The Rundown

» Law & Logic: Argumentum Ad Antiquitam (Appeal to Tradition)

» Law & Logic: Argumentum Ad Baculum (Appeal to Force)

» Law & Logic: Argumentum Ad Ignorantium (Appeal to Ignorance)

» Law & Logic: Argumentum Ad Vercundiam (Appeal to Authority)

» Law & Logic: Confirmation Bias & Sunk Cost Fallacy

» Law & Logic: Cum Hoc Ergo Propter Hoc (False Cause)

» Law & Logic: Fallacy of the Inverse (Denying the Antecedent)

» Law & Logic: Ignoratio Elenchi (Irrelevant Conclusion)

» Law & Logic: Petitio Principii (Circular Reasoning)

» Law & Logic: Single Cause Fallacy (Complex Cause)

September 29, 2026October 1, 2026

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If you would like to learn more, then consider contacting an experienced employment 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

Elements of Negligent Misrepresentation

Under Washington State laws, what are the elements of negligent misrepresentation? 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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ELEMENTS OF NEGLIGENT MISREPRESENTATION

In Washington State, negligent misrepresentation is a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.

“To prevail on … [a negligent misrepresentation claim], a plaintiff must prove, by clear, cogent, and convincing evidence that[:]

(1) the defendant supplied information for the guidance of others in their business transactions that was false,

(2) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions,

(3) the defendant was negligent in obtaining or communicating the false information,

(4) the plaintiff relied on the false information,

(5) the plaintiff’s reliance was reasonable, and

(6) the false information proximately caused the plaintiff damages.

Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 196-97 (Wash. 2018) (citing Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (“Washington has adopted Restatement (Second) of Torts § 552 (Am. Law Inst. 1965)”)) (hyperlink added).

JUSTIFIABLE RELIANCE: AN ISSUE OF FACT

“Whether a party justifiably relied upon a misrepresentation is an issue of fact.” Specialty Asphalt, 191 Wn.2d at 198 (citing ESCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820, 828, 959 P.2d 651 (1998)).

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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.

September 24, 2026October 1, 2026

Law & Logic: Affirming the Consequent

In logic, what does the term “Affirming the Consequent” mean, and how does it apply to employment-law trial lawyers handling workplace disputes? Here’s my point of view.

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Affirming the Consequent: A Logical Fallacy in Employment Litigation

The Basic Fallacy

“Affirming the consequent” is a logical error that occurs when someone assumes that a particular result proves a particular cause.

For example:

If it rains, the sidewalk will be wet.

The sidewalk is wet.

Therefore, it rained.

Not necessarily. A sprinkler, hose, or other source could have made the sidewalk wet.

The mistake is treating an effect as proof of one particular cause when other explanations are possible.

video Example: Affirming the Consequent

How It Arises in Employment Cases

Employment litigation often involves competing explanations for an employer’s actions. An employee may claim that a termination was discriminatory or retaliatory, while the employer may contend that it resulted from legitimate performance or workplace concerns.

Affirming the consequent can occur when either side reasons:

The evidence is consistent with my explanation; therefore, my explanation must be the reason it happened.

For example, an employee’s poor performance may be consistent with an employer’s legitimate explanation for termination. But that fact alone does not necessarily resolve whether unlawful discrimination or retaliation also played a role.

Conversely, evidence that an employee received unusually negative treatment may be consistent with discrimination, but it does not by itself establish that discrimination caused the treatment.

The Trial Lawyer’s Question

The better question is:

What other explanations could account for this same evidence, and what evidence distinguishes among them?

That question can sharpen discovery, depositions, cross-examination, and closing argument.

A lawyer should distinguish between evidence that is merely consistent with a theory and evidence that actually supports the required causal connection under the applicable legal standard.

Closing Argument

The lesson of affirming the consequent is simple: an effect does not necessarily prove its cause.

For employment-law trial lawyers, recognizing this fallacy is a useful way to test both sides’ theories. The goal is not merely to show that the evidence fits a client’s explanation, but to explain why the evidence supports that explanation when considered alongside the reasonable alternatives.

In trial, asking “What does this fact actually prove?” can be just as important as asking “What happened?”

