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

July 14, 2022October 21, 2024

Accent Discrimination in the Workplace (WA State)

Under the Washington Law Against Discrimination, is accent discrimination in the workplace illegal? 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.)

Advertisement

THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

Under the WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status.

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.

ACCENT DISCRIMINATION IS NATIONAL ORIGIN DISCRIMINATION

In Washington, “[n]ational origin discrimination includes discrimination against an employee because he/she shares the linguistic characteristics of a national origin group.” Xieng v. Peoples Nat. Bank of Washington, 63 Wn.App. 572, 578 (Wash.App. Div. I 1991), aff’d, 120 Wn.2d 112 (Wash. 1993) (internal quotation marks and citation omitted) (hyperlinks added). Thus, under the the Washington Law Against Discrimination, national origin discrimination includes discrimination based upon foreign accent.

THE NINTH CIRCUIT

Moreover, the Ninth Circuit has found that employers face a heavy burden in accent discrimination cases as they could easily “use an individual’s foreign accent as a pretext for national origin discrimination.” See id. at 579 (internal quotation marks and citation omitted). Accordingly, courts tend to thoroughly scrutinize adverse employment decisions against employees based upon claims of inadequate oral communication skills. See id.

Ultimately, an employer’s adverse employment decision (e.g., demotion, termination, write-ups, etc.) “may be predicated upon an individual’s accent when–but only when–it interferes materially with job performance.” Id. (quoting Fragante v. City and Cy. of Honolulu, 888 F.2d 591, 596 (9th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990)). Otherwise, the employer may be facing liability under the Washington Law Against Discrimination for national origin discrimination based upon foreign accent.

CONCLUSION

An employer’s adverse employment decisions “may be predicated upon an individual’s accent when–but only when–it interferes materially with job performance.” Xieng, 63 Wn.App. at 578 (internal citations omitted). Otherwise, the employer may be facing liability under the Washington Law Against Discrimination for national origin discrimination based upon foreign accent.

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.

July 7, 2022October 21, 2024

The Eight-Or-More-Employees Rule

Under the Washington Law Against Discrimination (WLAD), what is the Eight-Or-More-Employees Rule? Here’s my point of view.

Advertisement

WLAD: THE EIGHT-OR-MORE-EMPLOYEES RULE

The Washington State Law Against Discrimination (WLAD) defines “employer” as including any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons (hereinafter, “Eight-Or-More-Employees Rule“), and does not include any religious or sectarian organization not organized for private profit. Thus, only employers that fall within this definition are subject to the WLAD.

THE WASHINGTON STATE HUMAN RIGHTS COMMISSION

The Washington State Human Rights Commission has established the following regulations that dictate who is counted as employed for purposes of the Eight-Or-More-Employees Rule:

(1) PURPOSE AND SCOPE. RCW 49.60.040 defines “employer” for purposes of the law against discrimination in part as “any person . . . who employs eight or more persons.” This section establishes standards for determining who is counted as employed when deciding whether a person is an employer. The standards in this section do not define who is entitled to the protection of the law against discrimination.

(2) TIME OF CALCULATION. A person will be considered to have employed eight if the person either:

(a) Had an employment relationship with eight or more persons for any part of the day on which the unfair practice is alleged to have occurred, or did occur; or

(b) Had an employment relationship with an average of eight or more persons over a representative period of time including the time when the unfair practice is alleged to have occurred.

An employment relationship is most readily demonstrated by a person’s appearance on the employer’s payroll. The representative period of time for (b) of this subsection will ordinarily be the twenty weeks prior to and including the date on which the unfair practice is alleged to have occurred. However, where this period will not accurately reflect the overall employment level, as in a seasonal industry, we will use the month during which the unfair practice is alleged to have occurred plus the preceding eleven months.

(3) PART TIME EMPLOYEES: A person working part time will be counted the same as a person working full-time. Persons subject to call to work (such as volunteer firefighters) will be considered to be employed at all times when they are subject to call.

(4) AREA OF CALCULATION: A person who employs eight or more persons is an “employer” for purposes of the law against discrimination even though less than eight of the employees are located in the state of Washington.

(5) MULTIPLE PLACES OF EMPLOYMENT. The count will include all persons employed by the same legal entity, whether or not the persons work in the same place of business or line of business.

(6) CONNECTED CORPORATIONS. Corporations and other artificial persons that are in common ownership or are in a parent-subsidiary relationship will be treated as separate employers unless the entities are managed in common in the area of employment policy and personnel management. In determining whether there is management in common we will consider whether the same individual or individuals do the managing, whether employees are transferred from one entity to another, whether hiring is done centrally for all corporations, and similar evidence of common or separate management.

(7) PERSONS ON LAYOFF. Persons on layoff will not be counted.

(8) PERSONS ON LEAVE. Persons on paid leave will be counted. Persons on unpaid leave will not be counted.

(9) EMPLOYEE OR INDEPENDENT CONTRACTOR. Independent contractors will not be counted. In determining whether a person is employed or is an independent contractor for the jurisdictional count we will use the same standards that we use for the purpose of determining whether a person comes within the protection of the law against discrimination. These standards are set out in WAC 162-16-230.

