The Rundown

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

McDonnel Douglas Burden-Shifting Framework*

WLAD: Disparate Treatment via Hostile Work Environment

WLAD: Imputing Harassment to Employers*

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September 5, 2024October 21, 2024

Adverse Employment Actions: A Closer Look

Under Washington State laws, what are considered adverse employment actions when pursuing a claim of unlawful retaliation? Here’s my point of view.

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UNLAWFUL RETALIATION — THE PRIMA FACIE CASE

“To establish a prima facie case of retaliation for a protected activity under the [Washington Law Against Discrimination,] … an employee must show that[:]

(1) he 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.

Boyd v. State*, 187 Wn.App. 1, 11-12, 349 P.3d 864 (Div. 2 2015) (citing Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 797, 120 P.3d 579 (2005); Scrivener v. Clark Coll.*, 181 Wn.2d 439, 446, 334 P.3d 541 (2014)) (hyperlinks added) (footnote omitted).

ELEMENT #2 — ADVERSE EMPLOYMENT ACTION

Within the context of unlawful retaliation claims, “[a]n adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Boyd*, 187 Wn.App. at 13 (citing Alonso v. Qwest Commc’ns Co.*, 178 Wn.App. 734, 746, 315 P.3d 610 (2013)).

THE GENERAL STANDARD

To establish an adverse employment action, “[t]he 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.'” Id. (citing Burlington N., 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation marks and citations omitted).

Ultimately, “whether a particular action would be viewed as adverse by a reasonable employee is a question of fact appropriate for a jury.” Id. at 13-14 (citations omitted).

Demotions, Adverse Transfers, or Hostile Work Environments

An adverse employment action “includes[, but is not limited to,] a demotion or adverse transfer, or a hostile work environment.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004) (quoting Robel v. Roundup Corp.*, 148 Wn.2d 35, 74 n.24, 59 P.3d 611 (2002))).

Materially Adverse Reassignments

“Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position.'” Id. (citing Tyner v. Dep’t of Soc. & Health Servs., 137 Wn.App. 545, 565, 154 P.3d 920 (2007)) (internal quotation marks and citations omitted).

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» Definition of Prima Facie Case*

» Employment-Discrimination Hotlines & Unlawful Retaliation

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» 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

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August 29, 2024October 21, 2024

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.

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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)*

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August 22, 2024October 21, 2024

Discrimination Because of Marital Status (WSHRC)

Under the Washington State Human Rights Commission regulations, what is the rule concerning discrimination because of marital status? Here’s my point of view.

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THE WASHINGTON STATE HUMAN RIGHTS COMMISSION

Created by the Washington State Legislature in 1949, the Washington State Human Rights Commission (WSHRC) is a key state agency tasked with both administering and enforcing the Washington Law Against Discrimination (WLAD). See Washington State Human Rights Commission Website, https://www.hum.wa.gov/about-us* (last visited August 21, 2024). Its “mission … is to eliminate and prevent discrimination in Washington State through the fair application of the law, efficient use of resources, and establishment of productive partnerships in the community.” Id.

DISCRIMINATION BECAUSE OF MARITAL STATUS

WSHRC regulations are contained under Title 162 WAC* (WAC is the acronym for Washington Administrative Code). The general rule concerning discrimination because of marital status is found therein, as follows:

WAC 162-16-250
Discrimination because of marital status.

(1) General rule. It is an unfair practice to discriminate against an employee or job applicant because of marital status. Examples of unfair practices include, but are not limited to:

(a) Refusing to hire a single or divorced applicant because of a presumption that “married persons are more stable.”

(b) Refusing to promote a married employee because of a presumption that he or she “will be less willing to work late and travel.”

WAC 162-16-250(1)* (hyperlinks and paragraph formatting added).

EXCEPTIONS TO THE RULE

There are exceptions to the general rule, as follows:

WAC 162-16-250
Discrimination because of marital status.

…

(2) Exceptions to the rule. There are narrow exceptions to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of marital status:

(a) If a bona fide occupational qualification applies (please see WAC 162-16-240*).

(b) If an employer is enforcing a documented conflict of interest policy limiting employment opportunities on the basis of marital status:

(i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;

(ii) Where one spouse would be responsible for auditing the work of the other;

(iii) Where other circumstances exist which would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer’s interest and their own; or

(iv) Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies, or others with whom the employer deals.

WAC 162-16-250(2)* (hyperlinks and paragraph formatting added).

WLAD REMEDIES

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the WLAD] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter* or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601* et seq.).” RCW 49.60.030(2)*.

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Definition of Marital Status (WLAD)

» Remedies for Breach of Conciliation Agreements*

» The Intersection of WSHRC and EEOC*

» The Washington State Human Rights Commission*

» WA State Human Rights Commission: Functions, Powers, Duties

» WA State Human Rights Commission: Damages for Humiliation & Suffering*

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August 15, 2024October 21, 2024

The Litigation Privilege (WA State)

In Washington State, what is the litigation privilege? Here’s my point of view.

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THE LITIGATION PRIVILEGE (WA STATE)

In Washington State, “[t]he ‘litigation privilege’ is a judicially created privilege that protects participants—including attorneys, parties, and witnesses—in a judicial proceeding against civil liability for statements they make in the course of that proceeding.” Young v. Rayan, 27 Wn.App. 2d 500, 533 P.3d 123 (Wash. App. 2023), review denied, 2 Wash.3d 1008 (Wash. 2023) (internal citations omitted).

witness immunity

When applied to witnesses, this privilege is often referred to as “witness immunity.” See id. Under this principle, witnesses in judicial proceedings are generally granted absolute immunity from legal action based on their testimony, provided their statements are related to the litigation at hand. See id. “Statements are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.” Id. (internal citation and quotation marks omitted).

EXCEPTIONS TO THE PRIVILEGE

However, statements that are unrelated to the litigation do not receive this protection; not every incidental remark made in court will escape liability. See id. But the threshold for determining relevance is not overly stringent: “As the Restatement (Second) of Torts indicates, a statement ‘need not be strictly relevant to any issue’ so long as it bears ‘some reference to the subject matter of the … litigation.'” Id. (citing RESTATEMENT § 586, comment c).

THE GENERAL RULE

Thus, the Litigation Privilege “prohibits liability stemming from statements

(1) made in the course of a judicial proceeding

(2) that are pertinent to the litigation.

Id. “Pertinency is a question of law reviewed de novo.” Id. (internal citation omitted).

THE POLICY

“The purpose of the litigation privilege doctrine is to encourage frank, open, untimorous argument and testimony and to discourage retaliatory, derivative lawsuits.” Id.

ATTORNEYS

“As applied to attorneys, it furthers ‘a public policy of securing to [counsel] as officers of the court the utmost freedom in their efforts to secure justice for their clients.’” Id. (internal quotation marks and citations omitted) (alteration in original).

WITNESS TESTIMONY

“As applied to witness testimony, it preserves ‘the integrity of the judicial process by encouraging full and frank testimony.'” Id. (internal citations omitted). “The rule addresses the concern that a witness may either be reluctant to come forward to testify in the first place or shade their testimony ‘to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.'” Id. (internal citation omitted).

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August 10, 2024October 21, 2024

License Waiver for Dog Guide and Service Animals (WLAD)

Under the Washington Law Against Discrimination, RCW 49.60, is there a license waiver for dog guides and service animals? Here’s my point of view.

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added).

LICENSE WAIVER FOR DOG GUIDES AND SERVICE ANIMALS (WLAD)

The WLAD contains a license waiver provision for dog guides and service animals, as follows:

RCW 49.60.380*
License waiver for dog guide and service animals.

A county, city, or town shall honor a request by a blind person or hearing impaired person not to be charged a fee to license his or her dog guide, or a request by a physically disabled person not to be charged a fee to license his or her service animal.

RCW 49.60.380* (emphasis and hyperlinks added).

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August 9, 2024October 21, 2024

Judicial Notice of Adjudicative Facts

Under Washington State Court Rules, what is Evidence Rule (ER) 201 — judicial notice of adjudicative facts? 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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WA STATE COURT RULES — RULES OF EVIDENCE — PURPOSE & CONSTRUCTION

The Washington State Court Rules, Rules of Evidence*, must “be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” ER 102*. The WA State Rules of Evidence addresses, inter alia, judicial notice of adjudicative facts.

JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Generally, “judicial notice” means “[a] court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact <the trial court took judicial notice of the fact that water freezes at 32 degrees Fahrenheit>. Fed. R. Evid. 201.” Black’s Law Dictionary 863-64 (Deluxe 8th ed. 2004).

In Washington State, ER 201* is the relevant rule, and it contains the following topics: (a) the kinds of facts subject to it’s mandate, (b) when notice is discretionary, (c) when notice is mandatory, (d) opportunity to be hard, and (e) timing of the notice. ER 201(a)*.

(a) Kinds of Facts

Under the rule, “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either[:]

(1) generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

ER 201(b)*.

(b) When Discretionary

The “court MAY take judicial notice, whether requested or not.” ER 201(c)* (emphasis added).

(c) When Mandatory

However, a court MUST “take judicial notice if requested by a party and supplied with the necessary information.” ER 201(d)*.

(d) Opportunity To Be Heard

In any event: “A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.” ER 201(e)*.

(e) Timing of Taking Notice

“Judicial notice may be taken at any stage of the proceeding.” ER 201(f)*.

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.

August 8, 2024October 21, 2024

WSHRC: From Complaint to Conclusion

Under Washington State laws and regulations, how does the Washington State Human Rights Commission (WSHRC) progress from complaint to conclusion when processing employment discrimination claims? Here’s my point of view.

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WSHRC: FROM COMPLAINT TO CONCLUSION

In Washington State, the protection of human rights is a fundamental aspect of ensuring equality and fair treatment for all individuals. The Washington State Human Rights Commission (WSHRC) serves as a vital resource for individuals who believe they have experienced discrimination in various contexts, including employment, housing, and public accommodations, real estate and credit transactions, and insurance. Understanding the process of filing and handling complaints with the WSHRC is crucial for both complainants and respondents involved in these cases. This article will focus on employment discrimination.

I. Filing a Complaint with the WSHRC

1. Initiating the Process:

Complaints can be filed with the WSHRC through an intake call or an in-person interview. See Washington State Human Rights Commission Website, https://www.hum.wa.gov/employment (last visited 2/16/24). The Intake Unit evaluates the jurisdiction of the complaint and may proceed with an intake questionnaire if it falls within the WSHRC’s purview. See id.

NOTE: WSHRC Jurisdictional Criteria

(a) “Employer has at least 8 employees (does not include religious organizations.” Id. (hyperlink added).

(b) “Signed complaints need to be filed within 6 months of last date of alleged discrimination.” Id.

2. Submission of Intake Questionnaire:

Alternatively, individuals can print out and submit the online intake questionnaire. See id. It is essential to ensure that the intake questionnaire reaches the WSHRC within six months of the alleged discriminatory action. See id.

3. Response to Written Charge:

Upon review, individuals may receive a written charge to sign and return to the WSHRC. See id.

4. Assignment to Investigator:

Once the complaint is filed, it is assigned to an investigator for further examination. See id.

II. Responsibilities of Employers Upon Receiving Notice

1. Timely Response:

Employers must send a written response to the charge within 15 days of receiving notice. See id.

2. Position Statement:

They should articulate their position on the alleged unfair actions. See id.

3. Documentation:

Providing relevant documentation to support their response is imperative. See id.

4. Witness Information:

Employers should furnish witness names and contact information as part of the investigative process. See id.

III. Conducting the Investigation

1. Neutral Fact-Finding:

The WSHRC serves as a neutral fact-finder during investigations, tasked with gathering evidence to determine if there is reasonable cause to believe that a violation of the law has occurred. This may involve interviewing witnesses and reviewing pertinent documents. See id.

2. Alternate Dispute Resolution:

The WSHRC encourages the use of alternate dispute resolution methods to resolve complaints efficiently. See id.

IV. Burden of Proof

1. Complainant’s Obligation:

The complainant must present information demonstrating a prima facie case of discrimination. See id.

2. Respondent’s Response:

The respondent can offer non-discriminatory reasons for the actions in question. See id.

3. Additional Evidence:

The burden of proof shifts back to the complainant to provide further information connecting the harm to the protected class. See id.

4. Standard of Proof:

For a finding of reasonable cause, the preponderance of evidence must indicate that discrimination occurred. See id.

V. Conclusion of the Investigation

1. Recommendation to Commissioners:

Following the completion of the investigation, WSHRC staff presents a recommendation to the Commissioners. See id.

2. NO FINDING OF DISCRIMINATION

“If the WSHRC finds no discrimination (no reasonable cause), both parties are contacted with that finding.” Id.

3. Finding of Discrimination:

If the WSHRC determines that illegal discrimination has occurred (reasonable cause), efforts are made to reach a voluntary agreement between the parties. If unsuccessful, the complaint may proceed to a formal hearing before an Administrative Law Judge (ALJ), who can impose significant penalties. See id.

CONCLUSION

Navigating the process of filing and handling human rights complaints in Washington State requires adherence to specific procedures and responsibilities outlined by the WSHRC. By understanding these guidelines, both complainants and respondents can engage effectively in the resolution process, ultimately contributing to the promotion of equality and justice within the state.

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Remedies for Breach of Conciliation Agreements**

» The Intersection of WSHRC and EEOC**

» WA State Human Rights Commission: Functions, Powers, Duties

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

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

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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.

August 8, 2024October 21, 2024

Definition of Discriminatory Boycotts or Blacklists (WLAD)

Under the Washington Law Against Discrimination (WLAD), what is the definition of “discriminatory boycotts or blacklists”? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

UNFAIR PRACTICES OF EMPLOYERS

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

[dISCHARGE OR BAR FROM EMPLOYMENT]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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.

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

(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, citizenship or immigration status, 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, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added).

DEFINITION OF DISCRIMINATORY BOYCOTTS OR BLACKLISTS

The WLAD defines “discriminatory boycotts or blacklists” as follows:

…

(f) … Discriminatory boycotts or blacklists for purposes of … [RCW 49.60.030] shall be defined as the formation or execution of any express or implied agreement, understanding, policy or contractual arrangement for economic benefit between any persons which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by a foreign government or foreign person in order to restrict, condition, prohibit, or interfere with or in order to exclude any person or persons from any business relationship on the basis of race, color, creed, religion, sex, honorably discharged veteran or military status, sexual orientation, 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 national origin, citizenship or immigration status, or lawful business relationship:

PROVIDED HOWEVER, That nothing herein contained shall prohibit the use of boycotts as authorized by law pertaining to labor disputes and unfair labor practices[.]

RCW 49.60.030(1)(f) (emphasis, paragraph formatting, and hyperlinks added). Victims of discrimination in violation of the WLAD may seek generous remedies.

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).

What is constructive termination in WA State?

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What is constructive termination in WA State?

answer:

In WA State, a constructive termination (or discharge) arises “where an employer deliberately makes an employee‘s working conditions intolerable, thereby forcing the employee to resign.” Sneed v. Barna, 80 Wash. App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wash.2d 1023, 919 P.2d 600 (1996) (internal citations and quotation marks omitted) (emphasis added).

Depending on the circumstances of each case, a constructive discharge might support a viable legal theory of employment discrimination under the Washington Law Against Discrimination (WLAD) and/or Title VII of the Civil Rights Act of 1964 (and associated federal laws).

THE TERM “DELIBERATELY”

The term “deliberately” entails a deliberate act or a pattern of conduct “of the employer creating the intolerable condition, without regard to the employer’s mental state as to the resulting consequence.” Sneed, 80 Wash.App. at 849-50; Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485, 302 P.3d 500 (Div. 2 2013) (internal citation omitted).

INTOLERABLE WORKING CONDITIONS

Typically, the question of “whether working conditions have risen to an ‘intolerable’ level is a factual question for the jury.” Sneed, 80 Wash.App. at 849 (internal citations omitted). Often, the courts will “look for evidence of either ‘aggravating circumstances’ or a ‘continuous pattern of discriminatory treatment’ to support a constructive discharge claim.” Id. at 850 (internal citations omitted).

THE QUESTION TO BE ANSWERED (OBJECTIVE STANDARD)

The question to be answered is “whether working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Id. at 849 (internal citations and quotation marks omitted). “This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant.” Barnett, 174 Wn.App. at 485 (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wash.App. 542, 551, 85 P.3d 959 (2004)) (internal quotation marks omitted).

take our constructive discharge test

READ OUR RELATED ARTICLES

» Effective Date for Constructive Discharge (WA State)

» Is Washington State an at-will employment state?

» What is the Statute of Limitations for Wrongful Termination in WA?

» WLAD & The Constructive Discharge Provision*

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

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June 15, 2024October 21, 2024

Employment Law 101: Alternative Dispute Resolution

Under Washington State laws, what does the term “alternative dispute resolution” mean within the context of civil legal proceedings? Here’s my point of view.

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Introduction: Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution plays an important role in Washington State civil law, offering an innovative approach to conflict resolution outside the confines of traditional courtrooms. In this article, I will explore the meaning and importance of Washington State ADR, examining various methodologies and the crucial role it plays in facilitating efficient and harmonious resolutions to civil disputes.

Defining Alternative Dispute Resolution

Alternative Dispute Resolution refers to a range of processes designed to resolve legal conflicts without resorting to formal litigation. In Washington State, ADR encompasses methods such as mediation, arbitration, conciliation, and negotiation. These processes provide disputing parties with alternatives to the adversarial nature of traditional courtroom proceedings, promoting a collaborative and solution-oriented approach to conflict resolution.

Key ADR Methods in Washington State

Mediation:

Mediation employs a neutral third party, the mediator, to facilitate communication between disputing parties and guide them toward a mutually acceptable resolution.

Arbitration:

Arbitration involves presenting evidence and arguments to a neutral arbitrator, who then renders a binding decision.

Conciliation:

Conciliation engages a conciliator who assists parties in reaching a settlement by identifying common ground and fostering compromise. This method is commonly employed in Washington State for employment disputes, contractual disagreements, and interpersonal conflicts; the Washington State Human Rights Commission incorporates this process in its investigation of employment-discrimination complaints.

Significance of ADR in Washington State Civil Law

Efficiency and Timeliness:

ADR processes are recognized for their efficiency and timeliness, enabling parties to resolve disputes more expeditiously than through traditional litigation.

Cost-Effectiveness:

ADR can be a more cost-effective alternative to court proceedings, saving parties both time and financial resources.

Preserving Relationships:

Emphasizing collaboration and communication, ADR is particularly beneficial in preserving relationships strained by adversarial litigation.

Tailored Solutions:

ADR allows parties to craft customized solutions that better suit their unique circumstances, fostering a sense of ownership and satisfaction with the resolution.

Conclusion

In Washington State, the adoption of Alternative Dispute Resolution reflects a commitment to creating a legal environment that prioritizes efficiency, cost-effectiveness, and collaboration. As ADR continues to evolve and gain prominence, it underscores the state’s dedication to providing its citizens with diverse and effective means of resolving civil disputes outside the traditional courtroom setting.

Read Our Related Articles

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

» Employment Law 101: Summary Judgment (WA State)

June 13, 2024October 21, 2024

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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.

–gw

What are the elements of Failure to Provide Reasonable Accommodations in WA State?

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What are the elements of Failure to Provide Reasonable Accommodations in WA State?

answer:

“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.

Mackey v. Home Depot USA, Inc.*, 12 Wn.App.2d 557, 586 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing LaRose v. King County, 8 Wn.App.2d 90, 125-26, 437 P.3d 701 (2019)) (paragraph formatting, emphasis, and hyperlinks added).

The above elements formulate a prima facie case of Failure to Provide Reasonable Accommodations in Washington State.

What is WA State’s law against employment discrimination?

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FAQ: What is WA State’s law against employment discrimination?

answer:

The Washington Law Against Discrimination* (WLAD), enacted in 1949, is a potent statute that covers a broad array of categories, including, but not limited to, employment discrimination. The relevant statute states as follows:

Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

UNFAIR PRACTICES OF EMPLOYERS

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

[DISCHARGE OR BAR FROM EMPLOYMENT]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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.

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, 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: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

(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, citizenship or immigration status, 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, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added).

Unlawful retaliation

The WLAD also outlaws certain types of retaliation: “[i]t 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 … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210*. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40* RCW.” RCW 49.60.210*.

WLAD 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)*.

Proving Discrimination: The Direct-Evidence Method

Under Washington State laws, what is the direct-evidence method (hereinafter, “Direct-Evidence Method”) of establishing a prima facie case of employment discrimination? Here’s my point of view.

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EMPLOYMENT DISCRIMINATION — THE PRIMA FACIE CASE (2 OPTIONS)

In Washington State, “[a] plaintiff can establish a prima facie case [of employment discrimination] 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.

Alonso v. Qwest Communications Company, LLC*, 178 Wn.App 734, 743-44 (Div. 2 2013) (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis, paragraph formatting, and hyperlinks added).

THE DIRECT-EVIDENCE METHOD

The Direct-Evidence Method has two elements. “[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, hyperlink, and emphasis added).

THE 2ND ELEMENT: DISCRIMINATORY MOTIVATION WAS SIGNIFICANT/SUBSTANTIAL FACTOR

To satisfy the second element of the Direct-Evidence Method, the plaintiff–employee “must … [establish that] the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id.* at 746 (referencing Kastanis, 122 Wn.2d at 491). This can be done by identifying associated adverse employment actions.

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.* (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 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)) (hyperlink added).

EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE

Washington Courts “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”)).

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June 1, 2024October 21, 2024

How can an employment-law attorney help me?

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HOW CAN AN EMPLOYMENT-LAW ATTORNEY HELP ME?

answer:

In today’s workforce, instances of workplace discrimination continue to cast shadows over the professional lives of numerous employees. Discrimination, spanning various factors such as age, citizenship or immigration status, creed/religion, disability, gender, national origin, opposition to a discriminatory practice, race, and sexual orientation, presents a formidable challenge to workplace equality. For individuals grappling with discrimination in their professional environments, seeking legal counsel emerges as a pivotal recourse. Here’s why consulting with an attorney holds paramount importance for employees encountering discrimination in the workplace:

1. Understanding Legal Rights

When faced with workplace discrimination, comprehending one’s legal rights becomes imperative. Employment laws exhibit nuances and intricacies, often varying from state to state. Consulting with an employment law attorney facilitates a comprehensive understanding of applicable legal frameworks, such as the Washington Law Against Discrimination*, Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA).

2. Guidance Through the Process

The journey of initiating a discrimination claim can prove arduous, particularly for individuals unversed in legal proceedings. An attorney proficient in employment law extends invaluable guidance and support across every phase of the process. This encompasses assistance in evidence collection, completion of necessary paperwork, and adept representation during negotiations or court proceedings. Through their expertise, attorneys ensure the protection of clients’ rights and enhance the prospects of securing a favorable outcome.

3. Preservation of Evidence

Evidentiary support serves as the backbone of discrimination claims, pivotal in substantiating allegations. However, the task of gathering and preserving evidence presents challenges, particularly for employees still employed by the discriminating entity. Attorneys adept in employment law offer strategic counsel on evidence collection, encompassing documentation such as emails, performance evaluations, and witness statements. Moreover, they safeguard against potential retaliatory actions from the employer, crucial in bolstering the strength of the case.

4. Advocacy and Negotiation

Many discrimination cases witness resolution through negotiation or mediation, circumventing the need for protracted litigation. Here, the role of an attorney as an advocate assumes significance, advocating for clients’ interests and facilitating constructive dialogue with the opposing party. By elucidating available options and potential outcomes, attorneys empower clients to make informed decisions conducive to their objectives.

5. Pursuit of Compensation

Employees subjected to workplace discrimination may be entitled to compensation for various damages incurred, ranging from lost wages to emotional distress. Attorneys proficient in employment law conduct a thorough evaluation of clients’ claims, considering factors such as the severity of discrimination and its impact on professional trajectories. Subsequently, they navigate the legal terrain to secure rightful compensation through formal channels.

6. Holding Employers Accountable

Beyond seeking redress for individual grievances, pursuing legal action against discriminatory practices holds broader implications. By holding employers accountable for their actions, employees contribute to the collective endeavor of fostering equitable and inclusive work environments. Such actions serve as deterrents against future instances of discrimination, fostering a culture of accountability and respect within organizations.

CONCLUSION

In essence, the decision to seek legal counsel holds profound significance for employees grappling with workplace discrimination. Attorneys practicing employment law serve as steadfast allies, offering guidance, advocacy, and strategic representation. By harnessing legal avenues, employees not only assert their rights but also propel the ongoing fight for workplace equality and justice.

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May 30, 2024October 21, 2024

What are the elements of Unlawful Retaliation in WA State?

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FAQ: What are the elements of Unlawful Retaliation in WA State?

answer:

“To establish a prima facie case of [unlawful] 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.

Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 574 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)) (emphasis, paragraph formatting, and hyperlinks added).

THE WASHINGTON LAW AGAINST DISCRIMINATION

Unlawful Retaliation is a theory of liability under the Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW. The WLAD “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).

WLAD REMEDIES

“Any person deeming himself or herself injured by any act in violation of … [WLAD] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

READ OUR RELATED ARTICLES

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

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

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

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May 23, 2024October 21, 2024

Construing Municipal Ordinances

In Washington State, how do courts construe municipal ordinances? Here’s my point of view.

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CANONS OF CONSTRUCTION

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

NOTE: “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Construing Municipal Ordinances

According to Washington State courts:

[W]e construe municipal ordinances according to the rules of statutory interpretation.

Hockett v. Seattle Police Department, 85066-1-I (Div. 1 2024) (citing City of Seattle v. Swanson, 193 Wn. App. 795, 810, 373 P.3d 342 (2016)).

The rules of statutory interpretation are also known as the canons of statutory construction. Thus, Washington State courts utilize the canons of statutory construction to construe municipal ordinances.

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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.

May 18, 2024October 21, 2024

State-Employee Whistleblowers & Retaliatory Action

Under Washington State laws, what is considered retaliatory action against state-employee whistleblowers? Here’s my point of view.

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What is considered retaliatory action against state-employee whistleblowers (WA State)?

definition of state-employee whistleblower

Please see our article entitled: “Definition of State Employee Whistleblower.” (NOTE: the link will take the reader to our Williams Law Group Blog — an external website.)

dEFINITION OF RETALIATORY ACTION (or reprisal)

The relevant law concerning retaliation against state-employee whistleblowers is found under RCW 42.40.050*, as follows:

RCW 42.40.050.
Retaliatory action against whistleblower—Remedies.

(1)(a) Any person who is a whistleblower, as defined in RCW 42.40.020*, and who has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under chapter 49.60* RCW [(i.e., The Washington Law Against Discrimination)].

(b) For the purpose of this section, “reprisal or retaliatory action” means, but is not limited to, any of the following:

(i) Denial of adequate staff to perform duties;

(ii) Frequent staff changes;

(iii) Frequent and undesirable office changes;

(iv) Refusal to assign meaningful work;

(v) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;

(vi) Demotion;

(vii) Reduction in pay;

(viii) Denial of promotion;

(ix) Suspension;

(x) Dismissal;

(xi) Denial of employment;

(xii) A supervisor or superior behaving in or encouraging coworkers to behave in a hostile manner toward the whistleblower;

(xiii) A change in the physical location of the employee’s workplace or a change in the basic nature of the employee’s job, if either are in opposition to the employee’s expressed wish;

(xiv) Issuance of or attempt to enforce any nondisclosure policy or agreement in a manner inconsistent with prior practice; or

(xv) Any other action that is inconsistent compared to actions taken before the employee engaged in conduct protected by this chapter, or compared to other employees who have not engaged in conduct protected by this chapter.