Read Our Related Articles

» How Lawyers Utilize Deductive and Inductive Reasoning

» Law & Logic: Argumentum Ad Antiquitam (Appeal to Tradition)

» Law & Logic: Argumentum Ad Baculum (Appeal to Force)

» Law & Logic: Argumentum Ad Ignorantium (Appeal to Ignorance)

» Law & Logic: Argumentum Ad Vercundiam (Appeal to Authority)

» Law & Logic: Confirmation Bias & Sunk Cost Fallacy

» Law & Logic: Cum Hoc Ergo Propter Hoc (False Cause)

» Law & Logic: Fallacy of the Inverse (Denying the Antecedent)

» Law & Logic: Ignoratio Elenchi (Irrelevant Conclusion)

» Law & Logic: Petitio Principii (Circular Reasoning)

» Law & Logic: Single Cause Fallacy (Complex Cause)

September 21, 2026September 24, 2026

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–gw

Cat’s Paw Theory of Liability (WA State)

Cat's Paw Theory of Liability (WA State)

In Washington State, what is the cat’s paw theory of liability? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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CAT’S PAW THEORY OF LIABILITY — SUBORDINATE BIAS LIABILITY

In Washington State, the “cat’s paw” theory of liability is consistent with the law on subordinate bias liability. See Boyd v. State*, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015). “Under the cat’s paw theory, the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker.” Id.* at 21 n.1 (citing Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)).

THE GENERAL RULE

The general rule is as follows:

[I]f a supervisor* performs an act motivated by … animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.

Id.* at 20 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (footnote omitted)) (alteration in original) (internal quotation marks omitted) (emphasis and hyperlink added). Note: the term proximate cause is undefined.

PROXIMATE CAUSE

“Under Washington law, in order for the act to be a proximate cause, it must be a substantial factor.” Id.* (citing City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn.App. 333, 356, 325 P.3d 213 (2014) (“a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus was a substantial factor in the decision”)) (internal quotation marks omitted) (emphasis added).

INDEPENDENT INVESTIGATIONS & CAUSATION

Oftentimes, the employer-defendant under a cat’s paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless: “[A]n independent investigation does not necessarily relieve the employer of liability for an adverse employment action.” Id.* (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011)).

If the independent investigation “relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor.” Id.* at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.*

However: “[I]f the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action … then the employer will not be liable.” Id.* at 18 (citing Staub, 131 S.Ct. at 1193) (alteration in original).

ORIGINS OF CAT’S PAW THEORY OF LIABILITY

“The term ‘cat’s paw’ originated in the fable, ‘The Monkey and the Cat,’ by Jean de La Fontaine[:]

As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.

Id.* at 21 n.1 (citing Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)], 51 Washburn L.J. 159, 159 (2011) (footnotes omitted)) (citation alteration in original).

THE CAT & THE MONKEY

“In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey.” Id.* (citing Edward G. Phillips, Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).

READ OUR RELATED ARTICLES

» Intentional Infliction of Emotional Distress & Supervisors*

» Suing Co-Workers for Hostile Work Environment (Harassment)*

» Suing Supervisors for Discrimination in Washington*

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September 17, 2026October 1, 2026

Law & Logic: Fallacy of the Inverse (Denying the Antecedent)

In logic, what does the term Fallacy of the Inverse (Denying the Antecedent) mean, and how does it apply to employment-law trial lawyers handling workplace disputes? Here’s my point of view.

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Denying the Antecedent: A Logical Pitfall in Employment-Discrimination Cases

Employment-discrimination litigation frequently requires attorneys to draw conclusions from incomplete or circumstantial evidence. One logical error worth recognizing is the fallacy of the inverse, commonly called denying the antecedent. Understanding this error can help trial attorneys identify weaknesses in an opponent’s reasoning—and avoid making the same mistake themselves.

What Does “Denying the Antecedent” Mean?

The fallacy occurs when someone reasons:

- If A happens, then B will happen.
- B did not happen.
- Therefore, A did not happen.

The conclusion does not necessarily follow because B may not be the only possible result of A.

For example:

If it rains, the sidewalk becomes wet.
The sidewalk is not wet.
Therefore, it did not rain.

The sidewalk could have dried before anyone examined it. Thus, the absence of a wet sidewalk does not establish that there was no rain.

video Example: Fallacy of the Inverse (Denying the Antecedent)

The Employment-Law Connection

A similar mistake can arise when evaluating alleged discriminatory intent. Consider an employer‘s argument:

“If discrimination motivated the decision, the decision-maker would have made an explicitly discriminatory statement. No such statement was made. Therefore, discrimination was not a factor.”

