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

August 25, 2022October 21, 2024

Unlawful Employer Communications & Preemployment Activities

Under the Washington Law Against Discrimination, subsection 49.60.180(4) (Unfair Practices of Employers), what are unlawful employer communications and preemployment activities? Here’s my point of view.

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNLWAFUL EMPLOYER COMMUNICATIONS & PREEMPLOYMENT ACTIVITIES

The Washington Law Against Discrimination, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. The relevant text is as follows:

It is an unfair practice for any employer:

…

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, advertising in a foreign language is not prohibited.

RCW 49.60.180(4) (hyperlinks and emphasis added). This is not an exhaustive recitation of the law on this subject. See chapter 49.60 RCW.

REMEDIES FOR UNFAIR PRACTICES

Typically, any person deeming himself or herself injured by their employer–as strictly defined by RCW 49.60.040(11)–as a result of its commission of an unfair practice is entitled to the following:

[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 Washington Law Against Discrimination 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.).

See RCW 49.60.030(2).

CONCLUSION

The WLAD, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. Accordingly, employers are prohibited from engaging in any of these activities if they express any limitation, specification, or discrimination as to a protected class or any intent to make any such limitation, specification, or discrimination.

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August 18, 2022October 21, 2024

Hostile Work Environment: Imputing Harassment to Employer

Under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the fourth element–imputing harassment to employer–when pursuing a claim of hostile work environment? Here’s my point of view.

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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; 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**.

It is also an unfair practice for an employer to retaliate (i.e., discharge, expel, or otherwise discriminate) against person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.

Hostile work environment is an unfair practice under the WLAD.

HOSTILE WORK ENVIRONMENT

In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “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 hyperlinks added); see also Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) . This article will address the fourth element: that harassment can be imputed to the employer.

ELEMENT 4: IMPUTING HARASSMENT TO EMPLOYERS

In Glasgow v. Georgia-Pacific Corp., the Washington State Supreme Court explained how to impute harassment to employers, as follows:

[A. Owners, Managers, Partners or Corporate Officers:]
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.

[B. Supervisors or Co-Workers:]
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.

This my 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 … harassment [based on a protected class] 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 reasonable calculated to end the harassment. . . .

[C. Avoiding Liability:]
[A]n employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being . . . harassed [based on a protected class].

Id. at 407-08 (emphasis and paragraph formatting added) (last alteration in original).

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: Terms or Conditions of Employment

Hostile Work Environment: The Unwelcome Element

McDonnel Douglas Burden-Shifting Framework**

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: These are external links that will take you to our Williams Law Group Blog.)

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August 11, 2022October 21, 2024

Hostile Work Environment: The Unwelcome Element

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish the first element of the prima facie case for hostile work environment: the unwelcome element? Here’s my point of view.

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HOSTILE WORK ENVIRONMENT (HARASSMENT): THE PRIMA FACIE CASE

(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**.

ELEMENT 1: HARASSMENT WAS UNWELCOME

To establish unwelcome conduct, “the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive.” Id. (hyperlink added).

Typically, an employee’s properly drafted and submitted internal complaints about the harassment–based on a protected class–are evidence that the employee subjectively believed he/she was being harassed. Thus, such complaints can be a powerful step in establishing this element. NOTE: There are other methods of proof that are beyond the scope of this article. In any event, it’s always possible that unintended consequences may result (e.g., write-ups, termination, etc.); accordingly, it is advisable for employees to proceed with caution and promptly seek legal counsel before taking action.

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**

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: These are external links that will take you to our Williams Law Group Blog.)

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August 2, 2022October 21, 2024

Unlawful Employment Agency Practices (Title VII)

Under Title VII of the Civil Rights Act of 1964, what are unlawful employment agency practices? Here’s my point of view.

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.

Discrimination & protected classes

Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).

AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.

Retaliation

Retaliation against someone who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.

Reasonable Accommodations

Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer’s ability to conduct business.

SCOPE OF TITLE VII

Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:

• Hiring and firing;
• Compensation, assignment, or classification of workers;
• Transfer, promotion, layoff, or recall;
• Job advertisements and recruitment;
• Testing;
• Use of employer facilities;
• Training and apprenticeship programs;
• Retirement plans, leave, and benefits; or
• Other terms and conditions of employment.

U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (emphasis added).

UNLAWFUL EMPLOYMENT AGENCY PRACTICES

Employment agencies are subject to Title VII. The following are considered unlawful employment agency practices:

…

(b) Employment agency practices
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(b) (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.

(*The link will take the reader to an external website: Cornell Law School Legal Information Institute.)

TITLE VII ENFORCEMENT

“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).

Learn more about filing a charge of discrimination with the EEOC by visiting their official website.

Disparate Treatment: Pretext by Comparison

Under the McDonnell Douglas Burden-Shifting Scheme (hereinafter, “McDonnell Douglas“), may a Washington State plaintiff establish the pretext-prong by comparison, when pursuing a claim of disparate treatment? Here’s my point of view.

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MCDONNELL DOUGLAS BURDEN-SHIFTING SCHEME

In the summary judgment context, to succeed on a claim of disparate treatment using McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. See Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).

If the plaintiff states a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the challenged action. Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000) (quotation marks omitted).

If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted) (emphasis added). This last requirement is know as the prextext prong.

THE PRETEXT PRONG

Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant’s articulated reasons

(1) had no basis in fact,

(2) were not really motivating factors for its decision,

(3) were not temporally connected to the adverse employment action, or

(4) were not motivating factors in employment decisions for other employees in the same circumstances.

Id. (internal citation omitted) (emphasis and paragraph formatting added). The fourth element allows a plaintiff to prove pretext by using comparison.

PROVING PRETEXT BY COMPARISON

Accordingly, to prove pretext by comparison in Washington State, a plaintiff must show that

(1) an employee outside the protected class

(2) committed acts of comparable seriousness

(3) but was not demoted or similarly disciplined.

Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.1994)) (paragraph formatting added).

Arguably, acts of comparable seriousness need not be violations of identical company disciplinary rules. See, e.g., Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (Court previously held that “acts of comparable seriousness need not be violations of identical company disciplinary rules”) (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted).

OCCASIONAL LENIENCY NOT ENOUGH

However, plaintiffs may need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, “incomplete or arbitrary comparisons reveal nothing concerning discrimination.” Id. (internal citations omitted).

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**

» 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

» WLAD: Disparate Treatment via Hostile Work Environment

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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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Protected Classes

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

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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.

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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

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» Definition of Prima Facie Case**

» Disparate Treatment

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» Disparate Treatment vs. Disparate Impact Discrimination**

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» 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.)

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REMEDIES FOR UNFAIR PRACTICES

CONCLUSION

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

HOSTILE WORK ENVIRONMENT

ELEMENT 4: IMPUTING HARASSMENT TO EMPLOYERS

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Discrimination & protected classes

Retaliation

Reasonable Accommodations

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TITLE VII ENFORCEMENT

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MCDONNELL DOUGLAS BURDEN-SHIFTING SCHEME

THE PRETEXT PRONG

PROVING PRETEXT BY COMPARISON

OCCASIONAL LENIENCY NOT ENOUGH

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THE NINTH CIRCUIT

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CONCLUSION

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THE FUNCTIONALLY-SIMILAR TEST

EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.

CONCLUSION

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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

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THE PRIMA FACIE CASE: DISPARATE TREATMENT

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

[The Newspaper Photo]

[The Vehicle]

[The Unfair Discipline]

WLAD REMEDIES

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