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.
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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.
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