(2) The agency presumed to have taken retaliatory action under subsection (1) of this section may rebut that presumption by proving by a preponderance of the evidence that there have been a series of documented personnel problems or a single, egregious event, or that the agency action or actions were justified by reasons unrelated to the employee’s status as a whistleblower and that improper motive was not a substantial factor.

(3) Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. However, the agency also shall implement any order under chapter 49.60* RCW (other than an order of suspension if the agency has terminated the retaliator).

RCW 42.40.050* (emphasis and hyperlinks added).

—–

* (NOTE: the link will take the reader away from this website to the Official Washington State Legislature Website (Revised Code of Washington) — an external governmental website.)

CONCLUSION

Under Washington State laws, state-employee whistleblowers who experience retaliatory actions have various remedies available to them. As defined under RCW 42.40.050, retaliatory actions encompass a wide range of behaviors, including but not limited to denial of adequate staff, unwarranted demotion, and hostile behavior from supervisors or coworkers. However, agencies have the opportunity to rebut these claims by demonstrating documented personnel issues or justifying actions unrelated to whistleblowing.

READ OUR RELATED ARTICLES

» Definition of State Employee Whistleblower**

» Employment-Discrimination Hotlines & Unlawful Retaliation

» The Prima Facie Case: Unlawful Retaliation

» Top 3 Reasons Unlawful Retaliation Claims Fail

» Unlawful Retaliation: Adverse Employment Action

» Unlawful Retaliation and the Prospective Employer

» Unlawful Retaliation: Statutorily Protected Activity

» Unlawful Retaliation: The Actual-Knowledge Standard

» Unlawful Retaliation: The Causal Link

» Unlawful Retaliation: The Functionally-Similar Test

» WA State Human Rights Commission: Functions, Powers, Duties

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

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

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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.

May 16, 2024October 21, 2024

What are the elements of Hostile Work Environment in WA State?

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FAQ: What are the elements of Hostile Work Environment in WA State?

answer:

Hostile work environment is a form of unlawful employment discrimination in Washington State; it is also known as harassment. Generally, to establish a prima facie case against an employer, the employee must produce competent evidence of each of the following four elements:

(1) that the harassment was offensive and unwelcome;

(2) that it occurred because of the employee’s membership in a protected class;

(3) that it affected the terms and conditions of employment/membership; and

(4) that the harassment can be imputed to the employer.

See, e.g., Glasgow v. Georgia-Pacific Corp.*, 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985).

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case

» Disability-Based Hostile Work Environment

» Hostile Work Environment: Imputing Harassment to Employer

» Hostile Work Environment: Terms or Conditions of Employment

» Hostile Work Environment: The Unwelcome Element

» McDonnel Douglas Burden-Shifting Framework*

» Protected Classes

» Sexual Harassment in the Workplace (WA State)

» The Prima Facie Case: Hostile Work Environment

» Top 3 Hostile Work Environment Issues

» WLAD: Disparate Treatment via Hostile Work Environment

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

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May 9, 2024October 21, 2024

Civil Procedure: The CR 26(i) Conference Requirement (WA State)

Under Washington State Superior Court Civil Rules (hereinafter, “CR”), what is the CR 26(i) conference requirement? Here’s my point of view.

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The CR 26(i) Conference Requirement (WA State)

In civil litigation in Washington State, adherence to procedural rules is paramount for the smooth functioning of the legal system and ensuring fairness for all parties involved. One such rule that holds significant importance concerning the discovery process is CR 26(i)*. In this article, I delve into what this rule entails and why it’s crucial for civil attorneys practicing in Washington State to understand and comply with it.

Understanding CR 26(i)

Requirement for Conference of Counsel

CR 26(i)* mandates that before presenting any motion or objection concerning Rules 26 through 37 (Depositions and Discovery) of the Washington State Rules of Superior Court*, counsel for the parties involved must confer with each other. This conference should be arranged at a mutually convenient time and can take place either in person or via telephone.

Good Faith Conferencing

The rule emphasizes the necessity of conducting the conference in good faith. This implies that the parties involved should engage in meaningful discussions aimed at resolving issues or reaching agreements regarding the motion or objection at hand.

Sanctions for Non-Compliance

Should the court determine that counsel for any party has willfully refused or failed to confer in good faith as required by CR 26(i)*, it holds the authority to apply sanctions as outlined under Rule 37(b)*. These sanctions can encompass a range of punitive measures, highlighting the seriousness with which the court views non-compliance with procedural requirements.

Certification Requirement

Importantly, any motion seeking an order to compel discovery or obtain protection must include certification from counsel affirming that the conference requirements of CR 26(i)* have been met. This certification serves as evidence of compliance and ensures transparency in the litigation process.

Importance of Compliance

Compliance with CR 26(i)* is not merely a procedural formality; it serves several crucial purposes:

1. Facilitating Communication

By necessitating conference among counsel, the rule promotes open communication and collaboration between parties. This can often lead to the resolution of disputes without the need for court intervention, thereby saving time and resources.

2. Efficient Case Management

Ensuring that parties engage in pre-motion conferences helps streamline the litigation process. By addressing potential issues early on, the court can better manage its docket and expedite proceedings.

3. Promoting Fairness

The requirement for good-faith conferencing underscores the principle of fairness in litigation. It encourages parties to engage in constructive dialogue and seek mutually acceptable solutions, ultimately promoting equitable outcomes.

4. Enhancing Accountability

The certification requirement adds an extra layer of accountability for counsel, reinforcing the importance of compliance with procedural rules. It acts as a safeguard against frivolous or improper motions, thereby promoting the integrity of the legal process.

Conclusion

In civil litigation in Washington State, adherence to procedural rules like CR 26(i) is indispensable. By mandating pre-motion conferences and ensuring good faith engagement among counsel, this rule serves to foster communication, streamline proceedings, and uphold the principles of fairness and accountability within the legal system. Attorneys practicing in Washington State must familiarize themselves with CR 26(i) and diligently adhere to its requirements to navigate civil litigation successfully. Failure to do so can not only result in sanctions but may also undermine the integrity of the litigation process itself.

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April 25, 2024October 21, 2024

WA State Rule of Civil Procedure CR 16: A Guide for Litigators

Under Washington State Court Rules, how may litigators utilize WA State Rule of Civil Procedure CR 16 (Pretrial Procedure and Formulating Issues)? Here’s my point of view.

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WA State Rule of Civil Procedure CR 16: A Guide for Litigators

In the legal arena, rules and procedures govern every aspect of a case, ensuring fairness and efficiency in the pursuit of justice. Washington State Rule of Civil Procedure CR 16* is one such crucial guideline that sets the stage for the orderly progression of civil litigation. Understanding CR 16 is essential for attorneys and litigants alike to navigate the complexities of the legal process in Washington State courts effectively.

What is CR 16?

CR 16, short for Washington State Rule of Civil Procedure 16, outlines the requirements and procedures for pretrial conferences and the development of a litigation plan. It serves as a roadmap for streamlining the litigation process, promoting early settlement, and ensuring that cases proceed expeditiously through the court system. The court rule states as follows:

CR 16
PRETRIAL PROCEDURE AND FORMULATING ISSUES

(a) Hearing Matters Considered. By order, or on the motion of any party, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) Such other matters as may aid in the disposition of the action.

(b) Pretrial Order. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

CR 16* (emphasis and hyperlink added).

Key Components of CR 16

1. Pretrial Conferences: CR 16 allows–by order, or on the motion of any party–pretrial conferences to facilitate communication between parties and the court during the litigation process. These conferences aim to identify and narrow the issues in dispute, explore opportunities for settlement, and establish a framework for the efficient resolution of the case.

2. Litigation Plan: One of the central features of CR 16 is the formulation of a litigation plan. This plan outlines the parties’ proposed course of action, including simplifying the issues, amendments to the pleadings, the possibility of obtaining admissions of fact and of documents, limiting the number of expert witnesses, and any other pertinent matters essential for the progression of the case. The litigation plan helps parties and the court manage expectations and timelines effectively.

3. Pretrial Orders: The court must issue an order documenting the proceedings of the conference, including any amendments permitted to the pleadings and agreements reached by the parties on relevant matters. The order must delineate the issues remaining for trial, excluding those resolved through admissions or agreements of counsel. Once entered, this order governs the subsequent progression of the case unless modified during the trial to prevent clear injustice. Additionally, the court, at its discretion, may institute a pretrial calendar system for cases to undergo similar consideration. This calendar may be limited to either jury or nonjury cases, or expanded to encompass all types of actions.

Benefits of CR 16

1. Efficiency: By promoting early communication and establishing clear guidelines for case management, CR 16 helps expedite the litigation process, reducing delays and unnecessary expenses for all parties involved.

2. Clarity and Predictability: The requirement to develop a litigation plan provides clarity and predictability regarding the progression of the case, enabling parties to allocate resources more effectively and plan their litigation strategies accordingly.

3. Encouragement of Settlement: Through pretrial conferences and the exploration of settlement options, CR 16 encourages parties to resolve their disputes outside of court, potentially saving time, money, and emotional energy associated with protracted litigation.

4. Judicial Oversight: By empowering the court to actively manage the case through case management orders, CR 16 ensures that proceedings are conducted in a fair and orderly manner, with judicial oversight to address any procedural issues that may arise.

Conclusion

Washington State Rule of Civil Procedure CR 16 plays a vital role in promoting efficiency, fairness, and effective case management in civil litigation. By allowing pretrial conferences, formulating litigation plans, and providing for judicial oversight, CR 16 helps streamline the litigation process and facilitates the early resolution of disputes. Attorneys and litigants should familiarize themselves with CR 16’s requirements to navigate the complexities of civil litigation in Washington State courts successfully.

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April 11, 2024October 21, 2024

Is Washington State an at-will employment state?

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Is Washington State an at-will employment state?

answer:

Washington has been an “at-will” employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)).

According to the at-will doctrine, “an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability.” See id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). “Conversely, in the absence of a contract stating otherwise, an employee has the absolute right to abandon … [their] employment at-will.” See id.

However, there are three recognized exceptions to the general at-will employment doctrine: (1) Statutory; (2) Judicial and; (3) Contractual.

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» Constructive Discharge in WA State*

» Effective Date For Constructive Discharge (WA State)

» Retaliatory Discharge (WA State)

» The Prima Facie Case: Discriminatory Discharge

» WA State Torts: Wrongful Termination in Violation of Public Policy*

» What is the Statute of Limitations for Wrongful Termination in WA?

» What Qualifies as Wrongful Termination in Washington?

» WLAD: The Discriminatory Discharge Provision*

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March 28, 2024October 21, 2024

Employment Law 101: How to Commence a Civil Legal Action

Under Washington State laws and court rules, how does a plaintiff commence a civil legal action (i.e., civil lawsuit)? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to an external 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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Introduction

In Washington State civil litigation, the commencement of a legal action is a critical step that sets the stage for the entire legal process. Let’s delve into the key aspects of initiating a civil action as outlined in the state’s rules and statutes. NOTE: this article only addresses commencement in Washington State Superior Courts*.

How to Commence a Civil Legal Action

Except as provided in Washington State Superior Court Civil Rules (CR), CR 4.1*, a civil action in Washington State can be commenced in two primary ways:

1. Service of Summons and Complaint:

The action is initiated by serving a copy of a summons along with a copy of the complaint, as outlined in Rule 4* of the state’s legal procedures. This service of documents is a fundamental step in officially notifying the defendant of the legal proceedings against them.

2. Filing a Complaint:

Alternatively, a civil action can also be commenced by directly filing a complaint with the court. This formal submission of the complaint initiates the legal process and sets the case in motion.

See CR 3*.

Timely Response and Filing Fee Requirement

Upon commencing the action, there are specific timelines and requirements that parties must adhere to:

Written Demand for Filing:

If any other party in the case makes a written demand, the plaintiff instituting the action must pay the filing fee and file the summons and complaint within 14 days after service of the demand. Failure to do so renders the service void.

Effect on Statute of Limitations:

It’s important to note that an action is not considered commenced for the purpose of tolling any statute of limitations unless specified otherwise in RCW 4.16.170*. This statute outlines exceptions where the commencement of an action may affect the timeline within which legal actions can be pursued.

Ensuring Legal Compliance and Timely Action

Complying with the rules regarding commencement of civil actions is crucial for all parties involved. It ensures that legal proceedings are initiated in a timely and legally valid manner, preventing potential disputes or challenges regarding the validity of service or commencement.

Conclusion

Initiating a civil action in Washington State involves careful adherence to procedural rules regarding service, filing, and responding to demands. Understanding these rules and timelines is essential for legal practitioners and parties involved in civil litigation, ensuring a smooth and legally compliant commencement of the legal process.

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*NOTE: Links with a single asterisk (*) will take the reader away from our website to an external governmental website.

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» Tolling and Commencement Are Reconcilable (WA State)**

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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.

–gw

March 21, 2024October 21, 2024

Employment Law 101: Affirmative Defense

Under Washington State laws, what is an “affirmative defense” within the context of civil litigation? Here’s my point of view.

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Definition of Affirmative Defense

In civil litigation under Washington State laws, the concept of affirmative defense plays a crucial role in legal proceedings. An affirmative defense is a legal argument or justification presented by the defendant in response to a plaintiff‘s claim. Unlike a denial or a simple assertion that the plaintiff’s allegations are false, an affirmative defense asserts new facts or legal theories that, if proven, would defeat or mitigate the plaintiff’s claims.

examples

One common example of an affirmative defense is the statute of limitations. This defense asserts that even if the plaintiff’s allegations are true, the claim is barred because it was not brought within the time period specified by law. Other affirmative defenses may include, but are not limited to failure to mitigate damages, assumption of risk, contributory negligence, and duress, among others.

TIMING

In Washington State, it is essential for defendants to raise affirmative defenses promptly during litigation according to court rules. A defendant’s failure to timely do so can lead to the affirmative defense being forfeited and rendered unusable in subsequent stages of the litigation process.

burden of proof

It’s important to note that the burden of proof for an affirmative defense usually falls on the defendant. This means that the defendant must present evidence and convince the court that the affirmative defense applies to the case and should result in a favorable outcome for the defendant.

Conclusion

In summary, an affirmative defense in Washington State civil litigation is a legal argument or justification presented by the defendant to defeat or mitigate the plaintiff’s claims. It introduces new facts or legal theories that, if proven, can provide a legal basis for the defendant’s position in the case. Understanding affirmative defenses is essential for both plaintiffs and defendants in navigating the complexities of civil litigation in Washington State.

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March 14, 2024October 21, 2024

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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.

–gw

The Virtual Law Office (WA State)

Under Washington State laws, rules, and regulations, what is a virtual law office? Here’s my point of view.

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THE VIRTUAL LAW OFFICE (WA STATE)

The Washington State Bar Association (WSBA) recently released an Advisory Opinion concerning the “Ethical Practices of the Virtual or Hybrid Law Office.” Therein, WSBA determined, as follows:

Many lawyers are choosing to do some or all their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, video conferencing, and email services have allowed the development of the virtual law office, by which the lawyer does not maintain a physical office. The COVID-19 pandemic accelerated this trend, causing many lawyers to work remotely (virtually), or to split their time between a traditional office and a remote office (a hybrid office)….

Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same. The core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical. For the most part, the Rules of Professional Conduct (RPC) apply no differently in the virtual office context. However, there are areas that raise special considerations in the virtual law office.

WSBA Advisory Opinion 201601 (2022) (internal citation omitted) (emphasis added).

Must in-state attorneys have a physical office address?

In its advisory opinion, the WSBA also addressed whether in-state attorneys are required to have a physical office address by evaluating both its bylaws and Admission to Practice Rules, as follows:

[WSBA BYLAWS]

There is no requirement that WSBA members have a physical office address. Section III(C)(1) of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a “physical residence address” and a “principal office address.” The physical residential address is used to determine the member’s district for Board of Governors elections. The Bylaws do not require that a principal office address be a physical address….

[WSBA ADMISSION TO PRACTICE RULES]

Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a “current mailing address” and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.

WSBA Advisory Opinion 201601 (emphasis, and hyperlinks added). Thus, the WSBA and its relevant Advisory Opinion do not require attorneys to have a physical office address.

Conclusion

In conclusion, the landscape of legal practice in Washington State has seen a significant evolution with the emergence of virtual law offices, a trend accelerated by the COVID-19 pandemic. The recent Advisory Opinion by the Washington State Bar Association (WSBA) underscores that while the setting may differ from traditional brick-and-mortar establishments, the fundamental ethical principles governing legal practice remain unwavering. Despite the absence of a physical office, attorneys must adhere to core duties of diligence, loyalty, and confidentiality, as outlined in the Rules of Professional Conduct (RPC).

Importantly, the opinion clarifies that in-state attorneys are not mandated to maintain a physical office address, as confirmed by both WSBA Bylaws and Admission to Practice Rules. This recognition signals a progressive shift in the legal profession, accommodating modern realities without compromising ethical standards. As attorneys continue to embrace virtual or hybrid models, this guidance provides clarity and assurance, ensuring a seamless integration of technology and tradition in the pursuit of justice and legal excellence.

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March 7, 2024October 21, 2024

Can lawyers provide clients with financial assistance for lawsuits?

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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Can lawyers provide clients with financial assistance for lawsuits?

answer:

In Washington State, a lawyer cannot, “while representing a client in connection with contemplated or pending litigation, advance or guarantee financial assistance to a client, except that:

(1) a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses; and

(2) in matters maintained as class actions only, repayment of expenses of litigation may be contingent on the outcome of the matter.

Washington State Court Rules: Rules of Professional Conduct, Rule 1.8(e) (emphasis added).

THE POLICY:

According to the Washington State Rules of Professional Conduct, the policy for this financial-assistance limitation is as follows:

Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.

Id. at Rule 1.8 (comment 10) (internal citation omitted).

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February 22, 2024October 21, 2024

Are Compensatory Damages Available Under the WLAD?

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Are Compensatory Damages Available Under the WLAD?

answer:

Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.

The Washington Law Against Discrimination (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD offers a wide array of remedies for violations, including but not limited to compensation for actual damages.

WLAD Remedies

“[T]he [Washington] law against discrimination … expressly provides [remedies, as follows]:

Any person deeming himself or herself injured by any act in violation of this chapter 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….”

Martini v. The Boeing Company, 137 Wn.2d 357, 366-67 (Wash. 1999) (citing RCW 49.60.030(2)) (emphasis added). NOTE: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

Actual Damages

“‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive**.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)) (emphasis added). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

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**NOTE: This link will take you to our Williams Law Group Blog, an external website.

Compensatory Damages

“Compensatory damages are “[d]amages sufficient in amount to indemnify the injured person for the loss suffered — Often shortened to compensatories.” Black’s Law Dictionary 416 (Deluxe Eighth Edition 2004) (emphasis added). “Indemnify” means “[to] reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Id. at 783-84.

Conclusion

Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.

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February 15, 2024October 21, 2024

The Campbell & Gwinn Framework

Under Washington State canons of statutory construction, what is the Campbell & Gwinn Framework? Here’s my point of view.

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**CANONS OF CONSTRUCTION: THE CAMPBELL & GWINN FRAMEWORK**

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

Ambiguous Statutes (WA State)

Washington State courts use the Campbell & Gwinn Framework to inquire whether a statute is ambiguous. See Magney v. Pham, 195 Wash.2d 795, 803, 805, 466 P.3d 1077 (Wash. 2020).

**The Campbell & Gwinn Framework**

Courts apply the Campbell & Gwinn Framework as follows:

(1) DETERMINE the legislative intent OF the STATUTE

When a Washington State court construes “a statute, … [its] goal is to determine and effectuate legislative intent.” Magney, 195 Wash.2d at 803, 466 P.3d 1077 (citing Swinomish Indian Tribal Cmty. v. Dep’t of Ecology, 178 Wash.2d 571, 581, 311 P.3d 6 (2013); Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002)) (internal citations omitted) (emphasis added).

(2) EVALUATE the plain and unambiguous language OF the STATUTE

The court will “start with the plain and unambiguous language of a statute.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4).

(3) if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning

“[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4) (alteration in original). “[T]he plain meaning is … derived from what the Legislature has said in its enactments, but that meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Id (citing Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4) (alteration in original).

(4) if the statute is ambiguous, then it is appropriate for the court to resort to aids to construction

“[I]f, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 12, 43 P.3d 4) (alteration in original).

Conclusion

Washington State courts use Campbell & Gwinn Framework to inquire whether a statute is ambiguous. If the interpretation of the statute is clear at first glance, the court is obligated to uphold that straightforward interpretation as reflective of the legislature’s intent. Alternatively, if the statute is determined to be ambiguous–meaning, “susceptible to more than one reasonable meaning”–then it is appropriate for the court to resort to aids to construction, including legislative history. See id.

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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.

February 8, 2024October 21, 2024

How Courts Construe Legal Privileges (WA State)

Under Washington State laws, how do courts construe legal privileges? Here’s my point of view.

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HOW COURTS CONSTRUE LEGAL PRIVILEGES (WA STATE)

Generally, a “privilege” is “[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. [ ] A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.” Black’s Law Dictionary 1234 (8th ed. 2004).

In Washington State, “[t]here are two types of privileges: common law privileges and statutory privileges. See Magney v. Pham, 195 Wash.2d 795, 802, 466 P.3d 1077 (Wash. 2020).

COMMON LAW PRIVILEGES: courts have more latitude to interpret

“Common law privileges, such as the attorney-client privilege, are those privileges whose codifications are ‘merely declaratory of the common law.'” Id., 466 P.3d 1077 (citing State v. Emmanuel, 42 Wash.2d 799, 815, 259 P.2d 845 (1953)) (emphasis added).

“The court has more latitude to interpret common law privileges.” Id., 466 P.3d 1077 (citing Emmanuel, 42 Wash.2d at 815, 259 P.2d 845 (although not specified in the statute codifying the attorney-client privilege, we held that “[t]he same privilege accorded the attorney is extended to the client under the common-law rule (citing State v. Ingels, 4 Wash.2d 676, 104 P.2d 944 (1940))).

STATUTORY PRIVILEGES: courts strictly construe

“In contrast, when a privilege is created by statute and thus is not a privilege found within the common law, it is considered to be in derogation of—that is, an exemption from—the common law, and the statute must be strictly construed.” Id., 466 P.3d 1077 (citing Petersen v. State, 100 Wash.2d 421, 429, 671 P.2d 230 (1983) (psychologist-client privilege is created by statute in derogation of the common law and must be strictly construed); Carson v. Fine, 123 Wash.2d 206, 212-13, 867 P.2d 610 (1994) (physician-patient privilege is created by statute and is strictly construed (citing Dep’t of Soc. & Health Servs. v. Latta, 92 Wash.2d 812, 819, 601 P.2d 520 (1979))) (parenthetical emphasis added).

“Unlike the attorney-client privilege, the marital counseling privilege is [also] created by statute and must be strictly construed by interpreting the specific words in the statute that the legislature has codified.” Id. at 802-03 (citing Petersen, 100 Wash.2d at 429, 671 P.2d 230).

CONCLUSION

In Washington State, there are common-law privileges and statutory privileges. Common-law privileges such as the attorney-client privilege are “declaratory of the common law,” and courts have more freedom to construe them. Whereas statutory privileges such a the psychologist-client privilege, physician-patient privilege, and marital-counseling privilege are considered to be an “exemption from the common law,” and courts must strictly construe them.

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February 1, 2024October 21, 2024

The Implied Cause of Action Rule

Under Washington State laws, what is the Implied Cause of Action Rule? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for entertainment 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 IMPLIED CAUSE OF ACTION RULE: WA STATE

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990).

a judicial canon of construction

Accordingly, the Implied Cause of Action Rule is a judicial canon directing that “when a statute … [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland’s Statutes and Statutory Construction § 55.03 (4th ed. 1973).” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state’s labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee’s labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) (“[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy”)) (alteration in original) (emphasis added) (internal quotation marks omitted).

This judicial canon has its roots in federal law as well as the Restatement of Torts.

NOTE: A judicial canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added). “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Federal Law

“The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy.” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).

THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that “The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing Restatement (Second) of Torts § 874A (1979)) (emphasis added).

THE ELEMENTS

Washington courts have borrowed “from the test used by federal courts in determining whether to imply a cause of action.” Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

(1) whether the plaintiff is within the class for whose “especial” benefit the statute was enacted;

(2) whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

(3) whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

the assumptions

Lastly, the court may make two important assumptions under the Implied Right of Action Rule:

(1) “[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and

[(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.”

See id. at 919-20 (paragraph formatting added).

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January 25, 2024October 21, 2024

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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.

–gw

Employment Law 101: Protected Classes

Under Washington State laws, what are “protected classes” within the context of employment discrimination? Here’s my point of view.

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INTRODUCTION: PROTECTED CLASSES (WA STATE)

Washington State has comprehensive employment-discrimination laws to shield workers from unjust treatment rooted in specific attributes. An integral facet of these legal provisions is the acknowledgment of “protected classes.” This article will enumerate the protected classes within the employment-rights framework of the Washington Law Against Discrimination.

I. The Washington Law Against Discrimination: EMPLOYMENT

The Washington Law Against Discrimination (“WLAD“) is a potent statute enacted in 1949, and it covers a broad array of categories including, but not limited to employment, as follows:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

…

RCW 49.60.030(1)(a) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

II. Unfair Practices of Employers: generally

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[Refuse To Hire]

[Discharge or Bar From Employment]

[Discriminate in Compensation or in Other Terms/Conditions of Employment]

[Statements, Advertisements, Publications, Applications for Employment, Inquiries in Connection With Prospective Employment]

RCW 49.60.180 (emphasis and hyperlinks added).

III. unfair practices of employers: filing or participating in a disrimination complaint (UNLAWFUL RETALIATION)

The WLAD also outlaws certain types of retaliation: “[i]t 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 … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.” RCW 49.60.210.

NOTE: The foregoing unfair practices are based upon specific protected classes.

IV. Defining Protected Classes

Protected classes encompass groups of individuals shielded from discrimination under governmental statutes. Washington State explicitly delineates these classes under the WLAD, recognizing various categories within, inter alia, the realm of employment, including the following:

→ Age (40+)
→ Citizenship/Immigration Status
→ Creed;
→ Filing or Participating in an Employment Discrimination Complaint
→ HIV or Hepatitis C Status;
→ Honorably Discharged Veteran or Military Status;
→ Marital Status;
→ National Origin;
→ Presence of any sensory, mental, or physical Actual Disability or Perceived Disability;
→ Race / Color;
→ Sex (including pregnancy);
→ Sexual Orientation, including Gender Identity;
→ State-Employee or Health-Care Whistleblower Status;
→ Use of a Trained Dog Guide or Service Animal.

v. 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).

Conclusion

In conclusion, the exploration of protected classes within Washington State’s employment discrimination laws highlights the state’s commitment to fostering a workplace environment rooted in equality and fairness. The Washington Law Against Discrimination (WLAD), a robust statute enacted in 1949, serves as a powerful safeguard against unjust treatment based on specific attributes.

In essence, the WLAD stands as a cornerstone in Washington State’s pursuit of equal opportunities, reinforcing the principles of fairness, justice, and non-discrimination in employment. As we navigate the complexities of the modern workplace, understanding and upholding the rights of protected classes are crucial steps towards creating a truly inclusive and equitable work environment in the Evergreen State.

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January 18, 2024October 21, 2024

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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.

–gw

What is the Statute of Limitations for Wrongful Termination in WA?

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What is the Statute of Limitations for Wrongful Termination in WA?