(10) PAY. Anyone who is paid for work and who otherwise meets the standards in this section will be counted. This includes paid interns and work study program participants. Pay includes compensation for work by the hour, by commission, by piecework, or by any other measure. For the treatment of unpaid persons, see subsection (11) of this section.

(11) UNPAID PERSONS. An unpaid person will be counted if he or she is generally treated in the manner that employers treat employees. That is, if management selects the person (particularly if selected in competition with other persons), assigns work hours, disciplines the unpaid person like an employee, or provides employment benefits such as industrial insurance, then the person will be counted as an employee. The typical volunteer firefighter would be counted. A person who comes into the food bank when he or she pleases, is put to work if there is anything to do, who leaves when he or she pleases, who has no expectation of paid employment, and who receives no employment benefits, would not be counted.

(12) FAMILY MEMBERS. Because of the definition of “employee” in RCW 49.60.040, we will not count “any individual employed by his or her parents, spouse, or child.” Other family members will be counted.

(13) DOMESTIC HELP. Because of the definition of “employee” in RCW 49.60.040, we will not count a person in the domestic service of the employing person.

(14) DIRECTORS. Directors of corporations, and similar officers of other private or public artificial legal entities, will not be counted simply because they serve in that capacity.

(15) OFFICERS. Officers of corporations, and officers of other private or public artificial legal entities, will be counted unless:

(a) They receive no pay from the corporation or other entity; and

(b) They do not participate in the management of the corporation or other entity beyond participation in formal meetings of the officers.

(16) PARTNERS. Partners will not be counted as employed by the partnership or by each other.

(17) MEMBERS OF A PROFESSIONAL SERVICE CORPORATION. All persons who render professional services for a professional service corporation will be counted as employees of the corporation.

(18) TEMPORARY EMPLOYEE PLACEMENT SERVICES. Persons placed with an on-site employer by a temporary employee placement service:

(a) Will be counted as employees of the temporary placement service; and

(b) Will also be counted as employees of the on-site employer if the on-site employer generally treated them in the manner that employers treat employees (please see the factors listed in WAC 162-16-230).

See WAC 162-16-220 (emphasis, paragraph formatting, and hyperlinks added).

CONCLUSION

The Washington Law Against Discrimination defines “employer” in part as “any person . . . who employs eight or more persons.” This is also known as the Eight-Or-More-Employees Rule. The Washington State Human Rights Commission establishes the standards for determining who is counted as employed when deciding whether a person is an employer.

LEARN MORE

June 30, 2022October 21, 2024

Unlawful Retaliation: The Functionally-Similar Test

Under the Washington Law Against Discrimination (WLAD), how do courts apply the Functionally-Similar Test when addressing claims of unlawful retaliation? Here’s my point of view.

Advertisement

WLAD: THE ANTIRETALIATION PROVISION

The relevant WLAD antiretaliation provision is found under RCW 49.60.210(1), and it states as follows:

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

RCW 49.60.210(1) (emphasis added). That provision does not clearly establish what the phrase “other person” means. Washington courts apply the Functionally-Similar Test to, inter alia, determine what “other persons” are subject to WLAD’s antiretaliation provision.

THE FUNCTIONALLY-SIMILAR TEST

Specifically, “Washington courts employ the ‘functionally similar’ test to determine whether the defendant had sufficient control over the plaintiff’s employment to be held personally liable for discriminatory actions.” Certification From the United States District Court for the Eastern District of Washington in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) (referencing Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. 927, 930, 965 P.2d 1124 (1998) (coworker without supervisory authority is not personally liable for retaliation)).

Such discriminatory actions include those subject to WLAD’s antiretaliation provision. Accordingly, “[t]he [antiretaliation] section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. at 930 (emphasis and hyperlink added).

Thus, under the Functionally-Similar Test, a defendant might be held personally liable for discriminatory actions under the Washington Law Against Discrimination–including the antiretaliation provision–if that defendant satisfies any one or more of the following:

» Employs the plaintiff;
» Manages the plaintiff;
» Supervises the plaintiff;
» Is in a position to discharge the plaintiff;
» Is in a position to expel the plaintiff;
»Is in a position to expel plaintiff from membership in any organization.

See id. at 930-31.

EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.

In Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. 927, 930, 965 P.2d 1124 (1998), plaintiff Malo sued defendants Alaska Trawl Fisheries and its employee Captain Campbell, “alleging they had taken action against him in retaliation for his opposition to sexual harassment on board the vessel.” Malo, 92 Wn.app. at 928. The trial court dismissed Malo’s claims on summary judgment. Malo appealed.

The Court of Appeals found that Captain Campbell “did not employ, manage or supervise Malo”; and Campbell “was not in a position to discharge Malo or to expel him from membership in any organization.” Id. at 930. Consequently, Campbell did not pass the Functionally-Similar Test, and the court Court of Appeals found that “[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo’s claim against Campbell under that statute.” Id. at 930-31 (hyperlink added).

CONCLUSION

The WLAD antiretaliation provision applies to employers, employment agencies, labor unions, or other persons; under the Functionally-Similar Test, “other persons” might be held personally liable for discriminatory actions if that defendant satisfies any one or more of the following:

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

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

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.