That reasoning assumes that discriminatory intent necessarily produces an overt remark. It does not. Depending on the circumstances and applicable law, discriminatory intent may be inferred from a combination of facts, including differing treatment, shifting explanations, unusual departures from established practices, timing, or other circumstantial evidence.

The same caution applies to plaintiffs‘ counsel. An attorney should not assume that the absence of one expected fact conclusively disproves the employer’s explanation. The question is whether the evidence, considered as a whole, supports the inference the attorney wants the factfinder to draw.

A Useful Trial-Attorney Question

The concept provides a practical way to test arguments during discovery and trial preparation:

Is the missing fact truly required if the opposing party’s theory is correct, or is it merely something we might expect to see?

That distinction can be particularly important when dealing with circumstantial evidence. The absence of a discriminatory comment, for example, may be relevant, but it does not automatically resolve the question of motive.

Attorneys can apply the same test to their own theories. Before arguing that one fact disproves another proposition, counsel should examine whether the proposed conclusion actually follows logically.

Closing Argument

Recognizing “denying the antecedent” does not decide an employment-discrimination claim. The governing statute, controlling precedent, burdens of proof, and evidentiary record remain determinative.

The logical principle nevertheless provides a useful litigation tool. It reminds attorneys and factfinders that the absence of one piece of evidence does not necessarily establish that the underlying event or motive did not exist. In cases where intent must be inferred from multiple circumstances, recognizing that distinction can help attorneys—and courts—evaluate the evidence with greater care and precision.

Read Our Related Articles

» How Lawyers Utilize Deductive and Inductive Reasoning

» Law & Logic: Argumentum Ad Antiquitam (Appeal to Tradition)

» Law & Logic: Argumentum Ad Baculum (Appeal to Force)

» Law & Logic: Argumentum Ad Ignorantium (Appeal to Ignorance)

» Law & Logic: Argumentum Ad Vercundiam (Appeal to Authority)

» Law & Logic: Confirmation Bias & Sunk Cost Fallacy

» Law & Logic: Cum Hoc Ergo Propter Hoc (False Cause)

» Law & Logic: Ignoratio Elenchi (Irrelevant Conclusion)

» Law & Logic: Petitio Principii (Circular Reasoning)

» Law & Logic: Single Cause Fallacy (Complex Cause)

September 15, 2026September 17, 2026

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–gw

WA Code of Judicial Conduct: Bias, Prejudice, and Harassment

b WA Code of Judicial Conduct: Bias, Prejudice, and Harassment

Under the Washington Code of Judicial Conduct (hereinafter ,”CJC”), to what extent must a full‑time judge actively identify, prevent, and address bias, prejudice, or harassment while carrying out judicial duties? Here’s my point of view.

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Bias, Prejudice, and Harassment Under Washington’s Code of Judicial Conduct (Canon 2, Rule 2.3)

Washington’s Code of Judicial Conduct* (CJC) requires full‑time judges to do more than avoid discriminatory behavior. The rules place an affirmative responsibility on judges to recognize when bias or harassment is occurring, to stop it, and to prevent it from shaping the courtroom environment. This duty is central to maintaining public confidence in the fairness of the justice system, and it is reinforced by the associated CJC* comments section, as follows:

[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.

WA State CJC*, Canon 2, Rule 2.3, comment 1 (emphasis added).

What the Rules Protect Against

Washington’s judicial‑conduct rules bar judges from engaging in behavior that treats people differently because of personal characteristics, and they also require judges to stop others (i.e., court staff, court officials, or others subject to judge’s direction and control; and parties, witnesses, lawyers, or others) from doing so. These protections are intentionally broad. They cover traits such as race, color, gender, gender identity, sexual orientation, religion, national origin, disability, age, and financial circumstances. The purpose is straightforward: everyone who enters a courtroom should be treated with equal dignity, regardless of background or identity.

The rules also prohibit harassment, which is understood to include behavior or language that demeans, targets, or expresses hostility toward someone based on these characteristics. This includes obvious misconduct, like insults or slurs, but it also reaches more subtle forms of disrespect that can influence how participants experience the process. The standard is designed to protect both the fairness of the proceeding and the dignity of the individuals involved.

the meaning of bias, prejudice, and harassment

The CJC clarifies the meaning of the terms bias, prejudice, and harassment, as follows:

[2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.

[3] Harassment, as referred to in paragraphs (B) and (C)[–see “Black Letter Law” section, below–]is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.

[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

Id.* at comments 2-4 (emphasis added).