(This article will only address claims under the Washington Law Against Discrimination, RCW 49.60. However, there are other laws (both state and federal) that might support a claim of wrongful termination.)

answer:

In Washington State, the statute of limitations for commencing a wrongful-termination lawsuit in a state court, under the Washington Law Against Discrimination (WLAD), is 3 years pursuant to RCW 4.16.080(2). See Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). However, there could also be earlier deadlines.

(Warning: It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for administrative relief (see below) and prospective lawsuits (see above). Therefore, the reader is strongly encouraged to contact an employment attorney to determine both the statute of limitations and when it begins to run for individual WLAD claims — please see our DISCLAIMER.)

Administrative Agencies (WSHRC & EEOC):

Generally, the jurisdictional time limitation for filing wrongful-termination complaints through administrative agencies such as the Washington State Human Rights Commission (WSHRC) and the U.S. Equal Employment Opportunity Commission (EEOC) is significantly shorter; however, this topic is beyond the scope of this article — speak to an attorney for more information. See “Warning,” above.

Other Relevant Laws:

Other employment laws (both state and federal) might also support a claim of “wrongful termination” in Washington State including, but not limited to the following:

→ Washington State Common Law (Wrongful Termination in Violation of Public Policy)

→ Title VII of the Civil Rights Act of 1964 (when the termination is discriminatory, based on a protected class)

→ Section 1981 (42 U.S.C. §1981) (when the termination supports a viable legal theory of racial discrimination)

Talk to an attorney to determine the statute of limitations for relevant state and federal laws. See “Warning,” above.

Additional Information:

A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.

READ OUR RELATED ARTICLES

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

» Constructive Discharge in WA State**

» Discriminatory Discharge

» Effective Date For Constructive Discharge (WA State)

» Retaliatory Discharge (WA State)

» EEOC: The Notice of Right to Sue

» Title VII of the Civil Rights Act of 1964

» WA State Human Rights Commission: Functions, Powers, and Duties

» WA State Torts: Wrongful Termination in Violation of Public Policy**

» WLAD Statute of Limitations

» WLAD Statute of Limitations: Equitable Tolling

**NOTE: This link will take you to our Williams Law Group Blog, an external website.

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January 18, 2024October 21, 2024

Canon: Expressio Unius Est Exclusio Alterius

Under Washington State canons of statutory construction, what is the canon expressio unius est exclusio alterius? Here’s my point of view.

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CANONS OF CONSTRUCTION

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

The Canon Expressio Unius Est Exclusio Alterius

According to the canon expressio unius est exclusio alterius:

[W]here a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature.

Magney v. Pham, 195 Wash.2d 795, 803, 466 P.3d 1077 (Wash. 2020) (citing Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wash.2d 94, 98, 459 P.2d 633 (1969)).

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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.

January 10, 2024October 21, 2024

Absence of Agency Implementing Rules (WA State)

Under Washington State laws, how do courts proceed in the absence of agency implementing rules when addressing associated statute-based issues? Here’s my point of view.

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ABSENCE OF AGENCY IMPLEMENTING RULES (WA STATE)

A Washington State agency “cannot promulgate a rule that exceeds its statutory mandate … neither can it diminish statutory protections by failing to act.” Kumar v. Gate Gourmet, Inc.*, 180 Wn.2d 481, 495, 325 P.3d 193 (Wash. 2014) (footnote omitted) (emphasis added).

Thus, when authorized Washington agencies fail to promulgate any implementing rules for statutes, courts must still recognize implicit requirements in those subject statutes. See id. at 496 (referencing Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004) (“[I]n interpreting a statute, the court’s ‘primary objective is to ascertain and give effect to the [legislature’s] intent and purpose'”)) (internal citation omitted).

(*NOTE: The link will take the reader to our Court Slips Blog – an external website.)

EXAMPLE: KUMAR v. GATE GOURMET, INC.

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

the plaintiffs filed suit

The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class. “The trial court dismissed the lawsuit in its entirety, finding that the WLAD [(i.e., Washington Law Against Discrimination)] contains no requirement that employers make reasonable accommodations for their employees’ religious practices.” Id. at 486. The plaintiffs appealed to the WA State Supreme Court.

defendant’s argument

Therein, Defendant-employer, Gate Gourmet, “[made] much of the fact that the HRC [(i.e., WA State Human Rights Commission)] has promulgated rules requiring employers to reasonably accommodate employees with disabilities, arguing that the HRC would have issued an identical rule mandating religious accommodations if it believed the WLAD required them.” Id. at 495.

Court’s ANALYSIS

The Court concluded, inter alia, that “the HRC’s rules did not create the reasonable accommodation requirement for disability–they merely implemented a requirement already inherent in the WLAD itself.” Id. (referencing Holland v. Boeing Co., 90 Wn.2d 384, 388-89, 583 P.2d 621 (1978) (finding “a reasonable-accommodation-for-disability requirement inherent in the ‘legislative policy’ embodied in the WLAD, even though that statute did not employ the term ‘accommodation'” )) (footnote omitted).

However, the Court declared that “[e]ven if the HRC had failed to promulgate any rules requiring reasonable accommodations for employee disabilities, this court would still have been required to recognize that implicit requirement in the WLAD’s provisions.” Id. at 495-96 (referencing Am. Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004) (“[I]n interpreting a statute, the court’s ‘primary objective is to ascertain and give effect to the [legislature’s] intent and purpose'” (citing State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002)))) (emphasis added).

the court must implement rcw 49.60.180 so as to give effect to legislature’s intent

Thus, the Court found that “with or without recourse to implementing rules, this court must interpret RCW 49.60.180** so as to give effect to the legislature’s intent. In this case, that means choosing between two competing interpretations of the statute: the interpretation that says it implies a reasonable-accommodation-for-religion requirement and the interpretation that says it lacks such a requirement.” Id. at 496. Ultimately, the Court found, inter alia, that “the employees … stated a claim for failure to reasonably accommodate their religious practices[ ]” – reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion. Kumar*, 180 Wn.2d at 503.

(*NOTE: The link will take the reader to our Court Slips Blog – an external website.)

(**NOTE: The link will take the reader to an external Washington State website.)

CONCLUSION

“[W]ith or without recourse to implementing rules, … [Washington] court[s] must interpret … [statutes] so as to give effect to the legislature’s intent.” Id. at 496.

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January 4, 2024October 21, 2024

Employment Law 101: Requests for Admission

Under Washington State laws, what are “Requests for Admission” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR ADMISSION (CIVIL LITIGATION)

Within the context of Washington State civil litigation, Requests for Admission (RFAs) play an important role in the pre-trial discovery process. This formal procedure allows parties involved in a lawsuit to narrow down the issues and facts that are genuinely in dispute. In this blog post, I discuss Requests for Admission, exploring their purpose and significance in the litigation process.

I. Definition and Purpose of Requests for Admission

Requests for Admission involve the creation of written statements by one party, which are then served on any other party within the pending action. These statements seek admissions or denials regarding particular facts or the authenticity of specific documents pertinent to the case. In contrast to alternative discovery methods, Requests for Admission specifically aim to refine and narrow down the issues in dispute, fostering increased efficiency in the legal proceedings.

The primary purposes of Requests for Admission in Washington State include:

1. Issue Framing:

RFAs help define and clarify the key issues that are genuinely in dispute between the parties. By stipulating certain facts, the parties can streamline the litigation process and avoid unnecessary disputes over uncontested matters.

2. Cost and Time Efficiency:

By admitting facts that are not in dispute, the parties can reduce the scope of the trial, thereby saving time and litigation costs. This promotes a more expeditious resolution of the case.

II. Significance in Litigation Strategy

Requests for Admission can significantly impact the overall litigation strategy. Properly executed RFAs can:

1. Narrow Down Issues:

By compelling the opposing party to admit certain facts, RFAs can help narrow down the issues in dispute, making the trial more focused and efficient.

2. Evidentiary Value:

Admissions made through RFAs can be used as evidence at trial. This can simplify the presentation of evidence and contribute to a more straightforward case presentation.

3. Cost Savings:

Streamlining the issues at an early stage through RFAs can lead to cost savings for both parties by minimizing the time and resources required for trial preparation.

Conclusion

Requests for Admission serve as a powerful tool in the toolkit of litigators in Washington State. When utilized effectively, RFAs can contribute to a more streamlined and cost-effective litigation process, ultimately facilitating the swift resolution of disputes. Understanding the procedural aspects and strategic implications of Requests for Admission is essential for legal professionals navigating the complex landscape of civil litigation in Washington State.

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December 28, 2023October 21, 2024

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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.

–gw

Employment Law 101: Requests for Production

Under Washington State laws, what are “requests for production” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR PRODUCTION

In the context of Washington State civil litigation, effective discovery processes play a crucial role in ensuring a fair and transparent legal system. One essential component of the discovery phase is the “request for production.” This legal mechanism serves as a powerful tool for parties involved in civil litigation, allowing them to obtain relevant documents and information from the opposing party. In this blog post, I explain the request for production within the context of Washington State civil-litigation law.

Definition and Purpose

A request for production is a formal legal request made by one party to another, seeking the production of documents, electronically stored information, and things; or entry onto land for inspection and other purposes. Generally, the requested production must be relevant to the pending litigation. This process is governed by the Washington State civil rules (and associated local court rules), which outline the procedures and guidelines for civil cases within the state.

The primary purpose of a request for production is to facilitate the exchange of information between parties, ensuring that each side has access to the necessary evidence to build and present their case. This mechanism promotes transparency, fairness, and the efficient resolution of legal disputes.

Key Components of a Request for Production

Specificity and Relevance:

• Requests must be specific and clearly state the documents or items being sought.

• Generally, the requested items must be relevant to the issues in the case.

Timing and Procedure:

• Requests for production are typically made after the initial pleadings but before trial.

• Parties must adhere to the timelines and procedures outlined in the Washington State civil rules (and associated local court rules).

Format and Delivery:

• Requests must be in writing and served on the opposing party.

• The requesting party must “specify a reasonable time, place, and manner of making the production and performing the related acts[.]” See CR 34(b)(2)(B).

Objections and Responses:

• The party responding to the request is entitled to raise objections. It is imperative that objections be voiced promptly, and the corresponding responses must be furnished within the specified time constraints.

Privilege and Confidentiality:

• Generally, the requesting party cannot demand the production of documents protected by attorney-client privilege or other recognized privileges.

• The responding party may redact or withhold certain information based on privilege or confidentiality.

Consequences of Non-Compliance

Failure to comply with a valid request for production can have serious consequences. The court may impose sanctions, including monetary penalties or adverse inferences against the non-compliant party. Therefore, parties should approach the request for production process with diligence and in full accordance with the established legal framework.

Conclusion

Requests for production are a fundamental element in the Washington State civil-litigation, discovery process. Ensuring compliance with the Washington rules of civil procedure enables parties to establish an equitable exchange of information, fostering an environment of fairness and ultimately supporting the equitable resolution of legal conflicts. Given the intricacies involved in requests for production and other discovery mechanisms, parties are encouraged to seek the counsel of seasoned legal professionals for effective navigation of the legal processes.

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December 27, 2023October 21, 2024

» Employment Law 101: Requests for Admission

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–gw

Religious Affiliation Disclosure

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, may an employer require religious affiliation disclosure by employees? Here’s my point of view.

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WLAD: RELIGIOUS AFFILIATION DISCLOSURE (RCW 49.60.208)

The relevant law can be found under RCW 49.60.208, and it states as follows:

Unfair practice—Religious affiliation disclosure.

It is an unfair practice for an employer to:

(1) Require an employee to disclose his or her sincerely held religious affiliation or beliefs, unless the disclosure is for the purpose of providing a religious accommodation at the request of the employee; or

(2) Require or authorize an employee to disclose information about the religious affiliation of another employee, unless the individual whose religious affiliation will be disclosed

(a) expressly consents to the disclosure, and

(b) has knowledge of the purpose for the disclosure.

Id. (emphasis added).

EXCEPTION — RELIGIOUS ACCOMMODATION

Under this exception, an employer may require an employee to disclose their “sincerely held religious affiliation or beliefs” if it is for the purpose of providing an employee-requested religious accommodation. Read more about this topic by viewing our article: Failure to Accommodate Religious Practices.

EXCEPTION — BOTH EXPRESS CONSENT AND KNOWLEDGE OF PURPOSE

Under an additional exception, an employer may either authorize or require an employee (“Revealing Employee”) to reveal information about another employee’s (“Subject Employee’s”) religious affiliation if the Subject Employee both expressly consents to the disclosure and has knowledge of the reason for the revelation.

REMEDIES

Under the WLAD, “[a]ny 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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» Failure to Accommodate Religious Practices

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December 21, 2023October 21, 2024

Employment Law 101: Interrogatories

Under Washington State laws, what are “interrogatories” within the context of civil legal proceedings? Here’s my point of view.

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Introduction: Interrogatories (WA State)

Within the context of legal proceedings, the effective utilization of discovery tools is essential for building a strong case. The interrogatory is a discovery tool that plays a substantial role in shaping the pre-trial phase. This article will address the purpose, scope, and essential guidelines of interrogatories.

What Are Interrogatories?

Interrogatories function as a written discovery technique that involves one party creating a set of questions for the opposing side in a legal dispute. The main goal is to elicit specific information essential to the case, assisting both parties in gathering facts, defining issues, and developing a well-grounded legal strategy. Unlike other discovery methods like requests for production of documents or requests for admission, interrogatories specifically focus on obtaining information through written responses.

Purpose and Scope in Washington State Law

In Washington State, interrogatories serve several essential purposes in civil litigation:

Fact Gathering

Interrogatories allow parties to obtain detailed information about the facts surrounding the case. This can include details about the opposing party’s claims, defenses, and the evidence they intend to present.

Issue Clarification

Interrogatories help to define and clarify the legal and factual issues in dispute. By asking targeted questions, parties can narrow down the focus of the case and streamline subsequent legal proceedings.

Preventing Surprises at Trial

Through the exchange of interrogatories, parties can reduce the element of surprise at trial. This promotes fair and transparent proceedings, giving each side an opportunity to understand the other’s position thoroughly.

Witness Identification

Interrogatories often include questions about potential witnesses, helping parties identify and locate individuals with relevant information. This aids in the preparation of witness lists and deposition schedules.

Key Guidelines for Interrogatories in Washington State

To maximize the effectiveness of interrogatories in Washington State, parties must adhere to specific guidelines:

Timeliness

Interrogatories must be served within the stipulated timeframes established by the Washington Civil Rules. Non-compliance may result in objections or the exclusion of sought-after information.

Relevance

Generally, questions posed in interrogatories may include “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” See CR 26. Parties have the right to object to overly broad, unduly burdensome, or privileged information-seeking questions.

Format and Style

Clear, concise, and easily comprehensible questions are essential. Ambiguous or convoluted inquiries may lead to objections, potentially causing delays in the discovery process.

Comprehensive Responses

Responding parties are obligated to furnish complete and truthful answers. Failure to do so may result in sanctions, including adverse inferences or the exclusion of evidence.

CONCLUSION

Within the context of Washington State civil litigation, interrogatories are an indispensable discovery tool. They enable parties to improve their capacity for collecting crucial information, clarifying legal issues, and constructing a persuasive case. Adhering to the guidelines set forth by Washington State law ensures that the discovery process maintains fairness and transparency within adversarial legal proceedings. Given the intricacies involved in interrogatories and other discovery mechanisms, parties are encouraged to seek the counsel of seasoned legal professionals for effective navigation of the legal processes.

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December 7, 2023October 21, 2024

» Employment Law 101: Requests for Admission

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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.

–gw

Unlawful Retaliation and the Prospective Employer

Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, is there a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

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.

(*NOTE: The link will take the reader directly to our Williams Law Group Blog.)

WLAD ANTIRETALIATION PROVISION

The relevant WLAD antiretaliation provision is as follows:

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.

RCW 49.60.210(1) (emphasis added). The term “employer” is vague.

WLAD DEFINITION OF EMPLOYER

The WLAD definition of the term “employer” is found under RCW 49.60.040(11) and states as follows:

(11) “Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

Id. The issue is whether this definition also applies to prospective employers. In other words, does the WLAD prohibit retaliatory discrimination by prospective employers against job applicants? The Washington State Supreme Court addressed this issue in Certification From the U.S. District Court for the Eastern District of WA in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) .

CERTIFICATION FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT–ESD 171

In Cert. From U.S. District Court for Eastern Dist. of WA in Jin Zhu v. North Central Educational Service District-ESD 171, the plaintiff (Zhu) was a job applicant who claimed that “a prospective employer refused to hire [him] in retaliation for prior opposition to discrimination against a different employer[.]” See id. at 506. Zhu subsequently filed suit against the prospective employer in federal district court alleging, inter alia, that it violated WLAD’s antiretaliation statute, RCW 49.60.210(1).

Plaintiff Zhu ultimately “prevailed on his WLAD antiretaliation claim and was awarded damages.” Id. at 507. The defendant (ESD 171) then filed a motion asking, inter alia, “that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.” Id. (hyperlink added). Accordingly, “the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme Court]:”

Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?

Zhu, 404 P.3d at 507 (internal quotation marks omitted) (hyperlink added).

(*NOTE: The link will take the reader directly to our Washington Employment Law Digest Blog.)

DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER

The Washington State Supreme Court answered the certified question in Zhu affirmatively and addressed the plain language and scope of WLAD’s antiretaliation provision, WLAD’s definition of employer, and the policy of WLAD.

The Court ultimately held that “[i]n accordance with the plain language of the Washington Law Against Discrimination, Chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1)”; therefore, Zhu stated a valid cause of action based on his claim of unlawful retaliation. See Zhu, 404 P.3d at 506 (hyperlinks added).

During its analysis, the Court also expounded on WLAD’s definition of the term “employer” as follows:

[The WLAD definition of employer (RCW 49.60.040(11))] clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.

Zhu, 404 P.3d at 509 (emphasis and hyperlink added).

CONCLUSION

Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, there is a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer.

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

Unlawful Retaliation: The Actual-Knowledge Standard

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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December 7, 2023October 21, 2024

Employment Law 101: Mediation

Under Washington State laws, what is “mediation” within the context of civil legal proceedings? Here’s my point of view.

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Introduction: Mediation

In the context of civil legal proceedings, resolving disputes can be a complex and time-consuming endeavor. Traditional litigation often involves adversarial processes that may strain relationships and escalate conflicts. Mediation, however, offers an alternative approach that focuses on collaboration and resolution rather than confrontation. In this article, we will explore what mediation is within the context of legal proceedings, its principles, and how it can be a valuable tool for achieving mutually acceptable outcomes.

What is Mediation?

Mediation serves as a type of alternative dispute resolution (ADR), employing a neutral third party, referred to as the mediator, to facilitate communication and negotiation among conflicting parties. In contrast to the role of a judge or arbitrator, who makes binding decisions, a mediator aids disputing parties in achieving a voluntary agreement. The mediator typically refrains from advocating for a specific outcome but instead guides the process, emphasizing fairness and equity in the pursuit of resolution.

Key Principles of Mediation

1. Voluntary Participation:

Mediation is a voluntary process, and all parties must agree to participate. This voluntary aspect empowers participants and fosters a sense of ownership over the resolution.

2. Confidentiality:

Confidentiality is a cornerstone of mediation. Parties can openly discuss their concerns, share information, and explore potential solutions without fear that their statements will be used against them in future legal proceedings.

3. Impartiality:

The mediator remains neutral and impartial throughout the process. They do not take sides or express personal opinions, ensuring that the focus remains on the needs and interests of the parties involved.

4. Informality:

Mediation is typically less formal than courtroom proceedings. This informality encourages open communication and allows for creative problem-solving, unencumbered by rigid legal procedures.

5. Mutual Agreement:

The goal of mediation is to reach a mutually acceptable agreement. This emphasis on collaboration distinguishes mediation from adversarial processes, promoting a sense of fairness and cooperation.

How Mediation Works

1. Opening Statements:

The mediator begins by explaining the process and setting ground rules. Typically, each party then has an opportunity to make an opening statement, outlining their perspective on the dispute. NOTE: Prior to the mediation date, the mediator might prompt the parties to each provide a written position statement–that conforms to the mediator’s requirements–for use at mediation.

2. Joint and Private Sessions:

The mediator may conduct joint sessions where both parties are present, as well as private sessions with each party individually. This allows for open communication and confidential discussions.

3. Identifying Issues and Interests:

Through guided discussions, the mediator helps the parties identify the underlying issues and interests driving the conflict. Understanding these factors is crucial for finding common ground.

4. Generating Options:

The parties, with the mediator’s assistance, explore various options for resolution. This phase encourages creativity and flexibility in finding solutions that meet the needs of all involved.

5. Reaching Agreement:

Once the parties agree on a resolution, the terms are formalized into a written agreement. This agreement is not legally binding until both parties voluntarily sign it.

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Benefits of Mediation

1. Time and Cost Efficiency:

Mediation often concludes more swiftly and at a lower cost than traditional litigation, making it an attractive option for resolving disputes efficiently.

2. Preservation of Relationships:

Unlike adversarial processes that can strain relationships, mediation fosters communication and collaboration, preserving or even improving relationships between parties.

3. Empowerment and Control:

Participants have greater control over the outcome in mediation, as they actively participate in crafting the resolution, leading to a more satisfying and sustainable agreement.

4. Confidentiality and Privacy:

The confidential nature of mediation provides a safe space for parties to openly discuss their concerns without fear of public disclosure.

Conclusion

Mediation is a valuable alternative within civil legal proceedings, offering a collaborative and flexible approach to dispute resolution. By embracing principles of voluntariness, confidentiality, and impartiality, mediation empowers parties to actively engage in finding solutions tailored to their unique needs. At a time where efficiency, cost-effectiveness, and relationship preservation are paramount, mediation can be a compelling option for those seeking to resolve legal conflicts with fairness and dignity.

Read Our Related Articles

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

» Employment Law 101: Alternative Dispute Resolution

» Employment Law 101: Summary Judgment (WA State)

December 7, 2023October 21, 2024

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–gw

Canon: Noscitur A Sociis

Under Washington State canons of statutory construction, what is the canon noscitur a sociis? Here’s my point of view.

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THE CANON NOSCITUR A SOCIIS

According to the canon noscitur a sociis:

[T]he meaning of an unclear word or phrase should be determined by the words immediately surrounding it.

Black’s Law Dictionary 1087 (Deluxe 8th ed. 2004); Hous. Auth. v. Parker, No. 39089-6-III, slip op. at 7 (Div. 3 Sept. 21, 2023) (“Under the canon[ ] of noscitur a sociis … the use of the word “other” to modify a general term can signify legislative intent that the general term shares some sort of attribute with preceding, more specific terms.” (emphasis in original)).

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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.

-gw

November 30, 2023October 21, 2024

Employment Law 101: Statute of Limitations

Under Washington State laws, what is the meaning of “statute of limitations” within the context of civil litigation? Here’s my point of view.

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Introduction: Statute of Limitations

Within the context of Washington State civil litigation, the concept of the statute of limitations serves as an essential thread that weaves together justice, fairness, and practicality. Rooted in the belief that legal actions should be pursued within a reasonable timeframe, the statute of limitations imposes a temporal boundary on the initiation of lawsuits. This legal doctrine aims to strike a delicate balance between the need for timely resolution and the preservation of fundamental fairness. In this article, I will define the term, address its key principles, and discuss exceptions and tolling.

Defining Statute of Limitations

The statute of limitations is a legal principle that dictates the maximum time allowed for a plaintiff to bring a lawsuit or legal action against a defendant. Its primary purpose is to ensure that legal disputes are resolved promptly, avoiding the complications that arise from the passage of time, such as fading memories, lost evidence, and changes in circumstances.

Statutes of limitations can vary depending on the legal theory; to learn about the statute of limitations for employment discrimination claims under the Washington Law Against Discrimination (WLAD), we invite you to read our article entitled: WLAD Statute of Limitations.

Key Principles

1. Preserving Evidence and Witness Testimony:

The statute of limitations acts as a safeguard against the deterioration of evidence and witness testimony over time. It recognizes the inherent challenges of litigating a case where memories may fade, documents may be lost, and witnesses may become unavailable.

2. Promoting Judicial Efficiency:

Efficiency is a cornerstone of the American legal system, and the statute of limitations plays a vital role in achieving this goal. By encouraging prompt legal action, it helps prevent the clogging of court dockets with stale claims, allowing the legal system to focus on resolving current and pressing issues.

3. Balancing Fairness and Finality:

The statute of limitations embodies the principle of fairness by providing a degree of legal certainty for potential defendants. Once the prescribed time limit has passed, individuals and entities can reasonably expect to be free from the threat of litigation related to a particular incident, promoting finality in legal matters.

Exceptions and Tolling

While the statute of limitations is generally rigid, exceptions and tolling provisions exist. These may include circumstances such as the discovery of fraud or the minority of the plaintiff at the time of the incident, which can extend the time frame within which legal action can be initiated. To learn more about tolling the statute of limitations for employment discrimination claims under the WLAD, we invite you to read our article entitled: WLAD Statute of Limitations: Equitable Tolling.

Conclusion

The statute of limitations serves as a guardian of justice, ensuring that legal disputes are resolved in a timely manner while balancing the interests of both plaintiffs and defendants. Understanding the nuances of these temporal boundaries is vital for anyone handling lawsuits or legal actions, highlighting the intricate interplay between fairness, efficiency, and the pursuit of justice within the bounds of time.

Read Our Related Articles

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» Employment Law 101: Alternative Dispute Resolution

» Employment Law 101: Summary Judgment (WA State)

November 25, 2023October 21, 2024

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–gw

Removal of State Civil Actions: Time Limitation

Under federal laws, what is the time limitation for removal of Washington State civil actions to U.S. District Courts? Here’s my point of view.

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WHY DO DEFENDANTS REMOVE LAWSUITS FROM STATE COURT TO FEDERAL COURT?

In my practice, I only represent employees and former employees against their employers based upon violations of state and federal employment discrimination laws. I typically file such lawsuits in Washington State superior courts where the number of jurors required to render a verdict for my plaintiff-clients is less than unanimous. In such circumstances, employer-defendants typically attempt to remove my cases to a U.S. district court for a variety of reasons — one likely being the requirement of a unanimous jury verdict for a plaintiff victory. However, defendant-employers are sometimes oblivious to the time limitation for removal of state civil actions to federal court, and I’ve successfully used the following statue as a “shield” against removal under similar circumstances.

FEDERAL COURT: TIME LIMITATION FOR REMOVAL OF CIVIL ACTIONS

The relevant statue is 28 U.S.C. § 1446 (Procedure for removal of civil actions), and it states as follows:

(a) Generally.—

A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; Generally.—

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446 (emphasis and hyperlinks added).

CONCLUSION

A state-court movant must file a notice of removal of a civil action/proceeding in U.S. district court within 30 days after receipt by the defendant of a copy of the initial pleading; or within 30 days after service of summons upon defendant (if such initial pleading has been filed in court and is not required to be served upon defendant — whichever period is shorter).

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November 23, 2023October 21, 2024

Employment Law 101: The Defendant

Under Washington State laws, what is a “defendant” within the context of civil lawsuits? Here’s my point of view.

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Introduction: The Defendant

In the context of civil lawsuits, the term “defendant” plays an essential role, embodying an individual or entity faced with legal action. This key figure is central to the adversarial nature of the legal system, where parties with conflicting interests present evidence and arguments before a court. In this blog post, we will delve into the definition and significance of a defendant in the context of Washington State civil lawsuits. NOTE: For purposes of employment law, employment-discrimination lawsuits are considered civil lawsuits.

Definition of Defendant

In civil litigation, a defendant refers to the party against whom a legal action is initiated. This legal term encompasses individuals, organizations, businesses (e.g., sole proprietorships, partnerships, etc.), corporations, government entities, or any other legal entity that finds itself at the receiving end of a civil lawsuit.