LEARN MORE

June 16, 2022December 12, 2024

Sexual Harassment in the Workplace (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does an employee establish a claim of sexual harassment in the workplace? Here’s my point of view.

Advertisement

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): SEXUAL HARASSMENT IN THE WORKPLACE

In Washington State, there are two types of sexual harassment: (a) quid pro quo; and (b) hostile work environment. This article will address hostile work environment.

“To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]”

(1) the harassment was unwelcome;

(2) the harassment was because of sex;

(3) the harassment affected the terms or conditions of employment; and

(4) the harassment is imputed to the employer.

Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406-07 (Wash. 1985) (footnote omitted) (hyperlinks and paragraph formatting added). I will discuss each element in turn.

ELEMENT #1 — THE HARASSMENT WAS UNWELCOME

Under the first element, the employee must prove that the harassment was unwelcome. Thus, “[i]n order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.

ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX

The second element of a claim of sexual harassment in the workplace requires the employee show that the harassment was because of sex/gender. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

ELEMENT #3 — THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT

Pursuant to the third element, the employee must prove that the sexual harassment affected the terms or conditions of employment. “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: Washington State courts typically look at the totality of the circumstances to evaluate this element. “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07.

ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER

The final element requires the employee to show the harassment is imputable to the employer; this will depend on the classification of the harassing individual.

(a) Where Owner, Manager, Partner, or Corporate Officer Harasses

“Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

(b) Where Supervisors or Co-Workers Harass

“To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]

(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and

(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.

Id. (paragraph formatting and emphasis added).

HOW THE EMPLOYER MAY AVOID LIABILITY

Under WLAD, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

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*

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

Hostile Work Environment: The Unwelcome Element

McDonnel Douglas Burden-Shifting Framework*

Protected Classes

Sexual Harassment in the Workplace (WA State)

Sexual Harassment Policy Requirements for Specific WA Employers

The Prima Facie Case: Hostile Work Environment

Top 3 Hostile Work Environment Issues

WLAD: Disparate Treatment via Hostile Work Environment

WLAD: Imputing Harassment to Employers*

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

LEARN MORE

June 9, 2022October 21, 2024

The Prima Facie Case: Disparate Treatment

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for disparate treatment discrimination? Here’s my point of view.

Advertisement

THE PRIMA FACIE CASE: DISPARATE TREATMENT

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).

“To establish a prima facie case of … discrimination based on disparate treatment, an employee must show that[:]

(1) the employee belongs to a protected class;

(2) the employer treated the employee less favorably in the terms or conditions of employment

(3) than a similarly situated, nonprotected employee,

(4) who does substantially the same work.

Davis v. West One Automotive Group, 140 Wn.App. 449, 458-59 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008) (citing Washington v. Boeing Co., 105 Wash.App. 1, 13, 19 P.3d 1041 (2000) (quoting Johnson v. Dep’t of Soc. & Health Servs., 80 Wash.App. 212, 227, 907 P.2d 1223 (1996))).

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

In Davis v. West One Automotive Group, “Davis, an African American, was hired as a salesman for West One in February 2005 and terminated in July 2005.” Id. at 453. “After he was terminated[ ][:]

he brought this action under Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW, alleging hostile work environment, disparate treatment and retaliatory discharge. The trial court granted West One’s motion for summary judgment dismissal. Mr. Davis appeal[ed].

Id. at 452.

Thereafter, the Washington State Court of Appeals (division 3) determined that plaintiff Davis established a prima facie case of disparate treatment based on the following three specific instances of disparate treatment:

[The Newspaper Photo]

[1] First he claims his picture was not put in the paper when he was salesman of the month, as was custom. West One claims this was a mistake. Mr. Davis testified that when he brought the mistake to West One’s attention, it refused to correct the error by placing his picture in the paper. Whether West One’s actions were a mere mistake or support a claim of disparate treatment is a disputed question of fact.

[The Vehicle]

[2] Mr. Davis next alleges he was treated less favorably than other similarly situated employees because he was not permitted to drive any car he wanted as salesman of the month, though [a fellow sales employee] was always permitted to do so. When Mr. Davis was salesman of the month, he elected to drive a BMW. When he took the BMW, he was told to return it for service. There is a factual dispute about whether service was necessary. This dispute presents a question of fact for a jury.

[The Unfair Discipline]

[3] Mr. Davis claims he was held to a higher standard than other employees; he was disciplined more harshly for missing work and being late than were his co-workers. West One disputes this claim. There is conflicting evidence as to the tardiness and truancy of Mr. Davis and other employees, and as to West One’s tolerance, or not, of this behavior.

On this record summary judgment was not appropriate.

Id. at 459 (internal citations omitted). Accordingly, the Court of Appeals held, “We reverse the superior court’s order granting summary judgment dismissal of Mr. Davis’s disparate treatment claim.” Id.

WLAD REMEDIES

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment vs. Disparate Impact Discrimination**

» Disparate Treatment via Hostile Work Environment**

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

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» WLAD: Disparate Treatment via Hostile Work Environment

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

LEARN MORE

May 26, 2022October 21, 2024

Hostile Work Environment: Terms or Conditions of Employment

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish the third element of a prima facie case for hostile work environment (i.e., harassment affected the terms or conditions of employment)? Here’s my point of view.