A Judge’s Duty to Step In

A defining feature of Washington’s approach is that judges cannot remain passive observers. When discriminatory conduct arises — whether from an attorney, litigant, witness, juror, or court staff — the judge is expected to take reasonable steps to address it. That may involve interrupting inappropriate remarks, redirecting questioning, correcting unequal treatment, or giving instructions that reinforce the expectation of respectful behavior.

The responsibility is both supervisory and corrective. Judges are expected to shape the courtroom environment in real time, ensuring that proceedings remain fair and respectful for everyone involved.

When Sensitive Characteristics Are Relevant

There are situations where a judge must discuss characteristics such as race, gender, or disability because the law requires it. For example, discrimination claims, statutory definitions, or credibility assessments may involve these topics. The CJC* recognizes this reality. What matters is the purpose: the discussion must be tied to the legal or factual issues before the court, not personal views or stereotypes. According to the CJC*:

[5] “Bias or prejudice” does not include references to or distinctions based upon race, color, sex, religion, national origin, disability, age, marital status, changes in marital status, pregnancy, parenthood, sexual orientation, or social or economic status when these factors are legitimately relevant to the advocacy or decision of the proceeding, or, with regard to administrative matters, when these factors are legitimately relevant to the issues involved.

Id.* at comment 5 (emphasis added).

The Obligation Extends Beyond Hearings

Judicial duties are not limited to trials and hearings. The expectation of impartiality and respectful conduct applies to all judicial activities, including administrative responsibilities, interactions with court staff, and public‑facing functions. A judge’s behavior in any official capacity influences how the public perceives the justice system, and the CJC* requires judges to uphold these standards wherever their role places them.

THE BLACK-LETTER LAW

For purposes of this article, the relevant portion of the CJC* is Canon 2*, as follows:

A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY.

Id. Canon 2* contains, inter alia, Rule 2.3 (Bias, Prejudice, and Harassment) that states as follows:

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making reference to factors that are relevant to an issue in a proceeding.

Id.*

Conclusion

I believe Washington’s Code of Judicial Conduct requires judges to be active stewards of fairness. They must recognize and prevent discriminatory behavior, intervene when it occurs, and maintain an environment where every participant is treated with dignity. These obligations reinforce a simple but essential principle: justice depends not only on the decisions judges make, but also on the atmosphere in which those decisions are reached.

*All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website.

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–gw

September 10, 2026October 1, 2026

Law & Logic: Conjunction Fallacy

In logic, what does the term Conjunction Fallacy mean, and how does it apply to employment-law trial lawyers handling workplace disputes? Here’s my point of view.

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The Conjunction Fallacy in Employment-Discrimination Litigation

Employment-discrimination cases often require judges and juries to evaluate competing explanations for an employer’s conduct. One subtle reasoning error can affect that evaluation: the conjunction fallacy.

Understanding the fallacy can help employment lawyers identify weak inferences, challenge overly complicated narratives, and present evidence in a way that keeps the factfinder focused on what the law actually requires.

What Is the Conjunction Fallacy?

In logic and probability, the conjunction fallacy occurs when someone concludes that two events occurring together are more likely than either event occurring alone.

Consider this simple example:

Imagine you are told that Sarah is an attorney who frequently volunteers at a local legal-aid clinic. You are then asked which statement is more likely:

1. Sarah is an attorney.

2. Sarah is an attorney who volunteers at a legal-aid clinic.

The second statement may sound more convincing because it fits the description of Sarah more closely. But it cannot be more likely than the first statement. Every attorney who volunteers at the clinic is, by definition, an attorney. The second statement therefore describes a smaller group and must be equally or less likely.

This is the conjunction fallacy: a more detailed story can feel more probable simply because it is more vivid or coherent, even though the added details actually make the overall proposition less likely.

That distinction can be important in litigation, where a factfinder may find a complicated explanation especially persuasive simply because all of its pieces seem to fit together.

video Example: Conjunction Fallacy

Why Does It Matter in Employment Cases?

Employment-discrimination litigation frequently involves competing explanations for a decision. An employer may argue that an employee was terminated because of poor performance, attendance problems, insubordination, restructuring, or some other legitimate reason. The employee may contend that the stated reason is pretext for discrimination or retaliation.

A conjunction-fallacy problem can arise when a factfinder implicitly requires a plaintiff to establish an elaborate chain of connected circumstances before accepting an inference of discrimination.