For purposes of Washington State employment-discrimination law, defendants are usually employers, and the Washington Law Against Discrimination defines the term as follows:

‘Employer‘ includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

RCW 49.60.040(11) (hyperlinks and emphasis added).

The civil-litigation defendant is tasked with responding to the claims made by the plaintiff, the party that initiates the legal proceedings.

Initiation of Civil Lawsuits

In Washington State, plaintiff’s who are convinced of having experienced harm or injustice commonly initiate civil lawsuits by both filing with the court and serving on the defendant a summons and complaint.

the summons

The summons is an instrument that appraises defendants of civil legal proceedings against them and provides notice of the opportunity to appear and be heard.

the complaint

The complaint delineates the plaintiff’s grievances and establishes the legal foundation for seeking redress.

Role and Responsibilities of the Defendant (Civil Litigation)

Upon receiving the summons and complaint, the defendant must respond within a specified period, typically outlined in the court documents. This response is a critical phase in the legal process and typically involves the defendant either admitting or denying the allegations presented by the plaintiff. The defendant may also present counterclaims, asserting that the plaintiff is responsible for the harm or seeking legal remedies related to the same incident; and if there are codefendants, each may present crossclaims against the other.

right to legal representation

Throughout the litigation process, the defendant has the right to legal representation. Attorneys play a pivotal role in crafting a defense strategy, gathering evidence, and presenting arguments in favor of the defendant’s position. This legal representation is crucial in navigating the complexities of civil law and ensuring a fair and just resolution.

Conclusion

In civil lawsuits, the defendant is a cornerstone of the legal process, representing the party against whom legal action is taken. Understanding the role and responsibilities of a defendant is vital for comprehending the dynamics of civil litigation. As the legal system strives for justice, the defendant’s right to a fair defense ensures a balanced and impartial resolution to disputes within the framework of American civil law.

Read Our Related Articles

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November 16, 2023October 21, 2024

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–gw

Employment Law 101: Summary Judgment (WA State)

Under Washington State laws, what is “summary judgment” within the context of a lawsuit? Here’s my point of view.

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Introduction: Summary Judgment

In Washington State, the term “summary judgment” holds significant weight and plays a crucial role in the legal process. It is a procedural tool that allows parties in a lawsuit to seek a swift resolution without proceeding to a full trial; within the context of employment law, employer-defendants typically use this tool against employee–plaintiffs during litigation. This article aims to shed light on the concept of summary judgment within the context of Washington State law, outlining its purpose, criteria, and implications for litigants.

Overview of Summary Judgment

Summary judgment is a legal mechanism designed to expedite the resolution of cases by allowing the court to decide a case without a trial when there is no genuine dispute of material facts. This process is grounded in the belief that if there are no factual issues in dispute, the case can be resolved based on the applicable law. View the associated Washington State Superior Court Civil Rule (CR 56) — NOTE: the link will take you to an external website managed by Washington State.

Purpose and Criteria

The primary purpose of summary judgment is to save time and resources by eliminating the need for a trial when there is no real controversy. To be granted summary judgment in Washington State, a moving party must demonstrate the absence of any genuine issues of material fact and establish that they are entitled to judgment as a matter of law.

Key Criteria for a Successful Motion for Summary Judgment

1. No Genuine Dispute of Material Facts:

The movant must show that there are no genuine disputes regarding the essential facts of the case. All relevant facts must be clear and uncontested.

2. Legal Entitlement to Judgment:

The movant must demonstrate that, based on the established facts and applicable law, they are entitled to judgment in their favor.

3. Burden of Proof:

The burden of proof rests with the party seeking summary judgment. They must present sufficient evidence to convince the court that no trial is necessary.

4. Admissible Evidence:

The proof presented to support a motion for summary judgment must be admissible and adhere to the legal standards mandated by the court.

Implications and Limitations

While summary judgment is a powerful tool, it is not applicable in all cases. Certain types of claims, such as those involving credibility determinations or complex factual disputes, may be less amenable to summary judgment. Additionally, it is not a substitute for a trial when there are genuine issues of material fact that must be resolved by the trier of fact.

Conclusion

Under Washington State laws, summary judgment serves as an effective mechanism for streamlining the legal process and promoting judicial efficiency. It allows for the prompt resolution of cases where there is no real dispute of material facts. Within the context of employment law, employer-defendants typically use this tool against employee-plaintiffs during litigation.

Read Our Related Articles

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–gw

Employment Law 101: Legal Theory

Under Washington State jurisprudence, what does “legal theory” mean within the context of a lawsuit? Here’s my point of view.

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Introduction

In a lawsuit, legal theory is a fundamental concept that underpins the structure of legal arguments and decision-making processes. It is the theoretical framework that guides legal professionals, shaping the way they present and interpret the law in court. An understanding of legal theory is essential for all parties involved in a lawsuit, as it can significantly influence the outcomes of legal proceedings. This article delves into what legal theory means within the context of a lawsuit and why it is of paramount importance.

Defining Legal Theory in a Lawsuit

Legal theory in a lawsuit encompasses the set of principles, doctrines, and jurisprudential perspectives that provide the intellectual foundation for the legal arguments presented by both sides. It is the theoretical lens through which the parties build their cases and the standard by which courts assess the merits of their claims. Legal theory serves as a roadmap for constructing and evaluating legal arguments, offering a conceptual framework that informs legal reasoning throughout the litigation process.

Key Components of Legal Theory in a Lawsuit

1. Legal Frameworks:

Legal theories often draw from established legal frameworks, such as employment law, contract law, tort law, or criminal law, to provide a structured basis for presenting arguments. These frameworks help categorize and analyze the issues central to the case.

2. Legal Precedents:

Legal theory places a strong emphasis on precedent, which refers to prior court decisions that serve as authoritative references. Parties in a lawsuit often cite these precedents to support their legal arguments and demonstrate how the law has been applied in similar situations.

3. Statutory Interpretation:

When statutory law is a critical component of a lawsuit, legal theory involves the interpretation of relevant statutes. Parties may employ different theories of statutory construction, such as textualism or purposivism, to argue for their preferred interpretation of the law.

4. Legal Principles:

Legal theories often incorporate fundamental legal principles, such as the prima facie case in employment-law cases, presumption of innocence in criminal cases or the duty of care in tort cases. These principles help guide the court in determining liability or guilt.

Importance of Legal Theory in a Lawsuit

1. Framing Legal Arguments:

Legal theory provides a structured framework for crafting persuasive legal arguments. Attorneys use legal theories to identify the relevant legal principles and precedents that support their client’s case and present them in a coherent and compelling manner.

2. Shaping Case Strategy:

Legal theory informs the overall strategy of each party in a lawsuit. It helps attorneys make informed decisions about which claims to pursue, which defenses to raise, and which legal doctrines to emphasize to maximize their chances of success.

3. Guiding Judicial Decision-Making:

Judges rely on legal theory when making decisions in a case. They evaluate the legal arguments presented by the parties in the context of established legal principles and precedents, ensuring that the court’s rulings align with the law.

4. Promoting Consistency:

Legal theory contributes to consistency in the legal system by providing a common framework for understanding and applying the law. This consistency is crucial for ensuring predictability and fairness in legal outcomes.

Examples: Employment-Law Legal Theories

Some examples of employment-law legal theories include, but are not limited to the following (click a link to learn more):

→ Disparate Impact
→ Disparate Treatment
→ Failure To Provide Reasonable Accommodations
→ Harassment
→ Hostile Work Environment
→ Retaliation
→ Wrongful Termination/Discharge

Conclusion

In a lawsuit, legal theory serves as the intellectual foundation that guides legal professionals through the complexities of litigation. It plays a critical role in constructing persuasive arguments, shaping case strategy, and influencing judicial decisions. Whether you are a litigant, an attorney, or someone affected by a lawsuit, a solid grasp of the legal theories at play is essential for understanding the dynamics of legal proceedings and ensuring that justice is administered in accordance with the law. Legal theory is not an abstract concept but rather the practical underpinning of every lawsuit, determining how the law is applied and justice is achieved.

Read Our Related Articles

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» Employment Law 101: Alternative Dispute Resolution

» Employment Law 101: Summary Judgment (WA State)

November 5, 2023October 21, 2024

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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.

–gw

Employee Assistance Programs

Under Washington State laws, what are prohibited acts with respect to an employee’s participation or nonparticipation in employee assistance programs? Here’s my point of view.

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EMPLOYEE ASSISTANCE PROGRAMS (EAPs)

In Washington State, “[a]n employee assistance program (EAP) helps employees and sometimes family members address work and life concerns.” Washington State Health Care Authority Website, Employee Assistance Program (EAP) (last visited 1/11/23). “EAPs are usually free and confidential programs designed to promote health, safety, and well-being[ ][;] [t]hey often support a wide range of issues such as depression, stress, addictions, anger, parenting, relationships, and grief and loss.” Id.

THE EAP CONFIDENTIALITY PROVISION

Washington State law contains a confidentiality provision with respect to an employee’s participation or nonparticipation in an EAP. Namely: “It is unlawful for an employer to obtain individually identifiable information regarding an employee’s participation in an employee assistance program. Individually identifiable information gathered in the process of conducting an employee assistance program must be kept confidential.” RCW 49.44.220 (hereinafter, “EAP confidentiality provision”).

EXCEPTIONS

There are exceptions to the EAP confidentiality provision. “Individual employees’ participation in the employee assistance program and all individually identifiable information gathered in the process of conducting the program shall be held in strict confidence; except that agency management may be provided with the following information about employees referred by that agency management due to poor job performance:

(1) Whether or not the referred employee made an appointment;

(2) The date and time the employee arrived and departed;

(3) Whether the employee agreed to follow the advice of counselors; and

(4) Whether further appointments were scheduled.

RCW 41.04.730 (emphasis added). The EAP confidentiality provision is also inapplicable to the following disclosures:

(1) Disclosures to an employer regarding an employee’s attendance in an employee assistance program, which the employee was required to attend as a condition of continued employment; and

(2) Disclosures that are made to prevent or lessen a perceived threat to the health or safety of an individual or the public; or disclosures that are permitted or required under RCW 18.225.105, 70.02.050, or 71.05.120.

See RCW 49.44.220(1)(b).

EMPLOYMENT RIGHTS

Lastly, the law provides that “[a]n employee’s participation or nonparticipation in an employee assistance program must not be a factor in a decision affecting an employee’s job security, promotional opportunities, corrective or disciplinary action, or other employment rights.” RCW 49.44.220(2).

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November 2, 2023October 21, 2024

Employment Law 101: Remedies

Under the Washington Law Against Discrimination, what remedies are available when pursing claims of employment discrimination? Here’s my point of view.

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The Washington Law Against Discrimination (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

Unfair Practices of Employers

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

RCW 49.60.180 (emphasis and hyperlinks added). NOTE: The foregoing unfair practices are based upon specific protected classes.

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Unlawful Retaliation

The WLAD also outlaws certain types of retaliation: “[i]t 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 … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.” RCW 49.60.210.

WLAD Remedies

The WLAD is a powerful anti-discrimination law, and the scope of available remedies is equal in magnitude. The relevant section, RCW 49.60.030(2), states as follows:

Any person deeming himself or herself injured by any act in violation of this chapter 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). The WLAD is clearly a broad remedial statute. See Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 237, 59 P.3d 655, (2002) (hyperlink added).

Remedy Examples (Nonexclusive)

Accordingly, Washington courts allow a variety of remedies to enable Plaintiffs to be made whole. Such relief may include, but is not limited to any one or more of the following:

1. Enjoin further violations (e.g., Injunctive Relief, including, but not limited to, Reinstatement)

2. Recover the actual damages (e.g., Back Pay, Front Pay, Emotional Distress, Costs, Attorney Fees, etc.)

3. Any other appropriate remedy authorized by WLAD, the US Civil Rights Act of 1964, or the Federal Fair Housing Amendments Act of 1988 (e.g., Mental Anguish, Inconvenience, Loss of Enjoyment of Life, Medical Expenses, Tax Set-Off, Expert Witness Fees, etc.)

See RCW 49.60.030(2).

Punitive Damages

However, punitive damages are not available under the WLAD. See Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 151 P.3d 976, (2007) (citing Dailey v. North Coast Life Insurance Company, 129 Wash.2d 572, 575, 919 P.2d 589 (1996)). Read more about punitive damages under the WLAD by viewing our article: Punitive Damages Are Unavailable Under WLAD (NOTE: the link will take the reader to our Williams Law Group Blog, an external website).

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–gw

Employment Law 101: Motions

Under Washington State laws, what are “motions” within the context of litigation? Here’s my point of view.

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Introduction: Motions

Within the context of legal proceedings, motions play a fundamental role in the pursuit of justice and the efficient functioning of the judicial system. In Washington State, as in most jurisdictions, motions serve as crucial tools for parties to request specific actions or decisions from the court. This blog post aims to provide an understanding of what a motion is within the context of Washington State law.

What is a Motion?

A motion is a formal request made by a party to a lawsuit to the court for a specific ruling or action. These requests can encompass a wide range of matters, from procedural issues to substantive legal questions. In Washington State law, motions are vital in shaping the course of litigation and ensuring a fair and just outcome.

Types of Motions

1. Procedural Motions:

These motions pertain to the conduct of the lawsuit rather than the underlying legal issues. Common procedural motions in Washington State include motions for continuance, motions to dismiss, motions for summary judgment, and motions to compel discovery.

2. Substantive Motions:

Substantive motions deal with the actual legal issues of the case. Examples of substantive motions in Washington State law include motions for injunctive relief, motions for a new trial, and motions for judgment as a matter of law (formerly known as judgments notwithstanding the verdict).

3. Interlocutory Motions:

These motions are made before a final judgment in a case, and they typically address temporary or preliminary matters. A common example in Washington State is a motion for a preliminary injunction, which seeks to preserve the status quo while the case is ongoing.

4. Ex Parte Motions:

An ex parte motion is made by one party without notice to the opposing party. These are usually reserved for emergency situations where immediate action is necessary, such as a protective order or temporary restraining order.

5. Oral vs. Written Motions:

In Washington State, parties may make oral motions during court hearings or submit written motions, depending on the specific court rules and the nature of the request. Generally, written motions provide a more detailed and organized presentation of the argument.

General Procedure for Filing a Motion

1. Draft the Motion:

A motion should be drafted carefully, following the relevant rules and format requirements. It must state the specific request, the legal basis for the request, and any supporting evidence or case law.

2. Serve the Opposing Party:

In Washington State, the rules of civil procedure usually require that the motion and any supporting documents be served on the opposing party. The timing and method of service can vary based on the nature of the motion and the court’s rules.

3. Set a Hearing Date:

Many motions in Washington State require a hearing where both parties can present their arguments before the court. The party filing the motion typically schedules this hearing with the court and provides notice to the opposing party.

4. Court Decision:

After the hearing, the court will make a ruling on the motion. The court’s decision may be immediate or take some time, depending on the complexity of the issues involved.

Conclusion

In the complex legal landscape of Washington State, motions are indispensable tools that shape the trajectory of legal proceedings. Whether addressing procedural matters or substantive legal issues, motions are key instruments for parties to seek redress, ensure a fair trial, and promote the orderly administration of justice. Understanding the various types of motions and the procedural aspects of filing them is essential for anyone navigating the Washington State legal system.

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October 19, 2023October 21, 2024

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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.

–gw

Employment Law 101: The Plaintiff

Under Washington State laws, what is the meaning of the term “plaintiff“? Here’s my point of view.

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Definition of Plaintiff

Under Washington State law, the term “plaintiff” holds a pivotal role. A plaintiff is a fundamental figure in the legal landscape, serving as the catalyst for the pursuit of justice and the resolution of disputes.

A plaintiff, in the context of Washington jurisprudence, is an individual or entity who initiates a legal action by filing a complaint in a court of law. This party is often described as the “aggrieved party” or the party that claims to have suffered some harm, injury, or loss due to the actions or negligence of another individual, entity, or even the government. The plaintiff seeks legal redress, typically in the form of damages, injunctions, or specific remedies.

This article delves into the concept of the plaintiff within the context of Washington State law, elucidating their roles and responsibilities in the state’s unique legal landscape.

Roles and Responsibilities of a Plaintiff

Initiating Legal Actions:

The plaintiff plays a critical role in commencing legal proceedings. They are responsible for drafting and filing a complaint, which outlines the specific facts, legal claims, and remedies sought in the case. This complaint serves as the foundation upon which the entire legal process is built.

Proving the Case:

Once the complaint is filed, the plaintiff has the responsibility to prove their case. This involves gathering evidence, presenting witnesses, and making legal arguments to establish that the defendant is liable for the harm or violation alleged in the complaint.

Legal Standing:

To file a lawsuit, a plaintiff in Washington State must have legal standing, meaning they must demonstrate a direct, personal interest in the case. This ensures that only those who are genuinely affected by the issue at hand can bring it before the court.

Engaging Legal Representation:

Plaintiffs often seek legal counsel to help navigate the complexities of the legal system. Attorneys, also known as lawyers, provide valuable expertise in formulating legal strategies, collecting evidence, and representing the plaintiff’s interests in court.

Negotiation and Settlement:

In many cases, plaintiffs, through their attorneys, engage in negotiations with the defendant to reach a settlement before proceeding to trial. Settlements can be an efficient way to resolve disputes without the time and cost of a full trial.

Participation in Court Proceedings:

Plaintiffs are actively involved in court proceedings. They may need to testify as witnesses, provide depositions, and be present during hearings and trial proceedings. Their active participation is crucial in presenting their case effectively.

Seeking Remedies:

Plaintiffs in Washington State typically seek remedies such as monetary compensation, injunctive relief (a court order to stop or prevent certain actions), or specific performance (requiring a party to fulfill contractual obligations). The type of remedy sought depends on the nature of the case.

Conclusion

The role of the plaintiff in Washington State jurisprudence is fundamental to the state’s legal system. Plaintiffs are responsible for initiating legal actions, substantiating their claims, and seeking remedies for alleged injuries and legal infractions. Their role embodies the spirit of justice in Washington State, providing individuals and entities with the means to seek redress and resolution through the state’s legal institutions. An understanding of the plaintiff’s responsibilities is paramount for comprehending the nuances of the legal process in Washington State and ensuring access to justice in this jurisdiction.

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September 21, 2023October 21, 2024

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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.

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Employment Law 101: Depositions

Under Washington State law, what are “depositions” within the context of legal proceedings? Here’s my point of view.

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INTRODUCTION

Depositions play a pivotal role in the discovery process, allowing attorneys to gather crucial evidence, assess witness credibility, and develop their cases. Washington State is no exception to this legal practice, as it maintains its own rules and regulations governing depositions. In this article, I will delve into the essence of a Washington State deposition, its overarching objectives, and the fundamental elements that make it an indispensable instrument within the legal framework.

ESSENCE OF DEPOSITIONS

A deposition is a formal legal procedure that entails the sworn testimony of a witness or party to a lawsuit, conducted outside the confines of a courtroom. Typically, this testimony is acquired through a structured question-and-answer format, with a court reporter present to meticulously transcribe every word spoken during the proceedings. Depositions are usually orchestrated by attorneys from both sides of a case, serving as a means to unearth information, evaluate the veracity of witness statements, and document testimony for use in subsequent trial proceedings.

OBJECTIVES OF DEPOSITIONS IN WASHINGTON STATE

1. Discovery

The primary objective of a deposition is to facilitate the discovery of evidence. Attorneys employ depositions to gather pertinent information from witnesses or litigants that may prove instrumental to the case. This encompasses the collection of facts, identification of potential witnesses, and elucidation of the opposing party’s stance.

2. Testimonial Preservation

Depositions function as a safeguard for preserving witness testimony, ensuring its integrity and consistency for future reference in a courtroom setting. The deposition process mandates that witnesses provide sworn statements, thus preventing them from altering their account or providing contradictory testimony during trial.

3. Credibility Assessment

Depositions serve as an invaluable tool for scrutinizing witness credibility during trial proceedings. If a witness contradicts their deposition testimony while testifying in court, opposing counsel can employ the deposition transcript to challenge their veracity.

4. Settlement Facilitation

Depositions can also play a pivotal role in settlement negotiations. The insights derived from deposition testimony provide attorneys with a comprehensive understanding of the strengths and vulnerabilities of their case, which can, in turn, inform and facilitate settlement discussions.

ASPECTS OF A WASHINGTON STATE DEPOSITION

1. Notice

Conducting depositions in Washington State mandates meticulous notice to all relevant parties. This notice comprises critical information such as the deposition date, time, venue, and the identity of the intended deponent.

2. Conducting the Deposition

Typically, depositions are steered by attorneys who pose questions to the deponent. A court reporter is usually present to transcribe the proceedings verbatim, ensuring the faithful recording of testimony.

3. Oath and Affirmation

Prior to responding to questions, the deponent is administered an oath or affirmation to uphold the truth.

4. Objections

During depositions, it is not uncommon for attorneys to raise objections; however, deponents are generally obligated to answer the questions posed. Any objections raised can be revisited and resolved in a courtroom setting.

5. Transcription

A transcript of the deposition is meticulously prepared by the court reporter and made accessible to all involved parties. This transcript stands as the official record of the deposition and is admissible as evidence in court.

6. Utilization in Trial

Deposition transcripts hold utility in a courtroom context for various purposes, including witness impeachment, refreshing a witness’s recollection, or as substantive evidence.

CONCLUSION

Within the legal landscape of Washington State, depositions assume a critical role in the discovery process, enabling attorneys to glean essential information, evaluate witness credibility, and fortify their litigation strategies. A comprehensive understanding of the essence and nuances of Washington State depositions is imperative for legal practitioners and individuals embroiled in legal proceedings. This comprehension fosters transparency and equity within the legal system, upholding the sacrosanct principles of justice and the rule of law.

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Negligent Supervision (WA State)

Under Washington State laws, what is the tort of negligent supervision? Here’s my point of view.

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NEGLIGENT SUPERVISION IN WASHINGTON STATE

“Negligent supervision creates a limited duty to control an employee for the protection of a third person, even when the employee is acting outside the scope of employment.” S.H.C. v. Lu, 113 Wn. App. 511, 517, 54 P.3d 174 (Div. 1 2002) (citing Rodriguez v. Perez, 99 Wn. App. 439, 451, 994 P.2d 874, review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000) (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997))) (internal quotation marks omitted) (hyperlink added).

“Employer liability for negligent hiring, retention, and supervision arises from this duty.” Id. (emphasis and hyperlinks added). “If an employee conducts negligent acts outside the scope of employment, the employer may be liable for negligent supervision.” Id. (citing Rodriguez, 99 Wn. App. at 451, 994 P.2d 874) (hyperlink added)).

However: “An employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others.” Id. (citing Niece, 131 Wn.2d at 48-49, 929 P.2d 420) (hyperlink added).

THE PRIMA FACIE CASE

To establish a prima facie case of negligent supervision, a plaintiff must show:

(1) an employee acted outside the scope of his or her employment;

(2) the employee presented a risk of harm to other employees;

(3) the employer knew, or should have known of the risk in the exercise of reasonable case that the employee posed a risk to others; and

(4) the employer’s failure to supervise was the proximate cause of injuries to other employees.

Briggs v. Nova Services, 135 Wn. App. 955, 966-67, 147 P.3d 616 (2006) (internal citations omitted) (paragraph formatting added).

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

» Negligent Hiring (WA State)

» Negligent Retention (WA State)

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September 7, 2023October 21, 2024

Employment Law 101: The Complaint

Under Washington State law, what is a “complaint” within the context of legal proceedings? Here’s my point of view.

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INTRODUCTION: THE COMPLAINT

In Washington State jurisprudence, a “complaint” refers to a formal written document that commences a civil lawsuit. This crucial document is typically filed by the plaintiff, the party initiating the legal action, against the defendant, the party being sued. The complaint serves as a detailed statement of the plaintiff‘s claims, outlining the legal basis for their grievances and the specific relief or remedy they seek from the court. Essentially, it marks the beginning of the legal process in Washington State.

COMPONENTS OF THE COMPLAINT

A well-constructed complaint in Washington State must encompass specific elements to be legally valid and sufficient to initiate a lawsuit. These essential components include:

1. Caption:

The complaint begins with a caption that identifies both the court and all the parties involved in the lawsuit, listing the plaintiff(s) and defendant(s). This section provides clarity about the parties and their roles in the legal dispute.

2. Jurisdiction and Venue:

It is imperative for the complaint to specify the court’s jurisdiction over the matter and the appropriate venue where the lawsuit should be heard. This ensures that the case is heard in the correct jurisdiction.

3. Statement of Facts:

The heart of the complaint lies in the statement of facts. This section presents a comprehensive narrative that details the events leading to the dispute. It typically answers the fundamental questions of “who,” “what,” “when,” “where,” and “how” regarding the alleged wrongdoing.

4. Legal Claims:

Within the complaint, the plaintiff articulates the legal claims or causes of action they are pursuing. These claims must be firmly grounded in Washington State law (or other relevant/applicable law) and must be presented with sufficient detail to provide the defendant with a clear understanding of the allegations.

5. Request for Relief:

The complaint typically concludes with a segment that outlines the specific remedies or relief sought by the plaintiff. This may include monetary damages, injunctive relief, or other forms of legal remedies available under Washington State law.

CONCLUSION

In Washington State jurisprudence, a “complaint” serves as the bedrock of a civil lawsuit, marking the initiation of legal proceedings. This formal document elucidates the plaintiff’s grievances, legal claims, and the relief sought from the court. Understanding the components and significance of a complaint is essential for individuals navigating the legal landscape in Washington State. It signifies the initial step in a legal journey that may ultimately lead to justice, resolution, and the protection of individual rights in a state that upholds the rule of law.

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Employment Law 101: The Summons

What is a “summons” within the context of legal proceedings? Here’s my point of view.

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INTRODUCTION: THE SUMMONS

In the sphere of legal proceedings, understanding the terminology and processes involved is crucial to ensuring individuals are well-equipped to navigate the complexities of the legal system. One such term that holds significance in legal circles is “summons.” A summons serves as a foundational element in initiating legal action and warrants a comprehensive understanding. This blog post aims to elucidate the definition of a summons, its purpose, and the key components associated with this crucial legal document.

Definition of Summons

Generally, a summons is a formal legal document issued by a plaintiff, plaintiff’s attorney, court, or authorized judicial entity and served only by qualified individuals/methods. See CR 4(c). Accordingly, the summons serves as a notification to an individual, business/corporation, governmental entity, or other organization informing them that they are being sued or that they are required to appear in court as a party in a legal matter. Essentially, a summons acts as an official call to action, compelling the recipient to participate in the legal process either as a defendant or a witness.

Purpose

The primary purpose of a summons is to ensure that due process is followed in legal proceedings. It provides notice to individuals about their involvement in a legal case, affording them the opportunity to respond appropriately. By issuing a summons, the court system guarantees that all parties have a fair chance to present their side of the case and defend their interests.

Components

A typical summons consists of several key components:

1. Court Information:

This includes the name of the court where the case has been filed. It provides recipients with essential details about the jurisdiction in which the legal action is taking place.

2. Case Information:

The summons includes vital details about the lawsuit including, but not limited to the case number, names of the parties involved, and a brief description of the nature of the case.

3. Date and Time:

The summons specifies the date and time when the recipient is required to appear in court. This is a critical element, as failing to appear on the designated date can result in legal consequences.

4. Response Deadline:

If the recipient is being sued, the summons will include a deadline by which they must respond to the allegations. This could involve filing a formal response or pleading, such as an answer or a motion to dismiss.