Advertisement

HOSTILE WORK ENVIRONMENT (WA STATE): THE PRIMA FACIE CASE

Hostile work environment is also known as harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:

(1) the harassment was unwelcome,

(2) the harassment was because [plaintiff was a member of a protected class],

(3) the harassment affected the terms or conditions of employment, and

(4) the harassment is imputable to the employer.

Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).

ELEMENT 3: TERMS OR CONDITIONS OF EMPLOYMENT

“The third element requires that the harassment be sufficiently pervasive as to alter the conditions of employment and create an abusive working environment.” Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008) (citing Glasgow v. Georgia-Pac. Corp., 103 Wash.2d 401, 406, 693 P.2d 708 (1985)).

Totality of the Circumstances Test

“To determine whether … conduct was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, courts … look at the totality of the circumstances.” Id. (citing Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 296, 57 P.3d 280 (2002)).

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

The Washington State Court of Appeals, Division 3, applied the Totality-of-the-Circumstances Test in Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008).

Therein:

» … Davis[, an African-American man,] worked for West One Automotive Group (West One) from February 2005 until July 2005.

…

» During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace. [For example:]

[1] On one occasion, West One manager and Mr. Davis’s supervisor … asked Mr. Davis if he knew “why blacks have a day off on Martin Luther King Day?” When Mr. Davis said he did not know, … [the supervisor] responded, “Because they shot and killed his black a[##].” Mr. Davis told … [the supervisor] the comment was inappropriate and not to make such a comment again.

[2] Another time, … [Davis’s supervisor] stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” Mr. Davis was offended, and told … [the supervisor] so.

[3] A third incident involved … [Davis’s supervisor] walking by Mr. Davis’s desk, kicking it and remarking, “What’s up, bitc[#].” Mr. Davis was offended, regarding “bitc[#]” as a derogatory term some African American men use to refer to each other. Mr. Davis again told … [his supervisor] he was offended.

…

[4] On an occasion when Mr. Davis had customers in the finance office and his telephone rang, … [a fellow sales employee] stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked Mr. Klein to refer to him by name.…

» After … [Mr. Davis] was terminated, he brought this action under Washington’s Law Against Discrimination (WLAD), chapter 49.60 RCW, alleging hostile work environment, disparate treatment and retaliatory discharge.

» The trial court granted West One’s motion for summary judgment dismissal.

» Mr. Davis appeal[ed to the Washington State Court of Appeals, Division 3].

Id. at 452-54 (internal citations omitted) (paragraph formatting, carets, and hyperlinks added).

THE ANALYSIS: Hostile Work Environment: Element #3 (i.e., harassment affected the terms or conditions of employment):

In this case, the Court (Division 3) initially determined that “[w]hether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id. at 457. Thereafter, the Court found facts reflecting that the harassment was sufficiently pervasive as to alter the conditions of employment and create an abusive working environment, as follows:

» “Mr. Davis asserts he was humiliated by these comments. He claims emotional distress.” Id.

» “The record shows Mr. Davis was often late and absent from work.” Id.

» “There was friction between him and other employees.” Id.

» “When he called in ill a few days before his termination, Mr. Davis testified that he was ‘[p]robably mentally sick, drained.'” Id. at 457-58 (alteration in original).

Based upon the foregoing, the Court concluded “[a]n inference could be drawn that this was the result of the hostile work environment.” Id. at 458.

TOTALITY-OF-THE-CIRCUMSTANCES

Next, the Court applied the Totality-of-the-Circumstances Test and concluded as follows: “Looking at all the evidence in the light most favorable to Mr. Davis, as required, we conclude he had raised a question of fact with regard to the third element of this claim.” Id. Accordingly, the Court held: “Given the numerous factual issues surrounding Mr. Davis’s hostile work environment claim, we reverse the superior court’s order granting summary judgment dismissal.” Id.

READ OUR RELATED ARTICLES

Definition of Prima Facie Case**

Disability-Based Hostile Work Environment

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

Hostile Work Environment: The Unwelcome Element

McDonnel Douglas Burden-Shifting Framework**

Protected Classes

Sexual Harassment in the Workplace (WA State)

The Prima Facie Case: Hostile Work Environment

Top 3 Hostile Work Environment Issues

WLAD: Disparate Treatment via Hostile Work Environment

WLAD: Imputing Harassment to Employers**

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

LEARN MORE

March 17, 2022October 21, 2024

Unlawful Retaliation: Adverse Employment Action

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is an adverse employment action when pursuing a claim of unlawful retaliation? Here’s my point of view.

Advertisement

UNLAWFUL RETALIATION: THE PRIMA FACIE CASE

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] 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 Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #2: ADVERSE EMPLOYMENT ACTION

The WA State Supreme Court, in majority, has not clearly defined the term “adverse employment action.” However, Federal law and the United States Supreme Court offer some useful guidance on the issue.

-Federal Law

The term “adverse employment action” is undefined under Title VII of the Civil Rights Act of 1964. Accordingly, “the question of what constitutes an adverse employment action has received significant attention from the federal courts, which have not reached a consensus on the issue.” Islamic Society of Fire Department Personnel v. City of New York, 205 F.Supp.2d 75, 82 (E.D.N.Y. 2002) (internal citation omitted).

