1) of this section must meet the requirements of this section by January 1, 2021.

RCW 49.60.515* (emphasis added).

Conclusion

The implementation of RCW 49.60.515 represents a significant step forward in ensuring that employers in high-risk industries take proactive measures to prevent sexual harassment and assault. By requiring sexual harassment policies, training, resources, panic buttons, and regular reporting, this law aims to create safer, more equitable work environments across Washington State. Employers in the specified sectors must familiarize themselves with these requirements to ensure compliance and to create a culture of safety and respect within their organizations. For employees, this law serves as an important safeguard, providing them with the resources and support necessary to navigate and report harassment if it arises.

We invite you to read more of our related blog articles:

» Definition of Sex (WLAD)

» Sexual Harassment in the Workplace

» The Silenced No More Act (WA State)*

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

NEED HELP?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our law office litigates claims under the Washington Law Against Discrimination, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. 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.

November 21, 2024November 21, 2024

Liability for Killing or Injuring Dog Guide or Service Animal (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, is there a provision concerning the killing or injuring of a dog guide or service animal? Here’s my point of view.

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WLAD — LIABILITY FOR KILLING OR INJURING DOG GUIDE OR SERVICE ANIMAL

In Washington State, the rights of individuals with disabilities are protected under a variety of laws, including those governing the treatment of dog guides and service animals. One key WLAD provision is RCW 49.60.370*, which outlines the penalties and remedies for the killing or injury of such animals.

Under this law, if a person negligently or maliciously kills or injures a dog guide or service animal, they are liable for a penalty of $1,000, which must be paid to the user of the animal. This penalty is in addition to any other civil or criminal penalties that may apply. Not only does this law provide financial compensation for the user of the animal, but it also enables the recovery of reasonable attorney’s fees and costs if legal action is required.

Importantly, RCW 49.60.370* clarifies that the Washington State Human Rights Commission has no duty to investigate incidents of negligent or malicious acts against a dog guide or service animal. This means that individuals seeking justice under this statute must take legal action themselves to pursue civil remedies.

THE BLACK-LETTER LAW — RCW 49.60.370

The relevant WLAD section states as follows:

RCW 49.60.370
Liability for killing or injuring dog guide or service animal—Penalty in addition to other remedies or penalties—Recovery of attorneys’ fees and costs—No duty to investigate.

(1) A person who negligently or maliciously kills or injures a dog guide or service animal is liable for a penalty of one thousand dollars, to be paid to the user of the animal. The penalty shall be in addition to and not in lieu of any other remedies or penalties, civil or criminal, provided by law.

(2) A user or owner of a dog guide or service animal, whose animal is negligently or maliciously injured or killed, is entitled to recover reasonable attorneys’ fees and costs incurred in pursuing any civil remedy.

(3) The commission has no duty to investigate any negligent or malicious acts referred to under this section.

RCW 49.60.370* (hyperlinks added).

CONCLUSION

For employers, this law reinforces the need for a respectful and inclusive environment for employees who rely on service animals. It’s crucial that workplace policies support the safety and well-being of both employees and their service animals or guide dogs. In doing so, employers not only comply with the law but also foster a more inclusive and supportive workplace culture. By understanding and respecting the legal rights of employees with disabilities and their service animals and guide dogs, businesses can ensure they provide an environment that is safe, fair, and legally compliant.

READ OUR RELATED ARTICLES

» Definition of Dog Guide (WLAD)

» Definition of Service Animal (WLAD)

» License Waiver for Dog Guide and Service Animals (WLAD)

LEARN MORE

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.

November 14, 2024November 14, 2024

What are the elements of Disparate Treatment in WA State?

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FAQ: What are the elements of Disparate Treatment in WA State?

answer:

The elements of a Disparate Treatment claim in WA State require an employee-plaintiff to show:

a) Plaintiff is a member of one or more protected classes;

b) Plaintiff suffered a tangible adverse employment action;

c) The action occurred under circumstances that raise a reasonable inference of unlawful discrimination; and

d) Plaintiff was doing satisfactory work.

See Marin v. King County*, 194 Wn.App. 795, 808-09 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016).

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — DISPARATE TREATMENT — Generally

Under the WLAD, disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, [disability], [age], or other protected status.” Alonso v. Qwest Communications Company*, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)) (hyperlinks added).

THE “ADVERSE EMPLOYMENT ACTION” ELEMENT

Adverse employment action “means ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” Id.* at 808 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

THE “REASONABLE INFERENCE OF UNLAWFUL DISCRIMINATION” ELEMENT

Employment-discrimination plaintiffs often establish this element by using similarly situated, nonprotected co-workers for comparison. Such “[s]imilarly situated employees must have the same supervisor, be subject to the same standards, and have engaged in the same conduct.” Id.* at 810 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).

ELEMENTS ARE NOT ABSOLUTE But VARY BASED ON RELEVANT FACTS

“The elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin*, 194 Wn.App. at 808 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)).

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)*.

Read Our Related Articles

» Definition of Prima Facie Case*

» Disparate Treatment: A Closer Look*

» Disparate Treatment: Bona Fide Occupational Qualification*

» Disparate Treatment vs. Disparate Impact Discrimination*

» Disparate Treatment via Hostile Work Environment*

» Disparate Treatment: Pretext by Comparison

» McDonnell Douglas Framework (Step 1): The Prima Facie Case*

» Prima Facie Case: The Replacement Element*

» The Prima Facie Case: Disparate Treatment

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» Top 3 Reasons Disparate Treatment Claims Fail

» WLAD: Disparate Treatment via Hostile Work Environment

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

NEED HELP?

If you need legal assistance, 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.

November 7, 2024November 7, 2024

Determining Pretext Comparators: The Disparate-Discipline Method

Under Washington State laws, what is the Disparate-Discipline Method of determining pretext comparators when litigating a claim of wrongful discharge? 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 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.)

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Wrongful Discharge — Determining Pretext Comparators — The Disparate-Discipline Method (WA State)

The Washington Law Against Discrimination (“WLAD”) “prohibits employers from discharging any employee on the basis of a protected characteristic[.]” Litvack v. Univ. of Wash, 546 P.3d 1068, 1077 (Div. I 2024) (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County*, 189 Wash.2d 516, 526, 404 P.3d 464 (2017); RCW 49.60.180*) (hyperlink added).

“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. (citing Mikkelsen*, 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. (citing Mikkelsen*, 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 (citing Mikkelsen*, 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

(1) she was within a statutorily protected class,

(2) she was discharged by the defendant,

(3) she was doing satisfactory work, and

(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 (citing Johnson, 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. (citing Fell 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. (citing Mikkelsen*, 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).