5. Contact Information:

The summons typically provides contact information for the court clerk or the legal representative of the party initiating the legal action. This allows recipients to seek clarification or guidance if needed.

6. Legal Warning:

Often, a summons includes a legal warning that outlines the potential consequences of ignoring the summons or failing to respond within the specified timeframe. This serves as a reminder of the seriousness of the matter.

Conclusion

A summons stands as a foundational piece that upholds the principles of due process and fairness. Its role in notifying individuals of their involvement in a legal case cannot be understated. By comprehending its definition, purpose, and components, individuals can better navigate the legal landscape and ensure that their rights are protected. Whether appearing as a defendant or a witness, responding to a summons in a timely and appropriate manner is a vital step in the pursuit of justice.

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August 24, 2023October 21, 2024

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Employment Law 101: Definition of Pleading

What is the definition of the term “pleading“? Here’s my point of view.

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INTRODUCTION: PLEADINGS

Within the legal profession, the term “pleading” stands as a fundamental cornerstone that shapes the trajectory of legal proceedings. Rooted in centuries of legal tradition and jurisprudential evolution, pleadings serve as the formal and structured communication through which parties to a legal dispute present their respective claims and defenses. This article delves into the multifaceted definition of “pleading” in relation to the legal profession, elucidating its significance and pivotal role in upholding justice within our society.

Definition of Pleading

Pleadings are a legal document that initiates and outlines the framework of a lawsuit. Typically, they consist of two main categories: the complaint and the answer. The party initiating the lawsuit, known as the plaintiff, files a complaint outlining their grievances and allegations against the defendant. In response, the defendant submits an answer, addressing the allegations and presenting their defenses. In Washington State, pleadings can also include the following, depending on the complexity of the case:

[A] reply to a counterclaim denominated as such; an answer to a cross claim, if the answer contains a cross claim; a third party complaint, if a person who was not an original party is summoned under the provisions of rule 14; and a third party answer, if a third party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third party answer.

CR 7(a).

Beyond the initial stages of a lawsuit, subsequent pleadings may arise, such as replies and amended complaints. These documents provide a structured platform for parties to articulate their legal positions, present evidence, and clarify the issues in dispute.

Elements of Pleadings

A well-drafted pleading is a carefully orchestrated symphony of substance and structure. It must contain specific elements to effectively communicate the parties’ positions and facilitate the legal process. These elements often include:

1. Caption: The case’s title identifies the parties involved and the court where the case is being heard.

2. Introduction: An opening statement provides a concise overview of the nature of the case and the parties’ roles.

3. Jurisdictional and Factual Allegations: Parties must establish the court’s jurisdiction over the matter and present the facts underlying their claims or defenses.

4. Legal Claims or Defenses: Clear and precise articulation of the legal theories upon which parties base their claims or defenses is paramount.

5. Prayer for Relief: The desired outcomes or remedies sought by each party, which can include, but are not limited to monetary compensation, injunctive relief, or specific performance.

The Significance of Pleadings

Pleadings play a pivotal role in the legal process, serving as a vital bridge between parties’ grievances and the adjudicative system. Their importance is threefold:

1. Initiation and Response: Pleadings initiate legal proceedings by formally notifying the opposing party of the case’s existence and outlining the claims being asserted. In response, pleadings enable the opposing party to present their defenses and counterclaims.

2. Fair and Informed Process: Pleadings create a level playing field by requiring parties to present their case in writing, ensuring that each party is aware of the other’s contentions and can prepare their response accordingly.

3. Judicial Efficiency: Well-structured pleadings streamline the legal process, allowing courts to quickly ascertain the issues in dispute and allocate resources efficiently. They serve as a roadmap for subsequent stages of litigation, reducing delays and unnecessary legal wrangling.

Conclusion

In the realm of the legal profession, pleadings are not mere documents but rather the embodiment of parties’ rights, grievances, and defenses. They epitomize the concept of due process and ensure that justice is served in a structured and equitable manner. As an indelible component of the legal landscape, pleadings lay the groundwork for the entire legal process, embodying the principles of fairness, transparency, and accountability that underpin our societal fabric. Thus, it is through this meticulous process of pleading that the foundations of justice are fortified and upheld for all.

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Filing a Workers’ Compensation Claim and Discrimination (WA State)

Under Washington State workers’ compensation laws, may an employer discriminate against an employee for filing a workers’ compensation claim? Here’s my point of view.

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THE WASHINGTON INDUSTRIAL INSURANCE ACT (“ACT”) AND WORKERS’ COMPENSATION CLAIMS: DISCRIMINATION PROHIBITED

“Washington’s Industrial Insurance Act provides that ‘[n]o employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.'” Robel v. Roundup Corporation, 148 Wn.2d 35, 48-49 (Wash 2002) (citing RCW 51.48.025(1)) (alteration in original) (emphasis added).

The relevant law, RCW 51.48.025(1), states as follows:

Retaliation by employer prohibited—Investigation—Remedies.

(1) No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title. However, nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker’s failure to observe health or safety standards adopted by the employer, or the frequency or nature of the worker’s job-related accidents.

Id. (emphasis added).

THE COMPLAINT PROCESS

Under the Act, “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation.” RCW 51.48.025(2) (emphasis added). In this case, the term “‘Director’ means the director of labor and industries.” RCW 51.08.060.

Accordingly, “[u]pon receipt of such complaint, the director shall cause an investigation to be made as the director deems appropriate. Within ninety days of the receipt of a complaint filed under this section, the director shall notify the complainant of his or her determination.” Id.

“If upon such investigation, it is determined that this section has been violated, the director shall bring an action in the superior court of the county in which the violation is alleged to have occurred.” Id.

RIGHT OF PRIVATE ACTION — ADDITIONAL LEGAL THEORIES

However, “[i]f the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.” RCW 51.48.025(3).

IMPORTANT: Pursuant to other laws (e.g., The Washington Law Against Discrimination, Title VII of the Civil Rights Act of 1964, WA State torts, etc.), additional legal theories may form the basis for relief depending on the circumstances of each case. Speak to a knowledgeable employment attorney to learn more.

REMEDIES

“In any action brought under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and to order all appropriate relief including rehiring or reinstatement of the employee with back pay.” RCW 51.48.025(4) (referring to RCW 51.48.025(1)).

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August 3, 2023October 21, 2024

Self-Serving Declarations (WA State)

Under Washington State laws, must a nonmoving party’s “self-serving” declarations be taken as true on summary judgment in a civil lawsuit? Here’s my point of view.

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SUMMARY JUDGMENT: CIVIL CASES

In my Washington State employment law practice (I only represent employee-plaintiffs), employer-defendants typically file motions for summary judgment against my clients. “Summary judgment is a judgment entered by a court for one party and against another party without a full trial.” See Summary Judgment, Cornell Law School: Legal Information Institute, https://www.law.cornell.edu/wex/summary_judgment (last visited August 3, 2023). “In civil cases, either party may make a pre-trial motion for summary judgment.” Id.

In Washington, “[s]ummary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish a question of fact as to the existence of an element on which he or she will have the burden of proof at trial.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 569 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 176 Wn.App. 168, 179, 313 P.3d 408 (2013)).

SELF-SERVING DECLARATIONS (WA STATE)

When defending against motions for summary judgment, my clients often file declarations that employers claim are “self-serving.” But “on summary judgment a nonmoving party’s declaration must be taken as true and can create a genuine issue of material fact even if it is ‘self-serving.'” Id. at 575 (citing Reagan v. Newton, 7 Wn.App.2d 781, 806, 436 P.3d 411, review denied, 193 Wn.2d 1030 (2019)) (emphasis added).

However, “[a] plaintiff cannot contradict unambiguous deposition testimony with a subsequent declaration.” Id. at 587, fn. 3 (citing Robinson v. Avis Rent A Car Sys., Inc., 106 Wn.App. 104, 121, 22 P.3d 818 (2001)).

CONCLUSION

Thus, under Washington State laws, I believe that a nonmoving party’s “self-serving” declaration must be taken as true on summary judgment of a civil lawsuit unless it contradicts unambiguous deposition testimony.

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July 27, 2023October 21, 2024

Origin of the Disparate Impact Claim

Under Title VII of the Civil Rights Act of 1964, what is the origin of the disparate impact claim? Here’s my point of view.

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ORIGIN OF THE DISPARATE IMPACT CLAIM: GRIGGS V. DUKE POWER CO.

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), “the [United States] Supreme Court held that Title VII prohibits employment practices that are discriminatory in effect as well as those based on discriminatory intent.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 498, 325 P.3d 193 (Wash. 2014) (citing Griggs, 401 U.S. at 429-30) (emphasis in original) (hyperlink added).

“The unanimous Griggs Court reasoned that Title VII‘s purposes could not be achieved unless the statute was construed to bar practices … neutral on their face, and even neutral in terms of intent [that] operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Kumar, 180 Wn.2d at 498 (citing Griggs, 401 U.S. at 430) (alteration in original) (internal quotation marks omitted) (hyperlink added).

“The [U.S.] Supreme Court therefore held that Title VII barred even a facially neutral job requirement if that requirement disproportionately burdened a protected class, unless the requirement bore a legitimate relation to ‘job performance,’ that is, unless it constituted a ‘business necessity.'” Id. at 498-99 (citing Griggs, 401 U.S. at 431) (hyperlink added). “The Griggs decision created the cause of action now known as a ‘disparate impact’ claim.'” Kumar, 180 Wn.2d at 499 (citing Smith v. City of Jackson, 544 U.S. 228, 230, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005)) (emphasis added).

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July 20, 2023October 21, 2024

The Public Duty Doctrine

Under Washington State laws, what is the public duty doctrine? Here’s my point of view.

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THE PUBLIC DUTY DOCTRINE

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 198 (Wash. 2018) (internal citations and quotation marks omitted) (hyperlink added).

EXCEPTION TO THE DOCTRINE (SPECIAL RELATIONSHIPS)

“An exception to the public duty doctrine applies if there is a ‘special relationship’ between the parties.” Id. (internal citation omitted). “A special relationship arises where[:]

(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and

(2) there are express assurances given by a public official, which

(3) give[ ] rise to justifiable reliance on the part of the plaintiff.

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

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July 6, 2023October 21, 2024

Perceived Obesity Is a Protected Class

Under Washington Law Against Discrimination, is perceived obesity considered a protected class for purposes of disparate-treatment claims (based on failure to hire)? Here’s my point of view.

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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; 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.

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

DEFINITION OF DISABILITY

WLAD “generally prohibits employers from discriminating against an employee because the employee has a disability.” Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 614 (Wash. 2019) (citing RCW 49.60.180). “An employee has a disability if they have an ‘impairment’ that ‘[i]s medically cognizable or diagnosable,’ ‘[e]xists as a record or history,’ or ‘[i]s perceived to exist whether or not it exists in fact.'” Id. (citing RCW 49.60.040(7)(a)) (alteration in original).

OBESITY ALWAYS QUALIFIES AS AN IMPAIRMENT

In 2018, “[t]he United States Court of Appeals for the Ninth Circuit certified the following question to … [the Washington State Supreme Court]: Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD, RCW] 49.60.040?” Taylor, 193 Wn.2d at 614-15 (citing Order Certifying Question to Wash. Supreme Ct., Taylor v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 853 (9th Cir. 2018)) (alteration in original) (internal quotation marks omitted) (hyperlink added).

Accordingly, the Washington State Supreme Court held as follows: “We answer that obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a ‘physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Id. at 615 (hyperlink and emphasis added). Moreover, for purposes of failure-to-hire disparate treatment cases, the plaintiff doesn’t need to prove that they’re actually impaired (i.e., obese).

DISPARATE TREATMENT (FAILURE TO HIRE): PERCEIVED DISABILITY IS A PROTECTED CLASS

“In order to prevail in a [failure-to-hire] disparate treatment case … [based on obesity,] a plaintiff need show only that the employer perceived the employee as having an ‘impairment.'” See id. at 622 (citing RCW 49.60.040(7)) (internal citations and footnote omitted) (emphasis added). “Unlike in a reasonable accommodation case, the plaintiff in a disparate treatment case need not show that they are actually impaired or that the impairment has any actual or potential substantially limiting effect.” Id. at 637 (referencing RCW 49.60.040(7)(d)).

Thus, “if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates … the WLAD.” Id. (footnote omitted) (emphasis added).

CONCLUSION

Under Washington Law Against Discrimination, perceived obesity is considered a protected class for purposes of failure-to-hire disparate treatment claims.

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June 29, 2023October 21, 2024

Vicarious Liability (WA State)

Under WA State laws, what is the proper inquiry for vicarious liability within the scope of employment law? Here’s my point of view.

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VICARIOUS LIABILITY

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. Vicarious liability is “[l]iability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.” Black’s Law Dictionary 934 (8th ed. 2004).

Under Washington State law, after “an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Robel v. Roundup Corporation*, 148 Wn.2d 35, 53 (Wash. 2002) (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)).

* (NOTE: This is an external link that will take the reader to our Washington Employment Law Digest.)

THE PROPER INQUIRY

The proper vicarious-liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id. An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

DEFEATING A CLAIM OF VICARIOUS LIBAILITY

“An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was[:]

(1) ‘intentional or criminal’ and

(2) ‘outside the scope of employment.’

Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001)) (paragraph formatting added).

However, intentional or criminal conduct is not per se outside the cope of employment. Id. at 53. Moreover, it is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.

We invite you to read more of our tort-related blog articles:

» Elements of Negligent Misrepresentation

» Negligent Hiring (WA State)

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» The Tort of Battery

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» WA State Torts: Public Disclosure of Private Facts

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June 22, 2023October 21, 2024

Noncompetition Covenants (WA State)

Under Washington State laws, when are employee noncompetition covenants void and unenforceable? Here’s my point of view.

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NONCOMPETITION COVENANTS (WA STATE)

Generally, a noncompetition covenant is “[a] promise , usu. in a sale-of-business, partnership, or employment contract, not to engage in the same type of business for a stated time in the same market as the buyer, partner, or employer.” Black’s Law Dictionary 392 (8th ed. 2004) (emphasis added). In Washington State, a “‘[n]oncompetition covenant’ includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind.” RCW 49.62.010(4)*.

The Washington State Legislature has found both that “workforce mobility is important to economic growth and development[ ]” and that “agreements limiting competition or hiring may be contracts of adhesion** that may be unreasonable.” RCW 49.62.005* (hyperlink added). Washington’s noncompetition covenants law (hereinafter, “law”), RCW 49.62*, took effect on January 1, 2020 and establishes when such noncompetition covenants are void and unenforceable. See RCW 49.62.900*.

WHEN VOID AND UNENFORCEABLE

In Washington State, a noncompetition covenant is considered void and unenforceable against an employee unless certain conditions are met. The relevant law follows:

RCW 49.62.020*

(1) A noncompetition covenant is void and unenforceable against an employee:

(a)(i) Unless the employer discloses the terms of the covenant in writing to the prospective employee no later than the time of the acceptance of the offer of employment and, if the agreement becomes enforceable only at a later date due to changes in the employee’s compensation, the employer specifically discloses that the agreement may be enforceable against the employee in the future; or

(ii) If the covenant is entered into after the commencement of employment, unless the employer provides independent consideration for the covenant;

(b) Unless the employee’s earnings from the party seeking enforcement, when annualized, exceed one hundred thousand dollars per year. This dollar amount must be adjusted annually in accordance with RCW 49.62.040*;

(c) If the employee is terminated as the result of a layoff, unless enforcement of the noncompetition covenant includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.

(2) A court or arbitrator must presume that any noncompetition covenant with a duration exceeding eighteen months after termination of employment is unreasonable and unenforceable. A party seeking enforcement may rebut the presumption by proving by clear and convincing evidence that a duration longer than eighteen months is necessary to protect the party’s business or goodwill.

RCW 49.62.020*.

INDEPENDENT CONTRACTORS

The law also protects independent contractors to a certain extent. “A noncompetition covenant is void and unenforceable against an independent contractor unless the independent contractor’s earnings from the party seeking enforcement exceed two hundred fifty thousand dollars per year.” RCW 49.62.030* (emphasis added). “This dollar amount must be adjusted annually in accordance with RCW 49.62.040*.” Id. In addition, “[t]he duration of a noncompetition covenant between a performer and a performance space, or a third party scheduling the performer for a performance space, must not exceed three calendar days.” Id.

UNENFORCEABLE COVENANT PROVISIONS

Lastly, the law determines when noncompetition covenant provisions are unenforceable. “A provision in a noncompetition covenant signed by an employee or independent contractor who is Washington-based is void and unenforceable:

(1) If the covenant requires the employee or independent contractor to adjudicate a noncompetition covenant outside of this state; and

(2) To the extent it deprives the employee or independent contractor of the protections or benefits of this chapter[, RCW 49.62*].”

RCW 49.62.050* (paragraph formatting, emphasis, and hyperlinks added).

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OTHER SECTIONS OF THE LAW

There are additional provisions in the law (e.g., Franchisor Restrictions*, Employees Having an Additional Job*, Remedies*, etc.*) that are beyond the scope of this article. For more information, I encourage the reader to review the entire act* — RCW 49.62*.

DEFINITIONS

For purposes of this article, the following definitions apply:

RCW 49.62.010*

Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) “Earnings” means the compensation reflected on box one of the employee’s United States internal revenue service form W-2 that is paid to an employee over the prior year, or portion thereof for which the employee was employed, annualized and calculated as of the earlier of the date enforcement of the noncompetition covenant is sought or the date of separation from employment. “Earnings” also means payments reported on internal revenue service form 1099-MISC for independent contractors.

(2) “Employee” and “employer” have the same meanings as in RCW 49.17.020*.

(3) “Franchisor” and “franchisee” have the same meanings as in RCW 19.100.010*.

(4) “Noncompetition covenant” includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind. A “noncompetition covenant” does not include:

(a) A nonsolicitation agreement;

(b) a confidentiality agreement;

(d) a covenant entered into by a person purchasing or selling the goodwill of a business or otherwise acquiring or disposing of an ownership interest; or

(e) a covenant entered into by a franchisee when the franchise sale complies with RCW 19.100.020(1)*.

(5) “Nonsolicitation agreement” means an agreement between an employer and employee that prohibits solicitation by an employee, upon termination of employment:

(a) Of any employee of the employer to leave the employer; or

(b) of any customer of the employer to cease or reduce the extent to which it is doing business with the employer.

(6) “Party seeking enforcement” means the named plaintiff or claimant in a proceeding to enforce a noncompetition covenant or the defendant in an action for declaratory relief.

RCW 49.62.010* (paragraph formatting, emphasis, and hyperlinks added).

(*This link refers the visitor to an external website: Washington State Legislature: Revised Code of Washington (RCW).)

(**This link refers the visitor to our external website: Williams Law Group Blog.)

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June 15, 2023October 21, 2024

Reasonable Accommodations: Duty To Communicate

Under Washington State employment laws concerning reasonable accommodations, what is the employee’s “duty to communicate“? Here’s my point of view.

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DUTY TO PROVIDE REASONABLE ACCOMMODATIONS (EMPLOYERS)

The 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).

DUTY TO COMMUNICATE (EMPLOYEES)

When an employer’s accommodation is ineffective, the employee’s corresponding duty to communicate mandates: “If the employee does not communicate to the employer that an accommodation was not effective, he or she cannot maintain a failure to accommodate claim.” Id. at 587 (internal citation omitted) (emphasis and hyperlinks added). The basis for this duty is that “an employer must be able to ascertain whether its efforts at accommodation have been effective, and therefore an employee has a duty to communicate to the employer whether the accommodation was effective.” Id. at 586-87 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 783, 249 P.3d 1044 (2011)) (hyperlinks added).

EXAMPLE: MACKEY v. HOME DEPOT USA, INC.

In Mackey v. Home Depot USA, Inc., “Mackey began working at Home Depot[] … in 2006.” Id. at 564. “During her employment, Mackey suffered from depression, posttraumatic stress disorder (PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions.” Id.

home depot’s DUTY TO ACCOMMODATE (EMPLOYER)

“Home Depot accommodated Mackey’s degenerative disc disease by allowing [her] … to have other employees do any required lifting.” Id. at 586.

mackey’s FAILURE TO ACCOMMODATE CLAIM

“Home Depot [eventually] terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders.” Id. at 563. “Mackey asserted claims for[, inter alia,] failure to reasonably accommodate her physical disability.” Id. “Mackey argue[d] that [Home Depot’s disability] … accommodation was unreasonable because it required her to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Id.

mackey’s DUTY TO COMMUNICATE (EMPLOYEE)

The employer defended by asserting, “Mackey failed to notify Home Depot that the [disability] accommodation it provided to her was insufficient or unreasonable.” Id. at 586. The Court also noted: “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate.” Id. at 587.

THE COURT’S HOLDING

The Washington State Court of Appeals held, “[T]he trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.” Id. at 564.

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June 8, 2023October 21, 2024

Employment Reference Checks and Verifications (WA State)

Under Washington State laws, what are employer limitations when disclosing employee information in response to employment reference checks and verifications? Here’s my point of view.

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EMPLOYMENT REFERENCE CHECKS AND VERIFICATIONS — IMMUNITY FROM CIVIL/CRIMINAL LIABILITY — PRESUMPTION OF GOOD FAITH

Under Washington State law, if an employer discloses information to a prospective employer or employment agency concerning a current or former employee–and that disclosure was specifically requested by the prospective employer or employment agency–then the disclosing employer “is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to:

(a) the employee’s ability to perform his or her job;

(b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or

(c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.

RCW 4.24.730(1) (paragraph formatting and emphasis added).

WRITTEN RECORDS

An employer that discloses employee information pursuant to this section (RCW 4.24.730) to a prospective employer or employment agency “should retain a written record of the identity of the person or entity to which information is disclosed under this section for a minimum of two years from the date of disclosure.” RCW 4.24.730(2) (emphasis added).

“The employee or former employee has a right to inspect any such written record upon request and any such written record shall become part of the employee’s personnel file, subject to the provisions of chapter 49.12 RCW.” RCW 4.24.730(2) (emphasis added).

REBUTTING THE PRESUMPTION OF GOOD FAITH

To rebut the presumption of good faith under this section (RCW 4.24.730), there must be “a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth.” RCW 4.24.730(3) (emphasis added).

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June 5, 2023October 21, 2024

Employment Law 101: Discovery (WA State)

Under Washington State law, what does the term “discovery” mean within the context of pre-trial legal proceedings? Here’s my point of view.

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Introduction: Discovery (WA State)

Discovery stands as an integral component of the legal process in Washington State, as it does across the United States. This phase precedes trial and entails the exchange of information and evidence between parties involved in a lawsuit. This article will explore what discovery means within the context of Washington State jurisprudence, its critical role, and the primary methods employed to unearth important information during this crucial phase.

Objectives of Discovery

Within the framework of Washington State jurisprudence, discovery signifies the formal mechanism by which parties embroiled in a legal dispute acquire and share information, evidence, and documents pertinent to the case. Its objectives are manifold:

1. Transparent Disclosure:

Discovery ensures that all parties possess access to the same information, fostering transparency and impartiality in litigation.

2. Preparation for Trial:

It allows legal representatives to compile evidence, evaluate the merits and drawbacks of their case, and strategize for the impending trial.

3. Facilitating Settlement Negotiations:

Information amassed during the discovery process can facilitate settlement discussions by enabling parties to assess potential trial outcomes.

Significance of Discovery

Discovery carries immense weight in the legal process of Washington State for several compelling reasons:

1. Equity and Fairness:

It ensures that all parties have an equal footing in accessing and presenting evidence, thereby upholding fairness in legal proceedings.

2. Operational Efficiency:

Discovery helps streamline litigation by focusing on the core issues in dispute and preventing last-minute surprises during trial.

3. Catalyzing Settlements:

The information garnered through discovery frequently prompts negotiated settlements, ultimately conserving time and resources for all involved parties.

4. Enhanced Trial Preparedness:

Attorneys can construct more robust cases by understanding the strengths and weaknesses inherent in their own arguments as well as those of their adversaries.

Primary Methods

Similar to most U.S. jurisdictions, Washington State employs various methods for conducting discovery. The following are some principal methods:

1. Interrogatories:

Interrogatories involve the submission of written questions from one party to another. The receiving party must respond in writing, under oath. This method serves to extract information and obtain admissions regarding the case.

2. Requests for Production of Documents:

Parties can request the submission of specific documents, such as contracts, emails, or medical records, relevant to the lawsuit. These documents must be provided for examination and copying.

3. Depositions:

Depositions comprise sworn testimonies given by parties or witnesses in the presence of a court reporter. The recorded testimony can serve as evidence during the trial. Depositions enable more comprehensive questioning and clarification of information.

4. Requests for Admission:

With Requests for Admission (RFAs), one party can seek to compel the opposing party to admit or deny specific factual statements or the authenticity of documents. These admissions can simplify trial matters by narrowing the points in dispute.

5. Subpoenas:

Subpoenas are legal orders that mandate third parties, such as banks, employers, or medical providers, to produce documents or testify at a deposition. They constitute a valuable means of accessing information held by non-parties.

Conclusion

In Washington State jurisprudence, discovery constitutes a pivotal facet of the legal process, empowering parties to acquire information and evidence indispensable for resolving their disputes. By fostering transparency, aiding in trial preparation, and facilitating potential settlements, discovery contributes to the impartial and efficient administration of justice within the state’s court system. A comprehensive comprehension of the diverse methods and the significance of discovery is indispensable for anyone navigating the intricate legal terrain in Washington State.

Read Our Related Articles

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

» Employment Law 101: Requests for Admission

May 25, 2023October 21, 2024

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Lie-Detector Tests and Employment

Under Washington State laws, may a person, firm, corporation or the state of Washington (including its political subdivisions or municipal corporations) require employees or prospective employees to take or be subjected to lie-detector tests as a condition of employment or continued employment? Here’s my point of view.

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WASHINGTON STATE: THE LIE-DETECTOR LAW

Under Washington State law, it’s “unlawful for any person, firm, corporation or the state of Washington, its political subdivisions or municipal corporations to require, directly or indirectly, that any employee or prospective employee take or be subjected to any lie detector or similar tests as a condition of employment or continued employment[.]” RCW 49.44.120 (hereinafter, “Lie-Detector Law” or “Law“) (hyperlinks added). However, there are several limitations:

Limitation #1: The Lie-Detector Law does not “apply to persons making application for employment with any law enforcement agency or with the juvenile court services agency of any county, or to persons returning after a break of more than twenty-four consecutive months in service as a fully commissioned law enforcement officer[.]” Id.

Limitation #2: The Law does “not apply to either the initial application for employment or continued employment of persons who manufacture, distribute, or dispense controlled substances as defined in chapter 69.50 RCW, or to persons in sensitive positions directly involving national security.” RCW 49.44.120.

Limitation #3: Nothing in the Law can “be construed to prohibit the use of psychological tests as defined in RCW 18.83.010.” RCW 49.44.120(2).

Limitation #4: Nothing in the Law “may be construed as limiting any statutory or common law rights of any person illegally denied employment or continued employment under this section for purposes of any civil action or injunctive relief.” RCW 49.44.120(5).

NOTE: The Lie-Detector Law defines the term “person” to include “any individual, firm, corporation, or agency or political subdivision of the state.” Id. Violations of the Law can lead to civil liability as well as criminal culpability.

CIVIL LIABILITY: REMEDIES

For civil actions based on violations of RCW 49.44.120, “the court may:

(1) Award a penalty in the amount of five hundred dollars to a prevailing employee or prospective employee in addition to any award of actual damages;

(2) Award reasonable attorneys’ fees and costs to the prevailing employee or prospective employee; and

(3) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of RCW 49.44.120 reasonable expenses and attorneys’ fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.

