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

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.

(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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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.

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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.

(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).

“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.

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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.

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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).

WLAD: Disparate Treatment via Hostile Work Environment

Under the Washington Law Against Discrimination, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment when using the direct evidence approach? 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.)

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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; 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.

DISPARATE TREATMENT

Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class.

Accordingly, 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. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by 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)). This article solely addresses the direct evidence approach.

DIRECT EVIDENCE TEST

The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:

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).

SIGNIFICANT/SUBSTANTIAL FACTOR

The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.

However, 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 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

A demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

CONCLUSION

An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment: A Closer Look**

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment vs. Disparate Impact Discrimination**

» Disparate Treatment via Hostile Work Environment**

» Disparate Treatment: Pretext by Comparison

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

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» 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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June 28, 2021October 20, 2024

Top 3 Employment Discrimination Theories

Under the Washington Law Against Discrimination (WLAD), there are several common employment-discrimination theories that plaintiffs tend to litigate. Here are my top 3 employment discrimination theories under WLAD:

(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. Some links in this article take the reader to 3rd party websites including our second website: Williams Law Group, PS. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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#3 – DISPARATE TREATMENT

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; 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.

Disparate treatment occurs when an employer treats some people less favorably than others because of membership in a protected class. See Alonso v. Qwest Communications Co., 178 Wn.App 734, 744, 315 P.3d 610 (Div. 2 2013) (internal citations omitted).

“To establish a prima facie case, the plaintiff must show that [his/her] employer simply treats some people less favorably than others because of their protected class.” Id. (internal citations omitted) (hyperlink added).

#2 – HOSTILE WORK ENVIRONMENT

Hostile work environment is also known “Harassment,” and it’s actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. See id. 749 (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

In order to establish a prima facie hostile work environment claim, the plaintiff must alleged facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)).

#3 – UNLAWFUL RETALIATION

The Washington Law Against Discrimination also prohibits retaliation against a party asserting a claim based on a perceived violation of his/her civil rights or participating in an investigation into alleged workplace discrimination. Id. at 753 (citing RCW 49.60.210).

To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action. Id. at 753-54 (internal citation 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

June 27, 2021October 20, 2024

Top 3 Reasons Unlawful Retaliation Claims Fail

In Washington State, unlawful retaliation claims fail for a variety of reasons. Unlawful retaliation is a form of unlawful employment discrimination 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.)

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WASHINGTON LAW AGAINST DISCRIMINATION: UNLAWFUL RETALIATION

The Washington Law Against Discrimination (WLAD) prohibits an employer from retaliating against a person for opposing a discriminatory practice forbidden by WLAD or for participating in a proceeding to determine whether discrimination occurred. See RCW 49.60.210.

To establish a prima facie claim of unlawful retaliation, a plaintiff must show that (1) [he/she] engaged in statutorily protected activity, (2) [his/her] employer took an adverse employment action against [him/her], and (3) there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Co., 178 Wn.App. 734, 754, 315 P.3d 610 (2013).

TOP 3 REASONS UNLAWFUL RETALIATION CLAIMS FAIL

Here’s my opinion of the top 3 reasons why unlawful retaliation claims fail in Washington State:

#3 – No Causation

A plaintiff bringing suit based on unlawful retaliation, RCW 49.60.210, must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision. Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 96 (Wash. 1991).

Two common ways (but not the only ways) to establish causation include (1) proximity in time, and (2) abrupt change in performance reviews. It should be clear how an abrupt change in performance reviews from satisfactory to poor can support an argument for causation; however, “proximity in time” requires further explanation.

“Proximity in time” supports an argument for causation if the plaintiff can show the employer’s knowledge that the plaintiff engaged in protected activities and that the proximity in time between the protected action and the allegedly retaliatory employment action is minimal.

This element can pose a problem in litigation if the employee-plaintiff is unable to argue either “proximity in time” or “change in performance reviews”, and there is no other evidence that retaliation was a substantial factor motivating the adverse employment decision.