For example, a jury might reason:

“The supervisor disliked the employee, the supervisor knew about the employee’s protected characteristic, the supervisor made an insensitive comment, the employee later received discipline, and the employer ultimately terminated the employee. Therefore, discrimination must have motivated the termination.”

That conclusion may or may not be justified by the evidence. The important point is that the lawyer should distinguish between individual pieces of evidence and the proposition the jury is ultimately being asked to find.

Adding more links to a narrative does not automatically make the overall inference stronger. Each additional proposition must itself be supported, and the combined theory should be tested rather than accepted merely because it tells a coherent story.

A Trial Lawyer’s Practical Lesson

For plaintiffs’ lawyers, the conjunction fallacy is a reminder not to overbuild the case. A persuasive discrimination case does not necessarily require proving every conceivable discriminatory motive, every questionable workplace event, and every interpersonal conflict.

For defense lawyers, the same principle can work in the opposite direction. A defense may become unnecessarily complicated if it depends on the jury accepting several independent propositions simultaneously—for example, that multiple witnesses independently misunderstood an event, that several decision-makers acted consistently for unrelated reasons, and that a series of adverse actions just happened to coincide with protected activity.

In either direction, counsel should ask:

What proposition am I actually asking the factfinder to accept, and how many additional propositions must be true before that conclusion follows?

Keep the Inference Narrow

The conjunction fallacy is not a rule of evidence, nor does it establish whether particular evidence is legally sufficient to prove discrimination. It is better understood as a reasoning tool.

In closing argument, deposition questioning, and motions practice, lawyers can use that tool to separate a compelling narrative from a logically supported inference. A story may become more detailed as evidence accumulates, but detail alone does not establish causation or discriminatory intent.

The strongest trial presentation therefore keeps the inferential chain clear: identify the decision, identify the relevant evidence, connect that evidence to the legally required element, and avoid asking the factfinder to accept unnecessary assumptions along the way.

Read Our Related Articles

» How Lawyers Utilize Deductive and Inductive Reasoning

» Law & Logic: Argumentum Ad Antiquitam (Appeal to Tradition)

» Law & Logic: Argumentum Ad Baculum (Appeal to Force)

» Law & Logic: Argumentum Ad Ignorantium (Appeal to Ignorance)

» Law & Logic: Argumentum Ad Vercundiam (Appeal to Authority)

» Law & Logic: Confirmation Bias & Sunk Cost Fallacy

» Law & Logic: Cum Hoc Ergo Propter Hoc (False Cause)

» Law & Logic: Fallacy of the Inverse (Denying the Antecedent)

» Law & Logic: Ignoratio Elenchi (Irrelevant Conclusion)

» Law & Logic: Petitio Principii (Circular Reasoning)

» Law & Logic: Single Cause Fallacy (Complex Cause)

September 7, 2026September 10, 2026

LEARN MORE

–gw

The Tort of Outrage and Racially Discriminatory Action

Under Washington State law, can racially discriminatory action in employment form the basis for the tort of outrage (hereinafter, “tort of outrage” or “intentional infliction of emotional distress”)? Here’s my point of view.

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

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THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. The tort of outrage is one type of tort (also known as intentional infliction of emotional distress). It is defined under the Restatement (Second) of Torts § 46, as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.”

Contreras v. Crown Zellerbach Corp.*, 88 Wn.2d 735, 745, n. 1, 565 P.2d 1173 (Wash. 1977) (emphasis added).

The Tort of Outrage and Racially Discriminatory Action

RACIALLY DISCRIMINATORY ACTION & THE TORT OF OUTRAGE

Racially discriminatory action can form the basis for a claim of outrage. According to the Washington State Supreme Court:

In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.

Id.* at 739, 565 P.2d 1173 (emphasis added). Within the context of employment discrimination, positions of authority are significant when evaluating associated claims based on the tort of outrage.

Positions of authority

“When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior.” Contreras*, 88 Wn.2d at 741, 565 P.2d 1173 (citing Restatement (Second) of Torts § 46 comment e). Thus, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. (internal citations omitted).

CONCLUSION

In conclusion, I believe racially discriminatory actions in employment can form the basis for the tort of outrage. The tort of outrage, or intentional infliction of emotional distress, is a crucial legal framework for addressing severe emotional harm caused by extreme and outrageous conduct. Defined under the Restatement (Second) of Torts § 46, this tort highlights the accountability of individuals whose actions lead to significant emotional distress, even in the absence of physical injury.