RCW 49.44.135.

CRIMINAL CULPABILITY

In addition to civil liability, persons violating the Lie-Detector Law are also guilty of a misdemeanor. RCW 49.44.120(3).

CONCLUSION

Washington State’s Lie-Detector Law protects both employees and prospective employees from invasive lie-detector tests used as a condition of employment or continued employment; however, there are several reasonable limitations.

Ultimately, violations of the Law can lead to both civil liability and/or criminal culpability. However, civil litigants should note that the court may award a prevailing defendant “reasonable expenses and attorneys’ fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.” Proceed with caution.

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May 18, 2023October 21, 2024

WLAD Statute of Limitations

Under Washington State laws, what is the statute of limitations for claims under the Washington Law Against Discrimination (WLAD)? Here’s my point of view.

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD, chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower[*] complaints.” Washington State Human Rights Commission Official Website, https://www.hum.wa.gov/about-us (last visited 5/3/23).

_____

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

STATUTE OF LIMITATIONS

Definition

A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.

THE WLAD Statute of Limitations (3 years)

The statute of limitations for commencing* a WLAD lawsuit is 3 years pursuant to RCW 4.16.080(2). See Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “RCW 4.16.080 provides in relevant part:

Actions limited to three years. Within three years:

* * *

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).

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

FURTHER SUPPORT

“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

WARNING

It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.

NOTE: Generally, the jurisdictional time limitation for filing WLAD and Title VII complaints of discrimination through administrative agencies such as the Washington State Human Rights Commission and the U.S. Equal Employment Opportunity Commission (EEOC), respectively, is much shorter than the statute of limitations for commencing WLAD and/or Title VII lawsuits through court — speak to an attorney to learn more.

Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.

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May 4, 2023October 21, 2024

WLAD Statute of Limitations: Equitable Tolling

Under Washington State law, what must a civil plaintiff demonstrate to obtain equitable tolling of the statute of limitations when pursuing a Washington Law Against Discrimination (hereinafter, “WLAD”) claim? Here’s my point of view.

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WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

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

STATUTE OF LIMITATIONS

A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.

“In Fowler v. Guerin, our [Washington State] Supreme Court explained that ‘statutes of limitation reflect the importance of finality and settled expectations in our civil justice system.'” Campeau v. Yakima HMA LLC, 38152-8-III (Wash. App. May 02, 2023) (citing Fowler v. Guerin, 200 Wn.2d 110, 118, 515 P.3d 502 (2022)). Accordingly, “[a] statutory time bar is a legislative declaration of public policy which the courts can do no less than respect, with rare equitable exceptions.” Id. (citing Fowler, 200 Wn.2d at 118, 515 P.3d 502) (alteration in original) (internal quotation marks omitted) (emphasis added).

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

“In civil cases, Washington has consistently required a plaintiff seeking equitable tolling of the statute of limitations to demonstrate [the following:]

(1) the plaintiff has exercised diligence,

(2) the defendant’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing,

(3) tolling is consistent with

(a) the purpose of the underlying statute and

(b) the purpose of the statute of limitations, and

(4) justice requires tolling the statute of limitations.

Campeau, 38152-8-III (citing Fowler, 200 Wn.2d at 125, 515 P.3d 502 (“describing the four predicates as the Millay standard[, Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1988)]”)) (emphasis added).

However, Washington courts have “cautioned against broadly applying equitable tolling in a manner that would substitute for a positive rule established by the legislature a variable rule of decision based upon individual ideas of justice.” Id. (citing Fowler, 200 Wn.2d at 119, 515 P.3d 502) (internal citation and quotation marks omitted).

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April 27, 2023October 21, 2024

Illegal Contracts in Washington State

Under Washington State law, are illegal contracts enforceable when they are in conflict with a statutory law? Here’s my point of view.

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ILLEGAL CONTRACTS IN WASHINGTON STATE

“A contract that is in conflict with statutory requirements is illegal and unenforceable as a matter of law.” Failor’s Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994) (Medicaid reimbursement schedules promulgated in violation of statutory requirements were void and unenforceable).

Accordingly, where “a contract is illegal or grows immediately out of and is connected with an illegal contract, Washington courts leave the parties to the contract where they find them.” State v. Pelkey, 58 Wn.App. 610, 615, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted). Thus, “as a general rule, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.” Id. (internal quotation marks and citations omitted).

EXAMPLE: STATE v. PELKEY

For example, in State v. Pelkey, a criminal defendant allegedly attempted to bribe a city police officer by giving him goods and money to be kept appraised of vice surveillance; however, Pelkey’s criminal case was ultimately dismissed, and Pelkey sought return of said goods and money. Id. at 611-12. The City argued that the property did not have to be returned, because no seizure had occurred and Pelkey filed his motion in the wrong court. The court refused to honor the parties’ so-called contractual agreement, leaving them as the court found them, after reasoning that a contract that is contrary to the terms and policy of an express legislative enactment [i.e., bribery] is illegal and unenforceable. See id.

CONCLUSION

In Washington State, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.

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April 20, 2023October 21, 2024

WA State Human Rights Commission: Functions, Powers, and Duties

Under Washington State laws, what are certain functions, powers, and duties of the Washington State Human Rights Commission (“WSHRC”)? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

The Washington Law Against Discrimination (“WLAD”), Chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower* complaints.” WSHRC Official Website, last accessed 4/19/23 (emphasis and hyperlinks added).

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

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES

The Washington State Legislature established the WSHRC* in 1949 as “a state agency responsible for administering and enforcing the Washington Law Against Discrimination.” WSHRC Official Website, last accessed 4/19/23. The agency has certain functions, powers, and duties, as follows:

RCW 49.60.120

Certain powers and duties of commission.

The commission shall have the functions, powers, and duties:

(1) To appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.

(2) To obtain upon request and utilize the services of all governmental departments and agencies.

(3) To adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.

(4) To receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in this chapter.

(5) To issue such publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, marital status, age, 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.

(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies.

(7) To cooperate and act jointly or by division of labor with the United States or other states, with other Washington state agencies, commissions, and other government entities, and with political subdivisions of the state of Washington and their respective human rights agencies to carry out the purposes of this chapter. However, the powers which may be exercised by the commission under this subsection permit investigations and complaint dispositions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter. The commission may perform such services for these agencies and be reimbursed therefor.

(8) To foster good relations between minority and majority population groups of the state through seminars, conferences, educational programs, and other intergroup relations activities.

RCW 49.60.120 (emphasis added).

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

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Remedies for Breach of Conciliation Agreements**

» The Intersection of WSHRC and EEOC**

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

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

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April 13, 2023October 21, 2024

The Local Government Tort-Claim Filing Statute

Under Washington State law, what is the purpose of the local government tort-claim filing statute? Here’s my point of view.

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LOCAL GOVERNMENT TORT-CLAIM FILING STATUTE

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. Prospective plaintiffs intending to pursue tort claims against a Washington State local-governmental entity are required to conform to certain statutory requirements. See RCW 4.96. The relevant law states as follows:

RCW 4.96.010
Tortious conduct of local governmental entities—Liability for damages.

(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.

Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages.

The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.

(2) Unless the context clearly requires otherwise, for the purposes of this chapter, “local governmental entity” means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, any joint municipal utility services authority, any entity created by public agencies under RCW 39.34.030, or public hospital.

(3) For the purposes of this chapter, “volunteer” is defined according to RCW 51.12.035.

RCW 4.96.010 (paragraph formatting and emphasis added).

THE 60-DAY REQUIREMENT

Thus, a “local government entity is liable for damages arising from its tortious conduct to the same extent as if it were a private person or corporation.” Renner v. City of Marysville, 230 P.3d 569, 571, 168 Wash.2d 540 (Wash. 2010) (citing RCW 4.96.010(1)). “However, prospective plaintiffs must file a tort claim with the local government at least 60 days prior to filing a lawsuit.” Id. The relevant law is as follows:

RCW 4.96.020
Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

…

(4) No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof.

The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period.

For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.

RCW 4.96.020(4) (paragraph formatting and emphasis added).

(IMPORTANT: There are additional filing requirements (e.g., access to standard forms, content, delivery, etc.) that will not be discussed in this article for the sake of brevity. Failure to conform to these additional requirements could result in severe consequences during litigation. The reader is strongly encouraged to both seek legal counsel and refer to RCW 4.96 for more information.)

THE POLICIES

CLAIM FILING STATUTE

“The claim filing statute is intended to provide local governments with notice of potential tort claims, the identity of the claimant, and general information about the claim.” Renner, 230 P.3d at 571. “The legislature illustrated the general nature of this purpose, stating that ‘[t]he laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.'” Id. (citing RCW 4.96.010(1)) (alteration in original). “Under this directive, exact specificity is not required; the claimant simply must provide enough information to put the government on notice of the claim and its contents.” Id.

TORT CLAIM

“The purpose of this claim is ‘to allow government entities time to investigate, evaluate, and settle claims’ before they are sued.” Id (citing Medina v. Pub. Util. Dist. No. 1, 147 Wash.2d 303, 310, 53 P.3d 993 (2002)). “The claim filing statute provides further that it is to be liberally construed such that substantial compliance is satisfactory.” Id; see also RCW 4.96.020(5).

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April 6, 2023October 21, 2024

The Tort of Outrage

Under Washington State law, what is the tort of outrage (hereinafter, “tort of outrage” or “intentional infliction of emotional distress”)? Here’s my point of view.

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

(1) extreme and outrageous conduct,

(2) intentional or reckless infliction of emotional distress, and

(3) actual result to plaintiff of severe emotional distress.

Kloepfel v. Bokor, 66 P.3d 630, 632, 149 Wash.2d 192 (Wash. 2003) (internal citations omitted). According to the Washington State Supreme Court: “These elements were adopted from the Restatement (Second) of Torts § 46 (1965) by this court in Grimsby v. Samson, 85 Wash.2d 52, 59-60, 530 P.2d 291 (1975).” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192 (footnote omitted).

LEVEL OF OUTRAGE

“Grimsby held any claim for intentional infliction of emotional distress must be predicated on behavior ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (emphasis in original). Further, “[t]hat must be conduct which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!'” Id. (internal citations and quotation marks omitted).

MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSIONS, OR OTHER TRIVIALITIES NOT ENOUGH

“Consequently, the tort of outrage does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. (citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (internal quotation marks omitted).

OBJECTIVE SYMPTOMATOLOGY

“Many states, including … [Washington], have distinguished negligent infliction of emotional distress from intentional infliction of emotional distress by making bodily harm or objective symptomatology a requirement of negligent but not intentional infliction of emotional distress.” Id. at 633-34 (internal citations omitted).

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS REQUIRES objective symptomatology

In Washington, the tort of negligent infliction of emotional distress requires the plaintiff to prove “he has suffered emotional distress by ‘objective symptomatology,’ and the ’emotional distress must be susceptible to medical diagnosis and proved through medical evidence.'” Id. at 633, 149 Wash.2d 192 (citing Hegel v. McMahon, 136 Wash.2d 122, 135, 960 P.2d 424 (1998)). “The symptoms of emotional distress must also constitute a diagnosable emotional disorder.” Id. (internal citation and quotation marks omitted).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESs DOES NOT REQUIRE objective symptomatology

However, Washington State courts “have never applied the objective symptomatology requirement to intentional infliction of emotional distress.” Id. at 633 (citing Berger v. Sonneland, 144 Wash.2d 91, 113, 26 P.3d 257 (2001) (“Washington cases have limited the objective symptom requirement to negligent infliction of emotional distress claims.”); see also Brower v. Ackerley, 88 Wash.App. 87, 99-100, 943 P.2d 1141 (1997) (“No Washington case has incorporated [the objective symptomatology requirement] into the tort of outrage.”)) (alteration in original) (internal quotation marks omitted). “The basic elements remain unchanged since their adoption from the Restatement in Grimsby, and … [Washington courts] have not grafted an objective symptomatology requirement to them.” Id. (citing Robel v. Roundup Corp., 148 Wash.2d 35, 51, 59 P.3d 611 (2002)).

Accordingly, the Washington State Supreme Court has found, as follows:

Quite simply, objective symptomatology is not required to establish intentional infliction of emotional distress. The general rule is firmly established that physical injury or bodily harm—’objective symptomology’—is not a prerequisite to recovery of damages where intentional (and, in most states, reckless) emotional harm has been inflicted.

Id. (citing 4 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 16:17, at 1076 (1987)) (internal quotation marks omitted).

CONCLUSION

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 that is also known as intentional infliction of emotional distress; it “requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress.” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192 (internal citations omitted). However, this tort “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. Lastly, objective symptomatology is not required to establish the tort of outrage.

We invite you to read more of our blog articles concerning this topic (for purposes of this section, “IIED” means “intentional infliction of emotional distress” or “tort of outrage”):

» IIED & Supervisors*

» IIED, Vicarious Liability & Proscribing Bad Behavior*

» The Tort of Outrage and Racially Discriminatory Action

» WA Tort of Outrage: A Brief History*

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

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March 30, 2023October 21, 2024

The After-Acquired Evidence Doctrine

Under Washington State law, what is the “after-acquired evidence doctrine” (hereinafter, “after-acquired evidence doctrine” or “Doctrine”) when applied to employment-discrimination law cases? Here’s my point of view.

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THE AFTER-ACQUIRED EVIDENCE DOCTRINE

In my plaintiff’s-side, employment-discrimination law practice, clients must occasionally address the after-acquired evidence doctrine. “The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee‘s termination had the employer known of the misconduct.” Lodis v. Corbis Holdings, Inc., 192 Wash.App. 30, 60, 366 P.3d 1246 (Wash. app. 2015), review denied, 185 Wash.2d 1038, 377 P.3d 744(Table) (Wash. 2016) (citing Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)) (internal quotation marks omitted).

Under the Doctrine, “[a]n employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee‘s misconduct, but only if it can prove by a preponderance of the evidence that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. (citing McKennon, 513 U.S. at 362-63) (emphasis added); accord Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999) (“adopting after-acquired evidence defense as articulated in McKennon“)).

CONCLUSION

If an employer discovers misconduct by a plaintiff-employee, then the after-acquired evidence doctrine can reduce that plaintiff’s lost-wage damages. Specifically, “An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee’s misconduct at the time.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.) (citing Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015)).

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March 23, 2023October 21, 2024

Motion to Dismiss Under CR 12(b)(6)

Under Washington State court rules, how do judges generally address a motion to dismiss under CR 12(b)(6)? Here’s my point of view.

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WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

Pursuant to the Washington State Superior Court Civil Rules (hereinafter, “CR”), a motion to dismiss under CR 12(b)(6) may be presented as follows:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

…

(6) failure to state a claim upon which relief can be granted[ ]

CR 12(b)(6) (first emphasis in original). Thus, pleaders may assert the defense of “failure to state a claim upon which relief can be granted” by, inter alia, motion (hereinafter, “motion(s) to dismiss under CR 12(b)(6)” or “motion to dismiss”). Employment discrimination defendants (usually employers) typically file motions to dismiss under CR 12(b)(6) early in the case and file motions for summary judgment near the end of the case. There are significant differences between the two types of motions.

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742 (Wash. 1977). “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id. (emphasis added).

HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)

“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)). Thus, “[t]he only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citing Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, 85 Wash.2d 52, 55, 530 P.2d 291 (1975)).

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March 16, 2023October 21, 2024

Reasonable Inference of Discrimination and Similarly Situated Employees

Under the Washington Law Against Discrimination, how does a plaintiff establish similarly situated employees for purposes of raising a reasonable inference of discrimination? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

Disparate treatment is a legal theory that occurs “when an employer treats some people less favorably than others” because of membership in a protected class. See Alonso v. Qwest Communications Company*, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). “To esablish a prima facie* disparate treatment 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).

There are various formulations for the prima facie case of disparate treatment. In Washington State, “[t]he 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 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (remainder of footnote omitted) (hyperlinks added).

*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.

REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)

Plaintiff-employees typically use similarly-situated employees (also known as “comparators”) to show that their employer treats some employees less favorably than others based on one or more protected classes. Accordingly, to raise a reasonable inference of discrimination, a “[s]imilarly situated employee[ ] must have[:]

[1] the same supervisor,

[2] be subject to the same standards, and

[3] have engaged in the same conduct.

Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)) (paragraph formatting added).

(NOTE: additional elements are required to establish a prima facie case of disparate treatment discrimination, however this article only addresses the “reasonable inference of discrimination” element.)

EXAMPLE: MARIN v. KING COUNTY

For example, in Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Plaintiff-employee Marin worked for King County as an operator at a wastewater treatment plant. Therein, Marin alleged King County unlawfully discriminated against him based on a variety of incidents. In one incident, Marin “did not follow the correct procedure to ‘lock out’ and ‘tag out’ a sewage pump.” Id. at 803. Consequently, Marin’s supervisor, Read, issued Marin a Teach/Lead/Coach memo, or TLC. “A TLC is not discipline, though management may base future discipline on a TLC.” Id. “Read saw it as a basic error for someone with Marin’s experience. Marin perceived Read to be yelling at him and became anxious.” Id. “Marin eventually gave notice he would retire in May 2011.” Id. at 804.

trial court

Thereafter, “Marin sued the County in July 2011[,] alleg[ing] six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.” Id. (footnote omitted). Inter alia, “[t]he trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id. at 801.

court of appeals — division one

Marin appealed the dismissal of his lawsuit. See id. at 801. On appeal, Division One, held that Marin failed to raise a reasonable inference of discrimination.

Different Supervisor

“Marin … contended the County treated him differently than a nonprotected employee, … Burton, who also made a lockout error. ” Id at 810. However, the Court found that “[e]ven if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor.” Id. (footnote omitted).

same treatment

The Court then found that “the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.” Id. It reasoned: “A reasonable employee would not interpret Marin’s TLC as setting ‘impossible or terrifying unique performance standards’ or threatening termination.”

HOLDING

Accordingly, the Court held that “the trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 810-11.

*NOTE: The link will take the reader to our Court Slips Blog – an external website.

READ OUR RELATED ARTICLES

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment

» Disparate Treatment via Hostile Work Environment**

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

» 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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February 16, 2023October 21, 2024

Canon of Administrative-Agency Interpretations

Under Washington State canons of statutory construction, what is the canon of administrative-agency interpretations? Here’s my point of view.

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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

According to the canon of administrative-agency interpretations:

Generally, administrative agency interpretations of statutes are given great weight.

Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).

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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.

-gw

January 12, 2023October 21, 2024

Title VII of the Civil Rights Act of 1964

Under federal laws, how does Title VII of the Civil Rights Act of 1964 protect employees against employment discrimination? 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 an individual 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.

READ THE LAW

Read all Title VII provisions to learn more. The link will take the reader to an external website — Cornell Law School (Legal Information Institute).

THE WASHINGTON LAW AGAINST DISCRIMINATION

The Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW, is distinct and separate from Title VII. The WLAD is a much broader state law that also protects against discrimination. Particularly:

[The Washington Law Against Discrimination, ]Chapter 49.60 RCW[,] is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower* complaints.

Washington State Human Rights Commission Website, About Us (last visited 1/10/23) (emphasis added) (hyperlinks and asterisks added). Learn more about the WLAD by visiting the Washington State Human Rights Commission Website.

(*The “whistleblower” link refers the visitor to our external website: Williams Law Group Blog.)

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).

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ADDITIONAL EMPLOYER PROHIBITIONS

Title VII also prohibits employers from engaging in the following activities:

Under Title VII, employers also cannot:

→ Harass an employee because of race, color, religion, sex (including sexual orientation and gender identity), or national origin;

→ Refuse or fail to make reasonable adjustments to workplace policies or practices that allow individual workers to observe their sincerely held religious beliefs;

→ Make employment decisions based on stereotypes or assumptions about a person’s abilities, traits, or performance because of their race, color, religion, sex (including sexual orientation and gender identity), or national origin;

→ Deny job opportunities because a person is married to, or associated with, a person of a particular race, color, religion, sex (including sexual orientation and gender identity), or national origin.

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

THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Additional federal laws prohibit employment discrimination based on age, disability, and genetic information. “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.

We invite you to read more of our related blog articles:

» EEOC: The Notice of Right to Sue

» Fair Employment Practice Agencies

» The Intersection of WSHRC and EEOC*

» Unlawful Employment Agency Practices (Title VII)

» Washington Law Against Discrimination is Potent*

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

need help?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our law office litigates claims under the Washington Law Against Discrimination, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. 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.

January 5, 2023October 21, 2024

The Retainer Fee (WA State)

Under Washington State laws, what is a retainer fee? Here’s my point of view.

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WASHINGTON STATE COURT RULES: RULES OF PROFESSIONAL CONDUCT

The Washington State Rules of Professional Conduct (RPC) guide attorneys in their practice of law by, inter alia, regulating their professional conduct. According to the RPC — Fundamental Principles of Professional Conduct:

…

The Rules of Professional Conduct point the way to the aspiring lawyer and provide standards by which to judge the transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

RPC, Fundamental Principles of Professional Conduct. One of the primary topics under the RPC is “Fees,” and one common type of fee is the retainer fee.

RPC 1.5: THE RETAINER FEE

The retainer fee “is a fee that a client pays to a lawyer to be available to the client during a specified period or on a specified matter, in addition to and apart from any compensation for legal services performed.” RPC 1.5. Importantly, a retainer fee:

• must be agreed to in writing.

• must be signed by the client.

• is the lawyer’s property as soon as it is received and is not to be put into the lawyer’s trust account, unless otherwise agreed.

See id. This fee structure is sometimes referred to as an “availability retainer,” “engagement retainer,” “true retainer,” “general retainer,” or “classic retainer.” See id. (Washington Comment 13).

RETAINER FEE SECURES AVAILABILITY ALONE

As mentioned above, retainer fees in Washington State are also known as “availability retainers.” That’s because “[a] retainer secures availability alone, i.e., it presumes that the lawyer is to be additionally compensated for any actual work performed.” Id. (Washington Comment 13). Thus, “a payment purportedly made to secure a lawyer’s availability, but that will be applied to the client’s account as the lawyer renders services, is not a retainer under … [RPC 1.5](f)(1).” Id. (Washington Comment 13).

GOOD PRACTICES

For those drafting retainers, “[a] written retainer agreement should clearly specify the time period or purpose of the lawyer’s availability, that the client will be separately charged for any services provided, and that the lawyer will treat the payment as the lawyer’s property immediately on receipt and will not deposit the fee into a trust account.” Id. (Washington Comment 13).

CONCLUSION

A retainer fee “is a fee that a client pays to a lawyer to be available to the client during a specified period or on a specified matter, in addition to and apart from any compensation for legal services performed.” Id.

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

» The Contingency Fee (WA State)

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

December 29, 2022October 21, 2024

The Contingency Fee (WA State)

Under Washington State canons of statutory construction, what is the canon of constitutional presumption? Here’s my point of view.

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THE CANON OF CONSTITUTIONAL PRESUMPTION

According to the canon of constitutional presumption, Washington courts “presume statutes are constitutional, and the party challenging constitutionality bears the burden of proving otherwise.” Woods v. Seattle’s Union Gospel Mission, 481 P.3d 1060, 1064 (Wash. 2021) (citing Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 215, 143 P.3d 571 (2006), overruled in part by Chong Yim v. City of Seattle, 194 Wash.2d 682, 451 P.3d 694 (2019)).

There are two types of lawsuits that challenge the constitutionality of a statute: (1) the as-applied challenge; and (2) the facial challenge.

THE AS-APPLIED CHALLENGE

The as-applied challenge to the constitutional validity of a statute is based on “a party’s allegation that application of the statute in the specific context of the party’s actions or intended actions is unconstitutional.” Id. (alteration in original) (internal citation and quotation marks omitted). According to the Washington Supreme Court in Woods, “Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.” Id. (internal citation and quotation marks omitted).

THE FACIAL CHALLENGE

A facial challenge is a claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally. To ascertain whether a law is facially invalid, “courts must be careful not to exceed the facial requirements and speculate about hypothetical cases.” Id. (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008)). Washington courts generally disfavor facial claims. See id. (citing State v. McCuistion, 174 Wash.2d 369, 389, 275 P.3d 1092 (2012). Accordingly, a “facial challenge must be rejected unless there is no set of circumstances in which the statute[, as currently written,] can constitutionally be applied.” Id. (In re Det. of Turay , 139 Wash.2d 379, 417 n.27, 986 P.2d 790 (1999) (emphasis and alteration in original) (internal citation and quotation marks omitted).

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

December 15, 2022October 21, 2024

Negligent Retention (WA State)

Under Washington State laws, what is the tort of negligent retention? Here’s my point of view.

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NEGLIGENT RETENTION IN WASHINGTON STATE

To successfully litigate an employment-based negligence claim, the plaintiff must establish the basic elements of negligence: duty; breach of duty; causation; and damages. The theory of negligent retention is a tort. A tort is a civil wrong, other than breach of contract, entitling the victim to remedies typically in the form of damages. According to the Washington State Supreme Court:

Negligent retention consists of … retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before … retaining him.

Anderson v. Soap Lake Sch. Dist., 423 P.3d 197, 206 (Wash. 2018) (citing Peck v. Siau, 65 Wash. App. 285, 288, 827 P.2d 1108 (1992)) (alterations in original) (internal citation and quotation marks omitted).

NEGLIGENT RETENTION VS. NEGLIGENT HIRING

Negligent hiring is also a Washington State tort. According to the Anderson Court:

The difference between negligent hiring and negligent retention is timing. Negligent hiring occurs at the time of hiring, while negligent retention occurs during the course of employment.

Id. (internal citation omitted) (emphasis added).

CONCLUSION

Negligent retention occurs when an employer either retains an employee with knowledge of the employee’s unfitness, or fails to use reasonable care to discover unfitness before retaining the employee.

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

» Negligent Hiring (WA State)

» Negligent Supervision (WA State)

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December 8, 2022October 21, 2024

Negligent Hiring (WA State)

Under Washington State laws, what is the tort of negligent hiring (a tort is a civil wrong, other than breach of contract, entitling the victim to remedies typically in the form of damages)? Here’s my point of view.

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NEGLIGENT HIRING IN WASHINGTON STATE

To successfully litigate an employment-based negligence claim, the plaintiff must establish the basic elements of negligence: duty; breach of duty; causation; and damages. In 2018, the Washington State Supreme Court established the test (“Test”) for negligent hiring of an employee by adopting the following formulation used by the Courts of Appeals:

[T]o hold an employer liable for negligently hiring … an employee who is incompetent or unfit, a plaintiff must show that the employer had knowledge of the employee’s unfitness or failed to exercise reasonable care to discover unfitness before hiring or retaining the employee.

Anderson v. Soap Lake Sch. Dist., 423 P.3d 197, 206 (Wash. 2018) (citing Scott v. Blanchet High Sch., 50 Wash. App. 37, 43, 747 P.2d 1124 (1987) ; see also Carlsen v. Wackenhut Corp., 73 Wash. App. 247, 252, 868 P.2d 882 (1994) (“To prove negligent hiring in Washington, the plaintiff must demonstrate that … the employer knew or, in the exercise of ordinary care, should have known, of its employee’s unfitness at the time of hiring.”)) (internal quotation marks omitted).

RESTATEMENT (SECOND) OF TORTS

In Anderson v. Soap Lake Sch. Dist., the Washington State Supreme Court determined that the Test “parallels the rule in the Restatement (Second) of Torts § 307 (Am. Law Inst. 1965):

It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others.

Anderson, 423 P.3d at 206.

NEGLIGENT HIRING VS. NEGLIGENT RETENTION

Negligent retention is also a Washington State tort (I will address this legal theory in a separate article). According to the Anderson Court:

The difference between negligent hiring and negligent retention is timing. Negligent hiring occurs at the time of hiring, while negligent retention occurs during the course of employment.