“Some courts, such as the Fifth and Eighth Circuits, have held that an ‘adverse employment action’ relates only to ‘ultimate employment actions,’ such as hiring, firing, promotions and demotions.” Id. (internal citation and quotation marks omitted).

-Ninth Circuit

However, the Ninth Circuit has adopted the U.S. Equal Employment Opportunity Commission‘s broad definition which takes an “expansive view” of what may be considered an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).

-U.S. Supreme Court

The U.S. Supreme Court confirmed the Ninth Circuit’s general approach to this question in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2409 (2006), and held that an adverse employment action must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of unlawful conduct by the employer.

CONCLUSION

Under the Washington Law Against Discrimination, the definition of “adverse employment action” can be derived from Ninth Circuit caselaw to mean an employment action that is harmful to the point that it could deter a reasonable employee “from making or supporting a charge or unlawful conduct by the employer.”

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

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

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.

LEARN MORE

March 16, 2022October 21, 2024

Unlawful Employment Practices: HIV or hepatitis C infections

Under the Washington Law Against Discrimination (WLAD), what are unlawful employment practices with respect to HIV or hepatitis C infections? Here’s my point of view.

Advertisement

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 and first paragraph hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

UNFAIR EMPLOYMENT PRACTICES: EMPLOYEES WITH HIV OR HEPATITIS C INFECTIONS

Under the WLAD, unfair employment practices with respect to employees with HIV or hepatitis C infections, follow:

Unfair practices with respect to HIV or hepatitis C infection.

(1) No person may require an individual to take an HIV or hepatitis C test, as a condition of hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question.

(2) No person may discharge or fail or refuse to hire any individual, or segregate or classify any individual in any way which would deprive or tend to deprive that individual of employment opportunities or adversely affect his or her status as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of the results of an HIV test or hepatitis C test unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification of the job in question.

(3) The absence of HIV or hepatitis C infection as a bona fide occupational qualification exists when performance of a particular job can be shown to present a significant risk, as defined by the board of health by rule, of transmitting HIV or hepatitis C infection to other persons, and there exists no means of eliminating the risk by restructuring the job.

(4) For the purpose of this chapter, any person who is actually infected with HIV or hepatitis C, but is not disabled as a result of the infection, shall not be eligible for any benefits under the affirmative action provisions of chapter 49.74 RCW solely on the basis of such infection.

(5) Employers are immune from civil action for damages arising out of transmission of HIV or hepatitis C to employees or to members of the public unless such transmission occurs as a result of the employer’s gross negligence.

RCW 49.60.172 (emphasis and hyperlinks added).

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 WLAD] 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).

Top 3 Employment Discrimination Laws

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.)

Advertisement

#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.

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

#2 — TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

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.”

See id.

#1 — THE WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; 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; and state employee or health care whistleblower status. See RCW 49.60.

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.

WLAD is a broad and powerful remedial statue that was originally enacted in 1949 as an employment discrimination law. See Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002) (internal citations omitted); Laws of 1949, ch. 183. Remarkably, Washington State enacted the WLAD 15 years before Title VII of the Civil Rights Act of 1964.

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.

–gw

December 2, 2021October 21, 2024

Unlawful Retaliation: Statutorily Protected Activity

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is statutorily protected activity when pursuing a claim of unlawful retaliation? Here’s my point of view.

Advertisement

THE PRIMA FACIE CASE

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] 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 Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #1 — STATUTORILY PROTECTED ACTIVITY

The first element of the prima facie case requires plaintiffs to establish that they “engaged in a statutorily protected activity.” The meaning of this requirement can be found under the anti-retaliation section of the WLAD statute, as follows:

RCW 49.60.210
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.

(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.

RCW 49.60.210 (emphasis and hyperlinks added).

Thus, pursuant to section one, above, statutorily protected activity includes: (1) opposing any practices forbidden by WLAD, or (2) filing a charge, testifying, or assisting in any proceeding under WLAD.

“Violation of this provision [(i.e., RCW 49.60.210)] supports a retaliation claim.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (referencing Cornwell, 192 Wn.2d at 411).

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

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

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.

LEARN MORE

November 18, 2021October 21, 2024

Failure to Accommodate Religious Practices

Under the Washington Law Against Discrimination (WLAD), how does one establish a prima facie claim of Failure to Reasonably Accommodate Religious Practices? 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. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

Advertisement

FEDERAL LAW

“In the employment context, the WLAD has three federal counterparts:

[(1)] Title VII, [42 U.S.C. § 2000e et seq.,]

[(2)] [T]he Age discrimination in Employment Act (ADEA), [29 U.S.C. § 621 et seq.,] … and

[(3)] [T]he Americans with Disabilities Act (ADA)[, 42 U.S.C. § 12101 et seq.].

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).

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.

-gw

November 4, 2021October 21, 2024

The Prima Facie Case: Disparate Impact

Under the Washington Law Against Discrimination, what is the prima facie case for disparate impact discrimination? Here’s my point of view.