#2 – No Adverse Employment Action

To establish an adverse employment action, “the employee must show that a reasonable employee would have found the challenged action materially adverse, meaning that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Boyd v. State, 187 Wn.App. 1, 13, 349 P.3d 864 (Div. 2 2015) (internal citations and quotation marks omitted). It includes but is not limited to a demotion or adverse transfer, or a hostile work environment. Id. (internal citations and quotation marks omitted).

The problem typically occurs when the employee alleges an adverse employment action that is merely bothersome; because a viable “adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Alonso v. Qwest Communications Co., 178 Wn.App. at 746.

#1 – No Protected Activity

An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that he reasonably believed to be discriminatory. Id. at 753.

However, a general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status. Id.

A common problem that occurs is when an employee-plaintiff either completely fails to complain of discrimination to the employer or fails to properly complain of discrimination to the employer by omitting reference to one or more specific protected classes.

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

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

June 26, 2021October 20, 2024

Top 3 Reasons Disparate Treatment Claims Fail

Under the Washington Law Against Discrimination (WLAD), disparate treatment (also known as “classic discrimination”) is a form of unlawful employment discrimination.

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

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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

WLAD makes it unlawful for an employer to discriminate against any person in compensation or in other terms or conditions of employment because of membership in certain protected classes. See Blackburn v. Department of Social and Health Services, 186 Wn.2d 250, 258, 375 P.3d 1076 (2016) (internal quotation marks omitted).

Disparate treatment is the most easily understood type of discrimination. Id. (internal quotation marks omitted). And “the elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin v. King County, 194 Wn.App. 795, 808, 378 P.3d 203, (Div. 1 2016) (referencing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (hyperlink added).

To learn more about protected classes and disparate treatment, view our YouTube videos:

MY TOP 3 REASONS DISPARATE TREATMENT CLAIMS FAIL

Here are my top 3 reasons WLAD disparate treatment claims fail (based on my point of view as an employment discrimination attorney in Washington State):

#3 – Failed to Perform Satisfactorily

One of the elements that a plaintiff must typically prove to establish a prima facie case of disparate treatment discrimination is that he/she was performing satisfactorily. Marin v. King County, 194 Wn.App. 795, 808-09, 378 P.3d 203, (Div. 1 2016) (citing Anica v. Wal-Mart Stores, Inc., 120 Wn.App. 481, 488, 84 P.3d 1231 (2004)). A history of, inter alia, poor performance reviews, suspensions, and/or write-ups, can derail a disparate treatment case.

#2 – Failed to Suffer an Adverse Employment Action

Generally, “this means a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)) (internal quotation marks omitted). Keep in mind that this is merely a sample and not an exhaustive list.

Plaintiffs alleging disparate treatment often find their claim dismissed at summary judgment, because they failed to prove that they suffered an associated adverse employment action.

#1 – Failed to Raise Reasonable Inference of Unlawful Discrimination

The plaintiff must show that the unlawful actions occurred under circumstances that raise a reasonable inference of unlawful discrimination. Id. (citing Anica v. Wal-Mart Stores, Inc., 120 Wn.App. 481, 488, 84 P.3d 1231 (2004)). The plaintiff must typically point to evidence that the employer took an adverse action against the plaintiff because of his/her protected class. See id. at 810. One way to prove this is by showing that similarly situated employees (also known as “comparators”) outside of the plaintiff’s protected class were treated more favorably.

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

June 26, 2021October 20, 2024

Behind Closed Doors: WLAD & ESD Appeals

Under Washington State law, may an employment discrimination plaintiff use favorable findings from a previous unemployment benefits appeal against the associated defendant employer, when pursuing a claim under Washington Law Against Discrimination (WLAD)? 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.)

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A COMMON ISSUE

Occasionally, one of my employment discrimination clients will vigorously attempt to convince me that they received favorable findings against their employer during their unemployment benefits appeal conducted through the Washington State Office of Administrative Hearings; and that the findings will help them win their subsequent discrimination lawsuit under WLAD. Unfortunately, I usually have bad news for those clients.

Stated differently, the issue is whether findings made by an administrative law judge (ALJ) during a Washington State unemployment benefits appeal hearing may be admitted in a separate employment discrimination lawsuit outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer?

WA STATE EMPLOYMENT SECURITY DEPARTMENT

The Washington State Employment Security Department (ESD) was created in 1939. Its mission is to “partner to connect employers and job seekers – supporting transitions to new jobs and empowering careers.”