Id. (internal citation omitted) (emphasis added).

CONCLUSION

Under the tort of negligent hiring, a plaintiff may hold an employer liable “for negligently hiring … an employee who is incompetent or unfit if the plaintiff shows that the employer had knowledge of the employee’s unfitness or failed to exercise reasonable care to discover unfitness before hiring or retaining the employee.” Id.

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

» Negligent Retention (WA State)

» Negligent Supervision (WA State)

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December 1, 2022October 21, 2024

EEOC: The Notice of Right to Sue

Under federal laws and regulations, what is the United States Equal Employment Opportunity Commission’s (EEOCs) Notice of Right to Sue? NOTE: This article addresses public and private employment and does not address federal government employees or applicants.

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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

The EEOC is a federal agency “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. EEOC Website, https://www.eeoc.gov/overview (last visited 11/29/22).

eeoc functions

“The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.” Id. Accordingly, the EEOC has authority to perform several functions:

(1) To investigate charges of discrimination against employers who are covered by the law.

(2) To prevent discrimination before it occurs through outreach, education, and technical assistance programs.

(3) To provide leadership and guidance to federal agencies on all aspects of the federal government’s equal employment opportunity program.

Id. As part of its investigative function, the EEOC is responsible for issuing the Notice of Right to Sue.

THE 90-DAY NOTICE OF RIGHT TO SUE

Charge Filing

The claimant must first file a charge with the EEOC if the claimant plans “to file a lawsuit under federal law alleging discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information, or retaliation, … (except for lawsuits under the Equal Pay Act, see below).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). I will explain certain exceptions later in this article.

Notice of Right to Sue

The EEOC Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See id. The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id.

90-Day Limitation

When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. Id. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Federal Government Employees and Applicants

This article does not address federal government employees or applicants. “The procedures for filing a complaint of discrimination against a federal government agency differ from those for filing a charge against a private or public employer.” Id. To learn more, visit the EEOC Website page: Overview Of Federal Sector EEO Complaint Process.

EXCEPTIONS WHEN FILING A LAWSUIT

Age Discrimination Lawsuits (ADEA)

“If you plan to file an age discrimination lawsuit, you must have filed a charge but you don’t need a Notice of Right to Sue to file a lawsuit in court. You can file a lawsuit in court any time after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Equal Pay Lawsuits (EPA)

“If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right to Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the pay discrimination took place (3 years if the discrimination was willful).” Id.

Filing a Lawsuit Before Investigation is Completed

“If you want to file a lawsuit before … [the EEOC has] finished … [their] investigation, you can request a Notice of Right to Sue.” Id.

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HOW TO REQUEST A NOTICE OF RIGHT TO SUE

There are a few ways to request a Notice of Right to Sue depending on your circumstances. “If you have registered in EEOC’s Public Portal, you can submit your request by logging in to your charge account and uploading your request. If you don’t have an online charge account, send your request for a Notice of Right to Sue to the EEOC office responsible for investigating your charge and include your EEOC charge number and the names of the parties.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

In any event, the EEOC has time limitations in fulfilling requests for Notices of Right to Sue.

Before 180 Days Have Passed

Before 180 days have passed from the date the claimant’s charge was filed, the EEOC will give the claimant the notice only if the EEOC will be unable to complete their investigation within 180 days. See id. According to the EEOC, “If you want the EEOC to continue investigating your charge, don’t request a Notice of Right to Sue.” Id.

After 180 Days Have Passed

After 180 days have passed from the date the claimant’s charge was filed, the EEOC is required by law to give the claimant the notice upon their request. See id.

CONCLUSION

The EEOCs Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id. When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” Id.

The reader is strongly encouraged to seek legal counsel when first considering claims of employment discrimination.

Using Circumstantial Evidence to Prove Employment Discrimination

As an employment attorney in Washington, I often converse with employment discrimination victims that believe their cases are weak, because they lack direct evidence. They’re unaware that using circumstantial evidence to prove employment discrimination is a common litigation practice that can sometimes lead to successful outcomes.

Under the Washington Law Against Discrimination (WLAD), may an employment discrimination victim rely on circumstantial, indirect, and inferential evidence to prove employment discrimination? Here’s my point of view.

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNFAIR PRACTICES OF EMPLOYERS

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]

[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]

RCW 49.60.180 (emphasis and hyperlinks added). NOTE: WLAD rights are based upon protected classes and may be litigated based upon direct and/or circumstantial evidence.

USING CIRCUMSTANTIAL, INDIRECT EVIDENCE TO PROVE EMPLOYMENT DISCRIMINATION

“Because direct evidence of discriminatory intent is rare, an employee may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*, 500 P.3d 203, 211 (Wash. App. 2021) (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County*, 189 Wash.2d 516, 526, 404 P.3d 464 (2017)) (internal quotation marks omitted).

“Where the employee lacks direct evidence, Washington has adopted the three step evidentiary burden shifting framework* announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) for discriminatory discharge claims.” Id. (citing Scrivener v. Clark Coll.*, 181 Wash.2d 439, 445-46, 334 P.3d 541 (2014)) (hyperlinks added). Although the framework* was originally applied to solely discriminatory-discharge claims, courts have expanded its scope to include other theories of employment discrimination (e.g., <disparate treatment>, <disparate impact>, <hostile work environment>, <unlawful retaliation>, etc.).

(*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.)

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**THE MCDONNELL DOUGLAS EVIDENTIARY BURDEN-SHIFTING FRAMEWORK**

The McDonnell Douglas Evidentiary Burden-Shifting Framework* has three steps:

STEP 1 – prima facie case

“First, [under the burden-shifting framework,] an employee must make a prima facie case …[.]” Crabtree*, 500 P.3d at 211 (Wash. App. 2021) (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464 (2017)) (hyperlinks added). “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists. Id. at 211-12 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464).

STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON

“Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the … [adverse employment action].” See id. at 212 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (hyperlink added). “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, the employer need only show that the employer’s evidence, if taken as true would permit the conclusion that there was a nondiscriminatory reason.” Id. (citing Mikkelsen*, 189 Wash.2d at 533, 404 P.3d 464).

STEP 3 – PRETEXT

“Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a pretext*.” Crabtree*, 500 P.3d at 212 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (hyperlinks added).

(*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.)

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).

CONCLUSION

Under the Washington Law Against Discrimination, I believe employment-discrimination plaintiffs may rely on circumstantial, indirect, and inferential evidence to prove employment discrimination. This is primarily because direct evidence of discriminatory intent is rare.

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November 17, 2022October 21, 2024

Employment-Discrimination Hotlines & Unlawful Retaliation

Employees in Washington State that use employment-discrimination hotlines to submit complaints to their employers sometimes experience consequent retaliation by their employers. It’s not uncommon. Such employees who thereafter pursue associated claims of unlawful retaliation against their employers soon realize the importance of their hotline complaints — particularly, the wording.

Under Washington State unlawful-retaliation laws, should employees reporting employment discrimination via employment-discrimination hotlines specify their protected status (or statuses), when they might rely on those reports to pursue prospective, associated claims of unlawful-retaliation against their employers? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES

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.

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

UNLAWFUL RETALIATION (WA STATE)

“The WLAD 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) (hyperlink added).

THE PRIMA FACIE CASE

“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 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added) (emphasis added). The first element–statutorily protected activity–is at issue for purposes of this article.

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

ELEMENT #1: STUTORILY PROTECTED ACTIVITY

One way “[a]n employee engages in WLAD-protected activity [is] when … [the employee] opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

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.” Alonso, 178 Wn.App. at 754 (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)) (emphasis and hyperlink added).

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EXAMPLE: ALONSO v. QWEST COMMUNICATIONS COMPANY, LLC (EMPLOYMENT-DISCRIMINATION HOTLINES)

In Alonso v. Qwest Communications Company, LLC, “Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on Alonso’s combat-veteran, disabled-person, and Mexican-American statuses.]” Id. at 734. “[T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.” Id. “Alonso appeal[ed], arguing that he provided sufficient evidence to establish [a] prima facie discrimination claim[ ] for[, inter alia,] … unlawful retaliation.” Id.

While working for Qwest, Alonso “used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor and another employee.” Id. at 754 (emphasis added). However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. (emphasis and hyperlink added).

Accordingly, “[t]he Court [of Appeals] initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.” Id. The court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not phone the hotline to report discrimination against him based on a protected class. Id. at 754 (hyperlink added). Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

CONCLUSION

Under Washington State unlawful-retaliation laws, I believe employees electing to report employment discrimination–via employer hotlines–should seriously consider specifying their relevant protected status(es) if they might rely on those reports to prosecute associated, prospective unlawful-retaliation claims. IMPORTANT: In any event, NO content in this article, regardless of date, should ever be used as a substitute for direct legal advice from your attorney.

Unlawful Retaliation: The Causal Link

Under the Washington Law Against Discrimination, how does one prove the “causal-link” element when pursuing a claim of unlawful retaliation? Here’s my point of view.

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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] an employee must show three things:

(1) the employee took a statutorily protected action,

(2) the employee suffered an adverse employment action, and

(3) a causal link between the employee’s protected activity and the adverse employment action.

Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #3: PROVING THE CAUSAL LINK

“Ordinarily, proof of the employer’s motivation must be shown by circumstantial evidence because the employer is not apt to announce retaliation as his motive.” Kahn v. Salerno, 90 Wn. App. 110, 130-31, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998) (internal citations and quotation marks omitted). Accordingly, there are two typical methods of proving a causal link between the employee’s protected activity and the adverse employment action.

METHOD #1 (Proximity & Performance): “Proximity in time between the adverse action and the protected activity, coupled with evidence of satisfactory work performance and supervisory evaluations suggests an improper motive.” Id. (internal citations omitted).

METHOD #2 (Knowledge & Discharge): “[I]f the employee establishes that he or she participated in an opposition activity, the employer knew of the opposition activity, and he or she was discharged, then a rebuttable presumption is created in favor of the employee that precludes … [the court] from dismissing the employee’s case.” Id. (internal citation omitted).

Fair Employment Practice Agencies

Under the United States Equal Employment Opportunity Commission laws and regulations, what are Fair Employment Practice Agencies? Here’s my point of view.

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THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The United States Equal Employment Opportunity Commission (hereinafter, “EEOC”) is an independent federal agency, headquartered in Washington, D.C., that maintains 53 field offices serving the entire country. It’s charged with “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, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.” See Official EEOC Website, https://www.eeoc.gov/overview (last accessed 11/2/22).

The EEOC “laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits”; those same laws also cover most labor unions and employment agencies. See id.

DEFINITION OF EMPLOYER

Generally, employers with at least 15 employees (20 employees in age discrimination cases) are subject to EEOC laws, however there are a few exceptions. For example, the EEOC is responsible for enforcing, inter alia, Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”); under Title VIIs definition of employer, not all are subject to its reach. The relevant provision states as follows:

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include[:]

(1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or

(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

42 U.S.C. § 2000e(b)(Definitions) (NOTE: the EEOC also enforces other laws beyond Title VII; the preceding was only one example) (emphasis added).

FAIR EMPLOYMENT PRACTICES AGENCIES (FEPAs)

The term Fair Employment Practices Agency or FEPA is a term coined by the EEOC. They are state and local government agencies charged with enforcing their own jurisdictional laws prohibiting discrimination; and their laws are similar to those enforced by the EEOC. However, it’s important to note:

In some cases, these agencies enforce laws that offer greater protection to workers, such as protection from discrimination because you are married or unmarried, have children or because of your sexual orientation. There also may be different deadlines for filing a charge, different standards for determining whether you are protected by these laws, and different types of relief available to victims of discrimination.

See Official EEOC Website, https://www.eeoc.gov/fair-employment-practices-agencies-fepas-and-dual-filing (last accessed 11/2/22).

Job Applicants and Criminal Records (WA State)

Under Washington State law, may an employer use criminal-records information in job hiring? Here’s my point of view.

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DEFINITIONS

For purposes of this article only, the following definitions apply unless the context clearly requires otherwise:

…

(1) “Criminal record” includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.

(2) “Employer” includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.

(3) “Otherwise qualified” means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

RCW 49.94.005.

THE WASHINGTON FAIR CHANCE ACT — RCW 49.94

In 2018, the Washington State Legislature passed the Washington Fair Chance Act (Act), RCW Chapter 49.94. The Act is designed “to protect job applicants with a criminal record so they may fairly compete for job opportunities for which they are otherwise qualified.” See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022). It contains several sections, and the primary section follows:

RCW 49.94.010

Inquiries about criminal records—Timing—Advertisements—Exceptions.

(1) An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.

(2) An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state “no felons,” “no criminal background,” or otherwise convey similar messages are prohibited.

(3) An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

(4) This section does not apply to:

(a) Any employer hiring a person who will or may have unsupervised access to children under the age of eighteen, a vulnerable adult as defined in chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060;

(b) Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;

(c) Employment by a general or limited authority Washington law enforcement agency as defined in RCW 10.93.020 or by a criminal justice agency as defined in RCW 10.97.030(5)(b);

(d) An employer seeking a nonemployee volunteer; or

(e) Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the securities and exchange act of 1934, 15 U.S.C. 78c(a)(26).

RCW 49.94.010 (emphasis added) (hyperlinks in original).

LIMITATIONS

The Act also contains several significant limitations concerning collective bargaining agreements, conflict of laws, accommodations/job modifications, baselines, and private right of actions, as follows:

RCW 49.94.020

Limitations on application of chapter.

(1) This chapter may not be construed to interfere with, impede, or in any way diminish any provision in a collective bargaining agreement or the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages, standards, and conditions of employment.

(2) This chapter may not be interpreted or applied to diminish or conflict with any requirements of state or federal law, including Title VII of the civil rights act of 1964; the federal fair credit reporting act, 15 U.S.C. Sec. 1681; the Washington state fair credit reporting act, chapter 19.182 RCW; and state laws regarding unsupervised access to children or vulnerable persons, RCW 43.43.830 through 43.43.845.

(3) This chapter may not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.

(4) This chapter may not be construed to discourage or prohibit an employer from adopting employment policies that are more protective of employees and job applicants than the requirements of this chapter.

(5) This chapter may not be construed to interfere with local government laws that provide additional protections to applicants or employees with criminal records, nor does it prohibit local governments from enacting greater protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than this chapter conflict with this chapter and may not be enforced.

(6) This chapter may not be construed to create a private right of action to seek damages or remedies of any kind. The exclusive remedy available under this chapter is enforcement described in RCW 49.94.030. This chapter does not create any additional liability for employers beyond that enumerated in this chapter.

RCW 49.94.020.

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ENFORCEMENT & PENALTIES

The Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. The AGs enforcement powers (including penalties) follow:

RCW 49.94.030

Attorney general’s enforcement powers—Penalties.

(1) The state attorney general’s office shall enforce this chapter. Its powers to enforce this chapter include the authority to:

(a) Investigate violations of this chapter on its own initiative;

(b) Investigate violations of this chapter in response to complaints and seek remedial relief for the complainant;

(c) Educate the public about how to comply with this chapter;
(d) Issue written civil investigative demands for pertinent documents, answers to written interrogatories, or oral testimony as required to enforce this chapter;

(e) Adopt rules implementing this chapter including rules specifying applicable penalties; and

(f) Pursue administrative sanctions or a lawsuit in the courts for penalties, costs, and attorneys’ fees.

(2) In exercising its powers, the attorney general’s office shall utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows:

A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.

RCW 49.94.030.

CONFLICTS WITH FEDERAL REQUIREMENTS

Lastly, the Act contains a provision addressing potential conflicts with federal requirements when federal funds are involved. The relevant provision follows:

RCW 49.94.900

Conflict with federal requirements—2018 c 38.

If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

RCW 49.94.900.

THE COMPLAINT PROCESS

As mentioned above, the Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. Accordingly, the AG Civil Rights Division accepts complaints that a covered employer has used criminal-record information to exclude an applicant from a job opportunity before determining whether the applicant is otherwise qualified for the job. Complainants may contact the AG Civil Rights Division at either [email protected] or by leaving a message on their toll-free line at (833) 660-4877. Complainants may also submit a complaint using the AGs online form and a staff member will follow up. See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022) (hyperlink in original).

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September 29, 2022October 21, 2024

Failure to Mitigate Damages (WA State)

Under Washington State law, what is the failure-to-mitigate-damages affirmative defense and how is it typically applied in Washington State employment-discrimination cases? Here’s my point of view.

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MITIGATING DAMAGES

In Washington State, plaintiffs have “a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (7th ed.).

AFFIRMATIVE DEFENSES

An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all allegations in the complaint are true. Blacks Law Dictionary, p. 451, “defense (affirmative defense)” (Rev 8th Ed. 2004); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); CR 8(c).

Defendant-employers usually assert the affirmative defense of “failure to mitigate damages” against plaintiff-employees during litigation of employment-discrimination claims. This particular defense is most often asserted when the plaintiff-employee challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire. 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (7th ed.).

FAILURE TO MITIGATE DAMAGES

In an employment-discrimination suit, the burden of proving a failure to mitigate damages is on the employer, and the employer must show the following to satisfy its burden:

1. There were openings in comparable positions available for plaintiff elsewhere after defendant terminated or refused to hire plaintiff;

2. The plaintiff failed to use reasonable care and diligence in seeking those openings;

3. The amount by which damages would have been reduced if the plaintiff had used reasonable care and diligence in seeking those openings.

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (6th ed.).

Juries are typically instructed that they should take into account the characteristics of the plaintiff and the job market in evaluating the reasonableness of the plaintiff’s efforts to mitigate damages. Id. Importantly, the plaintiff’s failure to make an ongoing, concerted effort to find comparable employment does not preclude a back pay award. Henningsen v. Worldcom, Inc., 9 P.3d 948, 102 Wn.App. 828 (Wash.App. Div. 1 2000).

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

For example, in Henningsen v. Worldcom, Inc., a plaintiff-employee (Henningsen) brought a sex discrimination lawsuit against her defendant-employer (Worldcom), and the trial court (bench trial) entered judgment in Henningsen’s favor; the award included full back pay. Id.

Worldcom then appealed alleging, inter alia, the trial court erred, because Henningsen failed to mitigate her damages. Id. Worldcom claimed that “there was evidence that she traveled extensively, had a baby, married the baby’s father, and then proceeded to assist him in the management of his own business after she left Worldcom.” Id. (internal quotations omitted).

The Court found that there was “evidence that Henningsen failed to make an ongoing, concerted effort to find comparable employment” and that the trial court even “expressed some concerns about [Henningsen’s] underemployment[.]” Id. (first alteration in original) (internal quotations omitted). But the Court also found that there was “evidence that she worked on a limited basis for her husband’s business and tried to start a home business.” Id.

Ultimately, the Court concluded that “Worldcom presented no evidence that employment comparable to her position at Worldcom was in fact available” and, therefore, ruled that “substantial evidence support[ed] the trial court’s finding that Worldcom did not prove that Henningsen failed to mitigate her back pay damages.” Id. (internal quotations omitted).

Thus, in the case of Henningsen v. Worldcom, the issue of mitigation of damages was determined in favor of the employee as a result of the employer’s failure to satisfy the first element of the test—evidence that there were openings in comparable positions available for plaintiff elsewhere after defendant terminated (or refused to hire) plaintiff.

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September 8, 2022October 21, 2024

WA State Human Rights Commission Complaints

Under the Washington Law Against Discrimination (WLAD), who may file WA State Human Rights Commission (WSHRC) complaints? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

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.

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): COMPLAINTS

The Washington State Legislature established the WSHRC** in 1949 as “a state agency responsible for administering and enforcing the Washington Law Against Discrimination.” WSHRC Official Website, last accessed 9/8/22. One WSHRC power, inter alia, is the ability “to receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in … [the WLAD].” RCW 49.60.120(4) (emphasis added).

Investigations

“If the facts as stated in the complaint do not constitute an unfair practice under … [WLAD], a finding of no reasonable cause may be made without further investigation.” RCW 49.60.240(1)(a). However, “[i]f the facts as stated could constitute an unfair practice under … [WLAD], a full investigation and ascertainment of the facts shall be conducted.” Id.

Eliminating Unfair Practices

“If the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission‘s staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion.” RCW 49.60.240(3) (hyperlink added).

WHO MAY FILE A COMPLAINT WITH THE WSHRC

According to the WLAD, the following may file a complaint with the WSHRC:

(1) Who may file a complaint:

(a) Any person claiming to be aggrieved by an alleged unfair practice may, personally or by his or her attorney, make, sign, and file with the commission a complaint in writing under oath or by declaration. The complaint shall state the name of the person alleged to have committed the unfair practice and the particulars thereof, and contain such other information as may be required by the commission.

(b) Whenever it has reason to believe that any person has been engaged or is engaging in an unfair practice, the commission may issue a complaint.

(c) Any employer or principal whose employees, or agents, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the commission a written complaint under oath or by declaration asking for assistance by conciliation or other remedial action.

RCW 49.60.230 (emphasis and hyperlinks added).

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September 1, 2022October 21, 2024

Dismissal Based on Claim Splitting

Under Washington State law, what are the requirements for dismissal based on claim splitting? Here’s my point of view.

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CLAIM SPLITTING

The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.” Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment).

RES JUDICATA

The theory of dismissal based upon claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); see also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action) (hyperlink added). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred.

DISMISSAL BASED ON RES JUDICATA

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects:

(1) persons and parties;

(2) cause of action;

(3) subject matter; and

(4) quality of the persons for or against whom the claim is made.

Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted) (paragraph formatting added). This res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (Wash. 2004).

However, the Washington State Supreme Court has been abundantly clear: “[R]es judicata does not bar claims arising out of different causes of action, or intend to deny the litigant his or her day in court.” Id at 865, 93 P.3d 108 (hyperlink added). Ultimately, res judicata will not apply until there has been a final judicial judgment. See Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).

CONCLUSION

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted).

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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.

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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).

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August 11, 2022October 21, 2024

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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.

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August 4, 2022October 21, 2024

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Effective Date for Constructive Discharge (WA State)

Under Washington State laws, when is the effective date for a constructive discharge? Here’s my point of view.

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CONSTRUCTIVE DISCHARGE (OBJECTIVE STANDARD)

“To establish constructive discharge, an employee must show that an employer engaged in a deliberate act, or a pattern of conduct, that made working conditions so intolerable that a reasonable person would have felt compelled to resign.” Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485 (Div. 2 2013) (citing Sneed v. Barna, 80 Wn.App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wn.2d 1023, 919 P.2d 600 (1996)).

“This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant.” Id. (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wn.App. 542, 551, 85 P.3d 959 (2004)) (internal quotation marks omitted).

EFFECTIVE DATE

“A constructive discharge becomes effective on either[:]

[1] the date the employee gives notice to the employer or

[2] the last day of actual employment.

Id. at 486-87 (referencing Douchette v. Bethel Sch. Dist. No. 403, 58 Wn.App. 824, 795 P.2d 162 (1990), aff’d, 117 Wn.2d 805, 816 n. 9, 818 P.2d 1362 (1991)) (paragraph formatting added).

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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

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

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:

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.

Overcoming Stare Decisis (WA State)

Under Washington State laws, how does one overcome the doctrine of stare decisis? Here’s my point of view.

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THE DOCTRINE OF STARE DECISIS

The doctrine of stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” State v. Johnson, 188 Wn.2d 742, 756, 399 P.3d 507 (2017) (internal citations and quotation marks omitted). It is a “doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016) (citing In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)) (internal quotation marks omitted).

The court will typically consider a party’s request for it to reject its prior decision when it’s based upon either one or both of the following two approaches: (1) clear showing; and (2) intervening authority. See State v. Otton, 185 Wn.2d at 678 (internal citations and quotation marks omitted).

1. The Clear-Showing Approach

The clear-showing approach is far more common than the intervening-authority approach, and it requires the requesting party to clearly show the following:

a. That the established rule is incorrect; and

b. That the established rule is harmful.

See id. (internal citations and quotation marks omitted) (emphasis added).

2. The Intervening-Authority Approach

The intervening-authority approach is relatively rare. The requesting party essentially asks the court to “eschew prior precedent in deference to intervening authority where the legal underpinnings of … [the court’s] precedent have changed or disappeared altogether.” See id. (citing W.G. Clark Constr. Co. v. P. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (internal citations and quotation marks omitted).

FRAMING THE ISSUE

When a party asks the Washington State Supreme Court to reject its prior decision, “it is an invitation … [it] … [does] not take lightly.” Id. (citing State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011)) (internal quotation marks omitted). According to the court, the issue is framed as follows:

The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent–” ‘promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.'”

Otton, 185 Wn.2d at 678 (citing Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997)) (internal citation omitted) (alteration to original) (emphasis added).

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July 21, 2022October 21, 2024

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).

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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:

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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 23, 2022October 21, 2024

Unpaid Contract Wages (WA State)

Under Washington State labor regulations, what are employee remedies for unpaid contract wages? Here’s my point of view.

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UNPAID CONTRACT WAGES — BLACK LETTER LAW

The applicable law is found under both RCW 49.52.050 and .070 — Rebates of Wages and Civil Liability for Double Damages, respectively. The relevant portions of RCW 49.52.050 state as follows:

[RCW 49.52.050 – Rebates of wages–False records–Penalty.]

Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who

(1) Shall collect or receive from any employee a rebate of any part of wages theretofore paid by such employer to such employee; or

(2) Willfully and with intent to deprive the employee of any part of his or her wages, shall pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract[ ] …

…

Shall be guilty of a misdemeanor.

Id. (emphasis and paragraph formatting added). The relevant portions of RCW 49.52.070 state as follows:

[RCW 49.52.070 – Civil liability for double damages.]

Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of RCW 49.52.050(1) and (2) shall be liable in a civil action by the aggrieved employee or his or her assignee to judgment for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney’s fees: PROVIDED, HOWEVER, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations.

RCW 49.52.070 (emphasis and hyperlink added).

UNPAID CONTRACT WAGES — CASE LAW

The court in Clipse v. Commercial Driver Services, Inc., 189 Wn.App. 776, 358 P.3d 464 (Wash.App. Div. 2 2015), found that RCW 49.52.050(2) prohibits an employer from paying an employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract. Clipse, 189 Wn.App. at 776 (internal citation and quotation marks omitted) (emphasis added).

The court further determined that RCW 49.52.070 creates civil liability, including double damages, costs, and attorney fees, for violations of RCW 49.52.050. Id.

CONCLUSION

Under Washington State labor regulations, employee remedies for unpaid contract wages can include double damages, costs, and attorney fees.

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June 16, 2022October 21, 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

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

(1) the harassment was unwelcome;

(2) the harassment was because of sex;

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

(4) the harassment is imputed to the employer.

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

ELEMENT #1 — THE HARASSMENT WAS UNWELCOME

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

ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX

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

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

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

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

ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER

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

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

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

(b) Where Supervisors or Co-Workers Harass

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

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

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

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

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

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

Id. (paragraph formatting and emphasis added).

HOW THE EMPLOYER MAY AVOID LIABILITY

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

WLAD REMEDIES

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

READ OUR RELATED ARTICLES

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

June 9, 2022October 21, 2024

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

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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

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

READ OUR RELATED ARTICLES

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment

» Disparate Treatment vs. Disparate Impact Discrimination**

» Disparate Treatment via Hostile Work Environment**

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

» 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 2, 2022October 21, 2024

Retaliatory Discharge (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish a prima facie case of retaliatory discharge? Here’s my point of view.