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

Advertisement

DISPARATE IMPACT: THE PRIMA FACIE CASE

The Washington State Supreme Court “has held that the WLAD creates a cause of action for disparate impact.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 503, 325 P.3d 193 (Wash. 2014) (citing E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (1986)).

“To establish a prima facie case of disparate impact, the plaintiff must show that[:]

(1) a facially neutral employment practice

(2) falls more harshly on a protected class.

Id. at 503 (citing Oliver v. P. Nw. Bell Tel. Co., 106 Wn.2d 675, 679, & n.1, 724 P.2d 1003 (1986)) (internal citation omitted) (paragraph formatting added).

EXAMPLE: KUMAR v. GATE GOURMET, INC.

For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (i.e., a protected class falling under “creed“).

The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class, and the court found a viable claim of disparate impact discrimination–reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.

READ OUR RELATED ARTICLES

» Origin of the Disparate Impact Claim

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.

-gw

October 22, 2021October 21, 2024

Disability-Based Hostile Work Environment

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish a disability-based hostile work environment case via circumstantial evidence? Here’s my point of view.

Advertisement

THE PRIMA FACIE CASE: DISABILITY-BASED HOSTILE WORK ENVIRONMENT VIA CIRCUMSTANIAL EVIDENCE

To establish a disability-based hostile work environment case via circumstantial evidence, a plaintiff must first establish a prima facie case by proving:

(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD],

(2) that the harassment was unwelcome,

(3) that it was because of the disability,

(4) that it affected the terms and conditions of employment, and

(5) that it was imputable to the employer.

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) at 45.

SECOND ELEMENT (UNWELCOME)

To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

THIRD ELEMENT (BECAUSE OF DISABILITY)

To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration in original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT)

To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)).

“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration in original).

FIFTH ELEMENT (IMPUTABLE TO EMPLOYER)

To impute harassment to an employer, “the jury must find either that[:]

(1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that

(2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.”

Id. at 47 (internal citation and quotation marks omitted) (second alteration in original) (paragraph formatting added).

READ OUR RELATED ARTICLES

Definition of Prima Facie Case**

Disability-Based Hostile Work Environment

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

Hostile Work Environment: The Unwelcome Element

McDonnel Douglas Burden-Shifting Framework**

Protected Classes

Sexual Harassment in the Workplace (WA State)

The Prima Facie Case: Hostile Work Environment

Top 3 Hostile Work Environment Issues

WLAD: Disparate Treatment via Hostile Work Environment

WLAD: Imputing Harassment to Employers**

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

LEARN MORE

October 5, 2021October 21, 2024

Protected Classes

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what are protected classes for purposes of employment-discrimination claims? Here’s my point of view.

Advertisement

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT DISCRIMINATION

Under the WLAD, individuals have a right to be free from discrimination because of membership in a protected class. See RCW 49.60.030(1). This is recognized as and declared to be a civil right. Id. This right includes, but is not limited to the right to obtain and hold employment without discrimination. RCW 49.60.030(1)(a).

PROTECTED CLASSES

Accordingly, WLAD prohibits unfair employment practices against persons on account of any of the following protected classifications:

1. Age (40+)

2. Creed

3. Citizenship or Immigration Status

4. HIV/AIDS and Hepatitis C Status

5. Honorably Discharged Veteran or Military Status

6. Marital Status

7. National Origin

8. Presence of any Sensory, Mental, or Physical Disability

9. Race or Color

10. Sex (including Pregnancy)

11. Sexual Orientation, including Gender Identity

12. State Employee or Health Care Whistleblower Status

13. Unlawful Retaliation (it is 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)

14. Use of a Trained Dog Guide or Service Animal

WLAD REMEDIES

Pursuant to WLAD:

Any person deeming himself or herself injured by any act in violation of … [WLAD] 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).

LEARN MORE

September 30, 2021October 21, 2024

Public Accommodations Discrimination

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for public accommodations discrimination? Here’s my point of view.

Advertisement

WLAD: PLACES OF PUBLIC ACCOMMODATION

“The [Washington State] legislature has … directed … [the courts] to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation.” Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019) (citing RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (“quoting Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)”)). “The fundamental object of laws banning discrimination in public accommodations is to vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Id. at 855 (internal citations and quotation marks omitted).

FREEDOM FROM DISCRIMINATION–DECLARATION OF CIVIL RIGHTS (RCW 49.60.030(1)(B))

“Under RCW 49.60.030(1)(b), WLAD secures the right to ‘full enjoyment’ of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation ‘without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.'” Floeting, 192 Wn.2d at 852-53 (referencing RCW 49.60.040(14)) (hyperlink added).

MEANING OF “FULL ENJOYMENT”

Thus, “WLAD protects the customer’s ‘full enjoyment’ of the services and privileges offered in public accommodations.” Id. at 855 (citing RCW 49.60.030(1)(b)). “WLAD’s broad definition of ‘full enjoyment’ extends beyond denial of service to include liability for mistreatment that makes a person feel ‘not welcome, accepted, desired, or solicited.'” Id. (citing RCW 49.60.040(14)). “Denial or deprivation of services on the basis of one’s protected class is an affront to personal dignity.” Id. (internal citations omitted).