If an individual applies for unemployment benefits through the ESD and is denied; then the individual can request an appeal. In that case, the ESD will forward the appeal to the Washington State Office of Administrative Hearings (OAH) which is not part of the ESD. The OAH will then assign an administrative law judge to hear the case.

TITLE 50 RCW

The Washington State laws relating to the ESD are contained in Title 50 RCW, and the relevant law states as follows:

Any finding, determination, conclusion, declaration, or final order made by the commissioner, or his or her representative or delegate, or by an appeal tribunal, administrative law judge, reviewing officer, or other agent of the department for the purposes of Title 50 RCW, shall not be conclusive, nor binding, nor admissible as evidence in any separate action outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts or was reviewed pursuant to RCW 50.32.120.

RCW 50.32.097 (emphasis and hyperlink added).

CONCLUSION

Findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing are generally not admissible in a subsequent WLAD employment discrimination lawsuit (before an arbitrator, court, or judge) outside the scope of Title 50 RCW between the employee and the employee’s present or prior employer.

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June 26, 2021October 20, 2024

WLAD Civil Suits & Administrative Actions

Under the Washington Law Against Discrimination (WLAD), may plaintiffs bring private civil suits through administrative actions and associated appeals? 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.)

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THE WASHINGTON LAW AGAINST DISCRIMINATION

“Washington’s law against discrimination, chapter 49.60 RCW, is a broad remedial statute, the purpose of which is to eliminate and prevent discrimination on the basis of” specific protected classes. Rhoades v. Department of Labor and Industries, 143 Wn.App. 832, 181 P.3d 843 (Wash.App. Div. 3 3008) (citing RCW 49.60.010).

THE CIVIL SUIT REQUIREMENT

“[WLAD] declares that the right to be free from such discrimination is a civil right enforceable by private civil action by members of the enumerated protected classes.” Id. (citing RCW 49.60.030(1), (2)) (emphasis added).

The issue is whether an administrative proceeding is considered a civil action for purposes of WLAD claims. The Washington State Court of Appeals addressed this issue in Rhoades v. Department of Labor and Industries. Id.

EXAMPLE: RHOADES v. DEPARTMENT OF LABOR AND INDUSTRIES

In Rhoades, plaintiff Tammy Rhoades “filed a claim with the Department [of Labor and Industries] after she was injured in the course of employment[.]” Rhoades, 143 Wn.App. at 836. “The Department awarded her a permanent partial disability benefit.” Id. She appealed, and “in March 2001, the Department determined that Ms. Rhoades was totally disabled and she was placed on the pension rolls.” Id. “The Department affirmed this order after reconsideration in September 2002.” Id.

However, “Ms. Rhoades disagreed with the Department’s calculation of her monthly pension amount [and] appealed the September 2002 pension order to the Board of Industrial Appeals (Board).” Id. In 2004, “the Board found that the Department’s September 2002 order was correct” except for a small interest calculation. Id. at 837.

Plaintiff Rhoades “appealed to the superior court, which affirmed the Board’s order.” Id. She then appealed to Division 3 of the Washington State Court of Appeals wherein she included, inter alia, a claim that the Department violated the Washington Law Against Discrimination, RCW 49.60. Id. at 835-36. The court of appeals found that “an administrative action and appeal is an inappropriate vehicle for” claims under RCW 49.60. Id. at 845 (emphasis added). “[A] civil suit is required.” Id.

CONCLUSION

Under the Washington Law Against Discrimination (WLAD), plaintiffs cannot bring private civil suits through administrative actions and associated appeals.

DISPARATE TREATMENT

THE PRIMA FACE CASE: 2 METHODS

THE DIRECT EVIDENCE METHOD

CONSIDERATIONS

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DISCRIMINATORY DISCHARGE (WA STATE)

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#3 – DISPARATE TREATMENT

#2 – HOSTILE WORK ENVIRONMENT

#3 – UNLAWFUL RETALIATION

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A COMMON ISSUE

WA STATE EMPLOYMENT SECURITY DEPARTMENT

TITLE 50 RCW

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