Notably, racially discriminatory actions can serve as a foundation for such claims, as established by Washington case law. Furthermore, the dynamics of authority between the parties play a vital role in evaluating these claims, emphasizing that abusive behavior from those in positions of power can significantly exacerbate the impact of the distress. Depending on the circumstances of each case, understanding these elements may be useful for adequately addressing the complexities of emotional distress claims in civil law.

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September 3, 2026October 1, 2026

Law & Logic: Complex Question (False Dilemma)

In logic, what does the term Complex Question (False Dilemma) mean, and how does it apply to employment-law trial lawyers handling workplace disputes? Here’s my point of view.

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Complex Questions and False Dilemmas in Employment Discrimination Litigation

Employment discrimination cases often turn on a basic question: Why did the employer make the challenged employment decision?

The answer is rarely as simple as the parties’ competing arguments suggest. Two related logical errors—the complex question and the false dilemma—can cause a disputed issue to appear more settled than the evidence actually establishes.

What Is a Complex Question?

A complex question, also known as a loaded question, incorporates an assumption that has not been established.

For example:

“Have you stopped violating the company’s policy?”

The question assumes that the person previously violated the policy. A witness who disputes that premise should not have to accept it simply to answer the question.

In litigation, the same problem can arise when an attorney’s question assumes a disputed fact concerning an employee’s conduct, the employer’s motive, or the circumstances surrounding an adverse employment action.

What Is a False Dilemma?

A false dilemma, or false dichotomy, occurs when an argument presents two alternatives as though they are the only possible explanations.

For example:

“The employee was either terminated for poor performance or because of discrimination.”

That may be an artificial choice. Depending on the evidence and applicable law, an employment decision may involve multiple considerations, and the parties may dispute which considerations actually influenced the decision.

The factfinder‘s task is not necessarily to choose between the two explanations offered by counsel. It is to evaluate the evidence under the governing legal standard.

video Example: Complex Question (False Dilemma)

Application to Employment Discrimination Litigation

These problems frequently arise when an employer asserts a legitimate, nondiscriminatory reason* for an employment action and the employee argues that the explanation is pretextual* or that discrimination also influenced the decision.

Suppose an employer claims an employee was terminated for performance problems. The employee presents evidence of inconsistent explanations, unequal treatment of comparable employees, departures from established procedures, or statements suggesting discriminatory bias.

An argument that effectively says “there was a performance concern, therefore there was no discrimination” may create a false dilemma. Conversely, an argument that “the employer’s explanation was inconsistent, therefore discrimination is proven” may also oversimplify the analysis.

The appropriate inquiry is what the evidence, considered as a whole, establishes under the applicable law.

Implications for Cross-Examination

Cross-examination depends on leading questions, but leading questions should not be confused with questions that improperly assume the disputed conclusion.

Instead of asking:

“Poor performance was the reason for the termination, correct?”

counsel can establish the underlying facts:

- - What performance concerns existed?
  - When were they documented?
  - How were similarly situated employees treated?
  - What explanation was given when the decision was made?
  - Did that explanation later change?
  - Who participated in the decision?

Breaking the issue into factual components can expose weaknesses in testimony without requiring the witness to accept counsel’s premise.

A Tool for Both Sides

Plaintiff‘s attorneys can use these concepts to challenge attempts to portray discrimination claims as requiring a direct admission of bias.

Defense attorneys can use them to challenge attempts to convert ordinary management disagreements, inconsistent decisions, or questionable business judgments into automatic proof of discrimination.

For both sides, the objective is the same: separate disputed facts from assumptions and avoid artificial either-or arguments.

Conclusion

Employment discrimination litigation often involves competing explanations for the same decision, but the law does not require a case to fit neatly into an either-or narrative. The strength of an attorney’s analysis depends in part on recognizing when a question or argument has quietly assumed a disputed fact or narrowed the available explanations without evidentiary justification.

For trial counsel, identifying a complex question or false dilemma is more than an exercise in logic. It can affect how discovery is conducted, how depositions are structured, how witnesses are examined, and how the evidence is ultimately presented to the jury or other factfinder. Counsel who separates assumptions from established facts can expose gaps in an opponent’s theory while avoiding the same analytical traps on their own side.

Ultimately, these concepts encourage a disciplined approach to employment cases: identify the actual factual disputes, test each proposed explanation against the evidence, and resist conclusions that depend on an unsupported premise or an artificial choice. That approach allows the factfinder to evaluate the employer’s decision and the surrounding evidence on their merits rather than through a framework imposed by the parties’ rhetoric.

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