THE PRIMA FACIE CASE (FELL STANDARD (RCW 49.60.215))

“More than twenty years ago, … [the Washington State Supreme Court] set forth the standard for establishing a prima facie case of discrimination in a place of public accommodation under RCW 49.60.215.” Floeting, 192 Wn.2d at 853 (referencing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996)) (footnote omitted) (hyperlinks added).

“Fell established that in order to make a prima facie case of discrimination under RCW 49.60.215[ ][:]

a plaintiff must prove that

(1) the plaintiff is a member of a protected class,

(2) the defendant’s establishment is a place of public accommodation,

(3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and

(4) the plaintiff’s protected status was a substantial factor that caused the discrimination.

Floeting, 192 Wn.2d at 583-84 (citing Fell, 128 Wn.2d at 637) (internal citations omitted) (paragraph formatting, hyperlinks, and emphasis added).

LEARN MORE

September 14, 2021October 21, 2024

Independent Contractors and Gender Discrimination

Under Washington State laws, may independent contractors bring gender discrimination actions in the making and performance of contracts for personal services? Here’s my point of view.

Advertisement

INDEPENDENT CONTRACTORS: GENDER

In Washington State, “an independent contractor may bring an action for discrimination in the making or performance of [a] contract for personal services.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182 (Wash. 2018). at 192 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 100-01, 922 P.2d 43 (1996)) (alterations in original) (internal quotation marks omitted).

Such discrimination claims may be “based on sex [or gender] ….” Marquis, 130 Wn.2d at 100-01.

THE PRIMA FACIE CASE

The relevant law concerning the prima facie case is found under Washington Law Against Discrimination, RCW 49.60. However, because “RCW 49.60.030 does not provide the criteria for a prima facie claim, … [the court] crafted criteria through case law[ ][:]

[T]he plaintiff in a sex discrimination case must show (1) membership in a protected class; (2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work; (3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex.

Specialty Asphalt, 191 Wn.2d at 204 n.6 (citing Marquis, 130 Wn.2d at 113-14) (alteration in original) (emphasis and hyperlink added).

TREATED DIFFERENTLY FROM SIMILARLY SITUATED MEMBERS OF THE OPPOSITE SEX BECAUSE OF GENDER

Moreover, “[t]he Marquis case provides three examples … [of how a plaintiff–in an action for discrimination in the making and performance of an employment contract–may show that the plaintiff was treated differently from similarly situated members of the opposite sex because of plaintiff’s gender]:

[ (1) ] [T]hat he or she was denied the position,

[ (2) ] was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or,

[ (3) ] once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.

Specialty Asphalt, 191 Wn.2d at 193 (internal citation omitted) (second-fifth alterations in original).

SUMMARY JUDGMENT: EVIDENCE

CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE

“To establish discriminatory action, plaintiffs may rely on circumstantial, indirect, and inferential evidence.” Id. at 192 (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017) (“assessing a claim under RCW 49.60.180“) (internal quotation marks omitted).

SUMMARY JUDGMENT IMPROPER

Summary judgment is improper “[w]hen the record contains reasonable but competing inferences of both discrimination and nondiscrimination[ ][; in that case,] the trier of fact must determine the true motivation.” Id. at 191-92 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (citing Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 90, 272 P.3d 865 (2012))).

TOTALITY OF THE EVIDENCE

“[E]vidence should be taken together when considering whether there are ‘reasonable but competing inferences of both discrimination and nondiscrimination.'” See id. at 192 (internal citation and quotation marks omitted).

LEARN MORE

August 26, 2021October 21, 2024

The Prima Facie Case: Disparate Treatment via Direct Evidence

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the Direct Evidence Method of establishing a prima facie case of disparate treatment discrimination? Here’s my point of view.

Advertisement

DISPARATE TREATMENT

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, 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)) (hyperlink added).

“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).

THE PRIMA FACE CASE: 2 METHODS

“A plaintiff can establish a prima facie case by either[:]

[1.] offering direct evidence of an employer’s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).

This article will address the direct evidence method.

THE DIRECT EVIDENCE METHOD

Under the direct evidence method, “a plaintiff can establish a prima facie case by providing direct evidence that[:]

(1) the defendant employer acted with a discriminatory motive and

(2) the discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).

CONSIDERATIONS

» EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).

» SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).

The Prima Facie Case: Unlawful Retaliation

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for unlawful retaliation? Here’s my point of view.

Advertisement

UNLAWFUL RETALIATION

The Washington Law Against Discrimination, RCW 49.60, “prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734, 753 (Div. 2 2013) (citing RCW 49.60.210).

There are additional protections. The relevant law states as follows:

RCW 49.60.210
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.

RCW 49.60.210 (emphasis and hyperlinks added).

“Violation of this provision supports a retaliation claim.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).

THE PRIMA FACIE CASE

“To establish a prima facie case of retaliation, an employee must show that[:]

(1) he or she engaged in a statutorily protected activity,

(2) the employer took an adverse employment action against the employee, and

(3) there is a causal connection between the employee‘s activity and the employer‘s adverse action.

Id. at 574 (citing Cornwell, 192 Wn.2d at 411) (emphasis, paragraph formatting, and hyperlinks 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*

Employment-Discrimination Hotlines & Unlawful Retaliation

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.

LEARN MORE

August 1, 2021October 21, 2024

The Prima Facie Case: Reasonable Accommodations

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for failure to provide reasonable accommodations? Here’s my point of view.

Advertisement

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[:]

(1) the employee suffered from a disability,
(2) the employee was qualified to do the job at issue,
(3) the employee gave his or her employer notice of the disability, and
(4) the employer failed to reasonably accommodate that disability.

Id. (citing LaRose, 8 Wn.App.2d at 125-26) (paragraph formatting and emphasis and hyperlinks added).

TAKE OUR REASONABLE ACCOMMODATIONS TEST (VIDEO):

The Prima Facie Case: Discriminatory Discharge

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for discriminatory discharge? Here’s my point of view.

Advertisement

DISCRIMINATORY DISCHARGE (WA STATE)

“[T]he WLAD prohibits an employer from discharging an employee because of certain protected characteristics, including[, but not limited to age, sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or] a sensory, mental, or physical disability.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing RCW 49.60.180(2)).

“Violation of this provision supports a discriminatory discharge claim.” Id. (referencing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)) (internal quotation marks omitted) (hyperlink added).

THE PRIMA FACIE CASE (WA STATE)

“To make a prima facie case of discriminatory discharge, an employee must show that he or she was[:]

(1) within a statutorily protected class,

(2) discharged by the defendant, and

(3) doing satisfactory work.

Id. at 572-73 (citing Mikkelsen, 189 Wn.2d at 527) (emphasis, paragraph formatting, and hyperlinks added).

THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

ACCENT DISCRIMINATION IS NATIONAL ORIGIN DISCRIMINATION

THE NINTH CIRCUIT

CONCLUSION

LEARN MORE

WLAD: THE EIGHT-OR-MORE-EMPLOYEES RULE

THE WASHINGTON STATE HUMAN RIGHTS COMMISSION

CONCLUSION

LEARN MORE

WLAD: THE ANTIRETALIATION PROVISION

THE FUNCTIONALLY-SIMILAR TEST

EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.

CONCLUSION

READ MORE ARTICLES

LEARN MORE

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): SEXUAL HARASSMENT IN THE WORKPLACE

ELEMENT #1 — THE HARASSMENT WAS UNWELCOME

ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX

ELEMENT #3 — THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT

ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER

HOW THE EMPLOYER MAY AVOID LIABILITY

WLAD REMEDIES

READ OUR RELATED ARTICLES

LEARN MORE

THE PRIMA FACIE CASE: DISPARATE TREATMENT

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

[The Newspaper Photo]

[The Vehicle]

[The Unfair Discipline]

WLAD REMEDIES

READ OUR RELATED ARTICLES

LEARN MORE

HOSTILE WORK ENVIRONMENT (WA STATE): THE PRIMA FACIE CASE

ELEMENT 3: TERMS OR CONDITIONS OF EMPLOYMENT

Totality of the Circumstances Test

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

THE ANALYSIS: Hostile Work Environment: Element #3 (i.e., harassment affected the terms or conditions of employment):

TOTALITY-OF-THE-CIRCUMSTANCES

READ OUR RELATED ARTICLES

LEARN MORE

UNLAWFUL RETALIATION: THE PRIMA FACIE CASE

ELEMENT #2: ADVERSE EMPLOYMENT ACTION

-Federal Law

-Ninth Circuit

-U.S. Supreme Court

CONCLUSION

READ MORE ARTICLES

LEARN MORE

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

UNFAIR EMPLOYMENT PRACTICES: EMPLOYEES WITH HIV OR HEPATITIS C INFECTIONS

WLAD REMEDIES

READ MORE ABOUT THIS TOPIC

need help?

#3 — THE CIVIL RIGHTS ACT OF 1866 (§ 1981)

#2 — TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

#1 — THE WASHINGTON LAW AGAINST DISCRIMINATION

LEARN MORE

THE PRIMA FACIE CASE

ELEMENT #1 — STATUTORILY PROTECTED ACTIVITY

READ MORE

LEARN MORE

FEDERAL LAW

FEDERAL CIRCUIT COURTS: A TEST BASED UPON THE DISPARATE IMPACT BURDEN-SHIFTING SCHEME

WA STATE: FAILURE TO ACCOMMODATE RELIGIOUS PRACTICES: THE PRIMA FACIE CASE

THE 3RD ELEMENT: IMMEDIATE RISK OF ACTUAL FIRING/DEMOTION IS IRRELEVANT

LEARN MORE

DISPARATE IMPACT: THE PRIMA FACIE CASE

READ OUR RELATED ARTICLES

LEARN MORE

THE PRIMA FACIE CASE: DISABILITY-BASED HOSTILE WORK ENVIRONMENT VIA CIRCUMSTANIAL EVIDENCE

SECOND ELEMENT (UNWELCOME)

THIRD ELEMENT (BECAUSE OF DISABILITY)

FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT)

FIFTH ELEMENT (IMPUTABLE TO EMPLOYER)

READ OUR RELATED ARTICLES

LEARN MORE

WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT DISCRIMINATION

PROTECTED CLASSES

WLAD REMEDIES

LEARN MORE