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RETALIATORY DISCHARGE (WA STATE): THE PRIMA FACIE CASE

“In order to establish a prima facie case of retaliatory discharge, … [a plaintiff] must show[:]

(1) he engaged in a statutorily protected activity;

(2) he was discharged or had some adverse employment action taken against him; and

(3) retaliation was a substantial motive behind the adverse employment action.

Davis v. West One Automotive Group, 140 Wn.App. 449, 460 (Div. 3 2007), review denied, 163 Wn.2d 1039 (Wash. 2008) (internal citation omitted) (emphasis, hyperlinks, and paragraph formatting added).

EXAMPLE: DAVIS v. WEST ONE AUTOMOTIVE GROUP

In Davis v. West One Automotive Group, the Washington State Court of Appeals (division 3) determined that plaintiff Davis established a prima facie case of retaliatory discharge based, in part, on the following:

[1] … Davis, an African American, was hired as a salesman for West One in February 2005 and terminated in July 2005.

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

[3] 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, … [his supervisor] responded, “Because they shot and killed his black ass.” Mr. Davis told … [his supervisor] the comment was inappropriate and not to make such a comment again.

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

[5] A third incident involved … [Mr. Davis’ 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.

[6] [A] [f]ellow sales employee … also made comments that Mr. Davis found racially offensive. On an occasion when Mr. Davis had customers in the finance office and his telephone rang, … [the co-worker] stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked … [the co-worker] to refer to him by name.

…

[7] Mr. Davis complained to West One Human Resources about … [his co-worker’s] “Buckwheat” comment. No disciplinary action was taken.

[8] At a subsequent staff meeting, [Mr. Davis’ supervisor] discussed generally with the entire staff that, “no use of any type of insensitive name, nickname or not, would be tolerated.”

[9] Because no action had been taken against … [Mr. Davis’ co-worker] and because he regarded … [his supervisor] as “the worst offender of racial discrimination,” Mr. Davis did not complain again.

Id. at 453-54 (internal citations omitted).

In the Court of Appeals, “Mr. Davis claim[ed] he was fired for reporting hostile work environment.” Id. at 460 (hyperlink added). The Court considered, inter alia, the foregoing facts and found, in part, as follows:

This is a protected activity covered by statute and his termination qualifies as an adverse employment action. It is unclear if retaliation was a substantial motive behind the termination. The evidence presented at summary judgment would support a finding either way on the causation issue. This is a jury question.

Id. (internal citations omitted). Thus, the Court determined that plaintiff Davis established a prima facie case of retaliatory discharge and–after applying the McDonnel Douglas Burden-Shifting Framework–concluded that “Summary judgment dismissal of Mr. Davis’s … claim was not appropriate.” Id. at 461.

READ OUR RELATED ARTICLES

The Prima Facie Case: Discriminatory Discharge

Top-3 Causation Standards: Unlawful Retaliation

Top-3 Reasons Unlawful Retaliation Claims Fail

Unlawful Retaliation

Unlawful Retaliation: Statutorily Protected Activity

Unlawful Retaliation: The Actual-Knowledge Standard

Wrongful Termination

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

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May 26, 2022October 21, 2024

Hostile Work Environment: Terms or Conditions of Employment

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

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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.

READ OUR RELATED ARTICLES

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

May 6, 2022October 21, 2024

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The Right to Inspect Your Personnel File (WA State)

Under Washington State laws, does an employee have a right to inspect their own personnel file? Here’s my point of view.

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RELEVANT LAW

According to Washington State law: “Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).” RCW 49.12.240.

DEFINITIONS

For purposes of this article–and pursuant to the Washington State Industrial Welfare laws–the following definitions for “employer” and “employee” apply:

[DEFINITION OF EMPLOYER]

…

(b) On and after May 20, 2003, ‘employer‘ means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation.

However, this chapter and the rules adopted thereunder apply to these public employers only to the extent that this chapter and the rules adopted thereunder do not conflict with:

(i) Any state statute or rule; and

(ii) respect to political subdivisions of the state and any municipal or quasi-municipal corporation, any local resolution, ordinance, or rule adopted under the authority of the local legislative authority before April 1, 2003.

RCW 49.12.005(3)(b), (4) (paragraph formatting and hyperlinks added). The definition of “employee” follows:

[DEFINITION OF EMPLOYEE]

…

(4) “Employee” means an employee who is employed in the business of the employee’s employer whether by way of manual labor or otherwise. “Employee” does not include an individual who is at least sixteen years old but under twenty-one years old, in his or her capacity as a player for a junior ice hockey team that is a member of a regional, national, or international league and that contracts with an arena owned, operated, or managed by a public facilities district created under chapter 36.100 RCW.

RCW 49.12.005(4) (paragraph formatting and first hyperlink added).

CONCLUSION

Under Washington State laws, an employer must allow an employee to inspect their own personnel file upon request. Such inspections may occur at least annually.

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April 27, 2022October 21, 2024

Presumption of Acquiescence

Under Washington State canons of statutory construction, what is the canon regarding presumption of acquiescence? Here’s my point of view.

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PRESUMPTION OF ACQUIESCENCE

Under the Presumption-of-Acquiescence canon, “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (concluding that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993). State v. Ritchie, 126 Wash.2d 388, 393, 894 P.2d 1308 (1995). See also State v. Young, 125 Wash.2d 688, 696, 888 P.2d 142 (1995); In re King County Foreclosure of Liens, 117 Wash.2d 77, 86, 811 P.2d 945 (1991) (“the Legislature is presumed to know existing case law in areas in which it is legislating”))). Id.

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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.

-gw

March 24, 2022October 21, 2024

Employee-Handbook Liability

Under Washington State laws, are employee-handbook promises enforceable, when they address specific treatment in specific situations on which an employee justifiably relies? Here’s my point of view.

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THE AT-WILL EMPLOYMENT DOCTRINE

“Generally, an employment contract indefinite in duration is terminable at will.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984)). According to the “at-will” doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual.

EXCEPTION TO THE AT-WILL EMPLOYMENT DOCTRINE: EMPLOYEE HANDBOOKS: PROMISES OF SPECIFIC TREATMENT IN SPECIFIC SITUATIONS

“[U]nder certain circumstances, employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees.” Mikkelsen, 189 Wn.2d at 539-40 (internal citations and quotation marks omitted). For example, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Id. at 540 (internal citation omitted).

ELEMENTS OF THE THEORY

“Under this theory, [a plaintiff] … must show [the following:]

[a)] … that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, …

[b)] that the employee justifiably relied on the promise, and …

[c)] that the promise was breached.

Id. (internal citation and quotation marks omitted) (paragraph formatting added).

CONSIDERATIONS

1. The Crucial Question

“[T]he crucial question is whether the employee has a reasonable expectation the employer will follow the discipline procedure, based upon the language used in stating the procedure and the pattern of practice in the workplace.” Id. (internal citation omitted) (alteration in original).

2. Questions of Fact

“[W]hether an employment policy manual issued by an employer contains a promise of specific treatment in specific situations, whether the employee justifiably relied on the promise, and whether the promise was breached are questions of fact.” Id. (alteration in original) (internal quotation marks and citation omitted). “Therefore, summary judgment is proper only if reasonable minds could not differ in resolving these questions.” Id. (internal citation omitted).

3. Ambiguous Discipline Policies Create Issue of Fact

“The Court of Appeals has held that ambiguous discipline policies create an issue of fact as to whether the employer made a binding promise to follow certain discipline procedures.” Id. at 543 (internal citations omitted).

4. Summary Judgment May Not Be Appropriate When Discretionary Language Negated by Other Representations

“[T]he presence of discretionary language may not be sufficient for summary judgment when other representations negate that language.” Id. at 544 (referencing, e.g., Swanson v. Liquid Air Corp., 118 Wn.2d 512, 532, 826 P.2d 664 (1992) (“We reject the premise that this disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make.”)) (internal quotation marks omitted).

CONCLUSION

Under the Washington State law, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (internal citations omitted).

RELATED: Read more about this topic by viewing our article entitled: Unenforceable Employment-Contract Provisions and Discrimination Claims (the link will redirect the reader to our Williams Law Group Blog — an external website).

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March 17, 2022October 21, 2024

Unlawful Retaliation: Adverse Employment Action

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

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UNLAWFUL RETALIATION: THE PRIMA FACIE CASE

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] an employee must show three things:

(1) the employee took a statutorily protected action,

(2) the employee suffered an adverse employment action, and

(3) a causal link between the employee’s protected activity and the adverse employment action.

Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #2: ADVERSE EMPLOYMENT ACTION

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

-Federal Law

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

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

-Ninth Circuit

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

-U.S. Supreme Court

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

CONCLUSION

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

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

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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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March 16, 2022October 21, 2024

Unlawful Employment Practices: HIV or hepatitis C infections

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis and first paragraph hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

UNFAIR EMPLOYMENT PRACTICES: EMPLOYEES WITH HIV OR HEPATITIS C INFECTIONS

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

Unfair practices with respect to HIV or hepatitis C infection.

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

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

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

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

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

RCW 49.60.172 (emphasis and hyperlinks added).

WLAD REMEDIES

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the WLAD] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

Employer Liability for Nonemployee Harassment

Under the Washington Law Against Discrimination (WLAD), can an employer be held liable for nonemployee harassment? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

EMPLOYMENT

In Washington State, “[t]he right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to … [t]he right to obtain and hold employment without discrimination[.]” RCW 49.60.030(1)(a).

HOSTILE WORK ENVIRONMENT (HARASSMENT)

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant hostile-work-environment (harassment) law states as follows:

It is an unfair practice for any employer:

…

RCW 49.60.180(3). “Under RCW 49.60.030(2), a person discriminated against in violation of the WLAD may bring a civil action.” Larose v. King Cnty., 8 Wash.App.2d 90, 104, 437 P.3d 701 (Wash.App. 2019) (hyperlink added).

THE PRIMA FACIE CASE

“To establish a prima facie claim of a hostile work environment the plaintiff must show that:

(1) the harassment was unwelcome,

(2) the harassment was because of … [membership in a protected class],

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

(4) the harassment is imputable to the employer.

See id. (citing Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004)) (hyperlinks and paragraph formatting added).

THE FOURTH ELEMENT (IMPUTABLE TO THE EMPLOYER)

When it comes to nonemployee harassment, the issue is whether the harassment can be imputed to the employer. “[H]arassment will be imputed to the employer if an owner, manager, partner or corporate officer personally participates.” Larose, 8 Wash.App.2d at 105 (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985)) (internal quotation marks omitted). “An employer will be responsible for harassment by the plaintiff’s supervisors or coworkers if the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” Id. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

“A plaintiff can establish knowledge and failure to take adequate corrective action by showing (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 workplace 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. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

EMPLOYER LIABILITY FOR NONEMPLOYEE HARASSMENT

In 2019, the Court of Appeals of Washington, Division 2, adopted the federal rule and concluded “that a nonemployee’s harassment of an employee in the workplace will be imputed to an employer if the employer[:]

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

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

Id. at 111, (internal citations omitted).

CONCLUSION

Under the Washington Law Against Discrimination, RCW 49.60, “an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace[ ][,]” under certain circumstances.

Rendering a Verdict: WA State Versus Federal Court

Under both Washington State and federal statutes and court rules, what is the difference in number of jurors required to render a jury verdict in a civil trial? 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 STATE

In Washington, only five jurors in a jury of six, or ten jurors in a jury of twelve, are required to render a verdict in a civil trial. RCW 4.44.380. The relevant text is as follows:

In all trials by juries of six in the superior court, except criminal trials, when five of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the presiding juror, and the verdict shall stand as the verdict of the whole jury, and have all the force and effect of a verdict agreed to by six jurors. In cases where the jury is twelve in number, a verdict reached by ten shall have the same force and effect as described above, and the same procedures shall be followed.

Id. However, pursuant to the Superior Court Civil Rules, “The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” CR 48.

U.S. DISTRICT COURT

Alternatively, in the United States District Court, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members; and a jury must begin with at least six and no more than twelve members. FRCP 48. Each juror must partake in the verdict unless they are excused pursuant to Rule 47(c). Id.

CONCLUSION

A significant difference between federal and Washington State court systems appears to be that, unless the parties stipulate otherwise, Washington Superior Courts generally require a specific majority of jurors to render a verdict whereas the United States District Court requires unanimity.

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January 13, 2022October 21, 2024

Individual Capacity State Officials & Section 1983 Qualified Immunity

Under 42 U.S.C. § 1983 (hereinafter, “Section 1983“), may a state official sued in their individual capacity be entitled to qualified immunity? 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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INDIVIDUAL CAPACITY STATE OFFICIALS

A state official sued in his or her individual capacity may be entitled to qualified immunity, unless the official violated a constitutional right of the plaintiff and that right was “clearly established.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009).

QUALIFIED IMMUNITY

“[Q]ualified immunity is an entitlement not to stand trial, that is an immunity from suit rather than a mere defense to liability.” Rudebusch v. Hughes, 313 F.3d 506, 514 (9th Cir. 2002) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original)) (internal quotation marks omitted).

As a result, “qualified immunity safeguards all but the plainly incompetent or those who knowingly violate the law.” Id. (citing Brewster v. Bd. of Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)) (internal quotation marks omitted).

This paradigm “allows ample room for reasonable error on the part of the [official].” Id. (internal citations and quotation marks omitted). And “[i]t encompasses both mistakes of fact and mistakes of law.” Id. (internal citations and quotation marks omitted).

SECTION 1983 QUALIFIED IMMUNITY: THE TWO-STEP PROCESS

Analysis of a Section 1983 qualified-immunity issue involving an individual capacity state official typically involves a two-step process.

STEP 1: The first step requires the following question be answered: “Taken in the light most favorable to the the party asserting injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Rudebusch, 313 F.3d at 514 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

STEP 2: “Only after determining whether the constitutional right was violated does the court proceed to the second step of the two-part inquiry as follows: whether the law was so clearly established that ‘a reasonable official would understand that what he is doing violates that right?'” Id. (internal citations omitted).

Affirmative answers at both steps of the inquiry will typically prevent the state official from claiming qualified immunity. However, “while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory, and courts are permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Nelson v. Corr. Med. Servs., 583 F.3d at 528 (citing, Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009)).

THE POLICY

Ultimately, “the concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular [official] conduct.” Id. (internal citations omitted). And, thus, the qualified immunity analysis “occurs in the specific context of ‘the situation … confronted’ by the official.” Id. (internal citations omitted).

CONCLUSION

Under Section 1983, I believe that a state official sued in their individual capacity may be entitled to qualified immunity.

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January 13, 2022October 21, 2024

Top 3 Employment Discrimination Laws

As an employment attorney in Washington State, I often litigate claims on behalf of employee-plaintiffs based on several common employment discrimination laws. Here are the top 3 employment discrimination laws that I litigate in Washington State . . .

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

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

The Civil Rights Act of 1866 (Section 1981) is a federal law that prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). And the employment-at-will relationship is a contract for Section 1981 purposes.

Section 1981 is also known as “Equal rights under the law” and it states as follows:

(a) STATEMENT OF EQUAL RIGHTS

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “MAKE AND ENFORCE CONTRACTS” DEFINED

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

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

42 U.S.C. § 1981.

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

Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) “makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex[;] … makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit[;] … and requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.” U.S. EEOC Website (emphasis added).

Two other federal anti-discrimination laws, inter alia, broaden the protected classes, as follows:

(1) Age Discrimination In Employment Act (ADEA) which protects people who are 40 or older from both discrimination on account of age and unlawful retaliation against a person “because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit”; and

(2) Americans with Disabilities Act (ADA) that prohibits discrimination and unlawful retaliation against a qualified person with a disability. The ADA also “makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.” Further, the ADA requires that “employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.”

See id.

#1 — THE WASHINGTON LAW AGAINST DISCRIMINATION

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

It is also an unfair practice for an employer to retaliate against an employee, because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit. See id.

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

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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.

–gw

December 30, 2021October 21, 2024

Canon of Harmonious Statutory Scheme

Under Washington State canons of statutory construction, what is the canon of a total harmonious statutory scheme? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

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THE CANON OF HARMONIOUS STATUTORY SCHEME

According to the Canon of Harmonious Statutory Scheme:

Where possible, statutes should be read together to determine the legislative purpose and to achieve a total harmonious statutory scheme.

Marquis v. City of Spokane, 130 Wn.2d 97, 119 (Wash. 1996) (citing King County Fire Protection Dist., No. 16 v. Housing Auth., 123 Wash.2d 819, 826-27, 872 P.2d 516 (1994)). In addition:

The meaning of ambiguous statutes must be determined by examining the statutory scheme as a whole, and legislative history may serve as an important tool in divining legislative intent.

Id. (citing In re Sehome Park Care Ctr., 127 Wash.2d 774, 778, 903 P.2d 443 (1995)).

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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.

-gw

December 11, 2021October 21, 2024

Canon of Section Headings

Under Washington State canons of statutory construction, what is the canon regarding section headings? Here’s my point of view.

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CANON OF SECTION HEADINGS

“Where a statute is ambiguous, section headings enacted as a part of the act may assist in determining legislative intent, but they do not control the plain meaning.” Matter of Estate of Ray, 15 Wn. App. 2d 353, 362, 478 P.3d 1126 (2020), review denied sub nom. Stine v. Dep’t of Revenue, 197 Wn.2d 1009, 484 P.3d 1264 (2021).

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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.

-gw

December 2, 2021October 21, 2024

Unlawful Retaliation: Statutorily Protected Activity

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

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THE PRIMA FACIE CASE

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] an employee must show three things:

(1) the employee took a statutorily protected action,

(2) the employee suffered an adverse employment action, and

(3) a causal link between the employee’s protected activity and the adverse employment action.

Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #1 — STATUTORILY PROTECTED ACTIVITY

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

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

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

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

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

RCW 49.60.210 (emphasis and hyperlinks added).

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

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

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

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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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November 18, 2021October 21, 2024

Failure to Accommodate Religious Practices

Under the Washington Law Against Discrimination (WLAD), how does one establish a prima facie claim of Failure to Reasonably Accommodate Religious Practices? Here’s my point of view.

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

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FEDERAL LAW

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

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

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

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

Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 490, 325 P.3d 193 (Wash. 2014) (footnotes omitted) (hyperlinks and paragraph formatting added). However, “[t]he United States Supreme Court has never listed the elements of a prima facie claim for failure to accommodate religious practices.” Id. at 501 (footnote omitted).

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

“Several Courts of Appeals … have adopted a [failure-to-accommodate-religious-practices] test based on the ‘disparate impact’ burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Kumar, 180 Wn.2d at 490 (referencing, e.g., Equal Emp’t Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th Cir. 2013); Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012); Equal Emp’t Opportunity Comm’n v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); Berry v. Dep’t of Soc. Serv., 447 F.3d 642, 655 (9th Cir. 2006)) (emphasis added).

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

In Kumar v. Gate Gourmet, the Washington State Supreme Court applied the above failure-to-accommodate-religious-practices test for the first time. According to that test, “a plaintiff establishes a prima facie claim of failure to accommodate religious practices by showing that[:]

(1) he or she had a bona fide religious belief, the practice of which conflicted with employment duties;

(2) he or she informed the employer of the beliefs and the conflict; and

(3) the employer responded by subjecting the employee to threatened or actual discriminatory treatment.

Id. at 501-02 (citing Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012); Lawson v. Washington, 296 F.3d 799, 804 (9th Cir. 2002)) (footnote omitted) (emphasis added).

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

Regarding the third element of the prima facie case: “An employee need not be at immediate risk of actual firing or demotion to demonstrate threatened or actual discriminatory treatment.” Id. at 514 n.30 (referencing, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 655 (9th Cir. 2006) (“employee established an ‘adverse employment action’ for purposes of prima facie religious accommodation claim where employer ‘formally instruct[ed] him not to pray with or proselytize to clients'” ); Equal Emp’t Opportunity Comm’n v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”)) (internal quotation marks omitted).

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November 11, 2021October 21, 2024

The Tort of Battery

Under Washington State laws, what is the tort of battery? 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 TORT OF BATTERY (WA STATE)

A tort is “[a] civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.” Black’s Law Dictionary 1526 (8th ed. 2004). The tort of “‘battery’ is an intentional and unpermitted contact with the plaintiff’s person.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 504, 325 P.3d 193 (Wash. 2014).

THE ELEMENTS

“A defendant is liable for battery if[:]

(a) he [or she] acts intending to cause a harmful or offensive contact with the [plaintiff or a third party], or an imminent apprehension of such contact, and

(b) a harmful or offensive contact with the [plaintiff] directly or indirectly results.

Id. (citing Restatement (Second) of Torts § 13 (1965)) (second-fourth alterations in original) (internal quotation marks omitted) (emphasis added).

Thus, “[a] person … commits a battery where he or she performs [a]n act which, directly or indirectly, is the legal cause of a harmful contact with another’s person and that act is intentional, is not consented to, and is otherwise unprivileged.” Id. at 504 (second alteration in original) (internal citations an quotation marks omitted).

Battery cases often involve one or more of the following Issues: (1) offensive bodily contact, (2) intent, (3) force, and (4) fraud/duress.

(1) OFFENSIVE BODILY CONTACT

In Washington, “[a] bodily contact is offensive if it offends a reasonable sense of personal dignity.” Id. (citing Restatement (Second) of Torts § 19). “Thus, an offensive contact does not have to result in physical injury to constitute a battery.” Id. (referencing Seigel v. Long, 169 Ala. 79, 53 So. 753 (1910) (“facts established claim for battery where defendant pushed plaintiff’s hat back in order to see his face”); Crawford v. Bergen, 91 Iowa 675, 60 N.W. 205 (1894) (“facts established claim for battery where defendant placed his hand on the plaintiff’s shoulder and asked him an insulting question”)).

Nature of the Contact: “[T]he ‘contact’ element of a battery is simply a harmful or an offensive contact with the plaintiff; thus, a battery can occur where, for example, the plaintiff comes in harmful contact with the ground but never touches the defendant.” Id. at 504 (internal citation omitted).

(2) INTENT

“[T]he ‘intent’ element of battery is satisfied where a defendant knows to a ‘substantial certainty’ that his actions will result in the harmful or offensive touching.” Id. at 504-05 (internal citation omitted).

(3) FORCE

“‘[F]orce’ is not an element of battery.” Id. at 504 (internal citation omitted).

(4) FRAUD/DURESS

“A person therefore commits a battery where he or she performs [a]n act which, directly or indirectly, is the legal cause of a harmful contact with another’s person and that act is intentional, is not consented to, and is otherwise unprivileged.” Id. at 504 (alteration in original) (internal citations an quotation marks omitted). “These elements are met where the plaintiff’s consent to the contact is procured by fraud or duress.” Id. at 505 (internal citations omitted).

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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.

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November 4, 2021October 21, 2024

The Prima Facie Case: Disparate Impact

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

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

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DISPARATE IMPACT: THE PRIMA FACIE CASE

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

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

(1) a facially neutral employment practice

(2) falls more harshly on a protected class.

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

EXAMPLE: KUMAR v. GATE GOURMET, INC.

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

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

READ OUR RELATED ARTICLES

» Origin of the Disparate Impact Claim

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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.

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October 28, 2021October 21, 2024

The Absence of Implementing Rules

Under Washington State canons of statutory construction, what is the rule regarding absence of implementing rules? 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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ABSENCE OF IMPLEMENTING RULES: COURTS GIVE EFFECT TO THE LEGISLATURE’S INTENT

In Washington State, agencies are often authorized to promulgate implementing rules for associated statutes. However, issues can arise where agencies fail to enact such rules.

“[W]ith or without recourse to implementing rules, … court[s] must interpret … [Washington statutes] so as to give effect to the legislature’s intent.” See Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 496, 325 P.3d 193 (Wash. 2014).

WHEN SILENCE MEANS SOMETHING MORE

“It is certainly true that an administrative agency’s silence must be deemed significant where it admits of only one reasonable interpretation.” Id. at 494 (footnote omitted) (emphasis added). For example, “where [an] agency historically engaged in comprehensive regulation of certain industry practices, the agency’s silence regarding an affirmative defense based on a violation of those regulations was deemed significant[.]” Id. at 514 n.20 (referencing S. P. Transp. Co. v. Commercial metals Co., 456 U.S. 336, 345, 102 S.Ct. 1815, 72 L.Ed. 2d 114 (1982)).

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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.

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October 22, 2021October 21, 2024

Disability-Based Hostile Work Environment

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

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

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

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

(2) that the harassment was unwelcome,

(3) that it was because of the disability,

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

(5) that it was imputable to the employer.

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

SECOND ELEMENT (UNWELCOME)

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

THIRD ELEMENT (BECAUSE OF DISABILITY)

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

FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT)

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

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

FIFTH ELEMENT (IMPUTABLE TO EMPLOYER)

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

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

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

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

READ OUR RELATED ARTICLES

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

October 5, 2021October 21, 2024

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

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Protected Classes

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT DISCRIMINATION

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

PROTECTED CLASSES

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

1. Age (40+)

2. Creed

3. Citizenship or Immigration Status

4. HIV/AIDS and Hepatitis C Status

5. Honorably Discharged Veteran or Military Status

6. Marital Status

7. National Origin

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

9. Race or Color

10. Sex (including Pregnancy)

11. Sexual Orientation, including Gender Identity

12. State Employee or Health Care Whistleblower Status

13. Unlawful Retaliation (it is an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit)

14. Use of a Trained Dog Guide or Service Animal

WLAD REMEDIES

Pursuant to WLAD:

Any person deeming himself or herself injured by any act in violation of … [WLAD] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).

RCW 49.60.030(2).

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September 30, 2021October 21, 2024

Public Accommodations Discrimination

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

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WLAD: PLACES OF PUBLIC ACCOMMODATION

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

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

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

MEANING OF “FULL ENJOYMENT”

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

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

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

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

a plaintiff must prove that

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

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

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

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

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

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September 19, 2021October 21, 2024

Canon of Presumed Awareness

Under Washington State canons of statutory construction, what is the canon of presumed awareness? Here’s my point of view.

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THE CANON OF PRESUMED AWARENESS

Under the canon of presumed awareness: “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (reasoning that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992))).

In Dailey, the majority opinion essentially held that punitive damages are not available for employment discrimination under the Washington Law Against Discrimination, because the legislature has not expressly authorized them. See id at 574-75.

Read our related article entitled Presumption of Acquiescence concerning a similar Washington State canon of statutory construction.

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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.

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September 14, 2021October 21, 2024

Independent Contractors and Gender Discrimination

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

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INDEPENDENT CONTRACTORS: GENDER

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

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

THE PRIMA FACIE CASE

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

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

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

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

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

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

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

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

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

SUMMARY JUDGMENT: EVIDENCE

CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE

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

SUMMARY JUDGMENT IMPROPER

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

TOTALITY OF THE EVIDENCE

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

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September 8, 2021October 21, 2024

Elements of Negligent Misrepresentation

Under Washington State laws, what are the elements of negligent misrepresentation? Here’s my point of view.

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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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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.

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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.

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:

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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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August 3, 2021October 21, 2024

The Prima Facie Case: Hostile Work Environment

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is the prima facie case for hostile work environment (also known as harassment)? Here’s my point of view.

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HOSTILE WORK ENVIRONMENT (WA STATE)

Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).

THE PRIMA FACIE CASE (WA STATE)

In Washington, the term “hostile work environment” is synonymous with 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 (1): Harassment was unwelcome

“In 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.” Glasgow, 103 Wn.2d at 406.

-ELEMENT (2): The harassment was because of membership in a protected class

“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 … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.

-ELEMENT (3): The 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.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.

-ELEMENT (4): The harassment is imputable to the employer

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.

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. (emphasis and paragraph formatting added).

READ OUR RELATED ARTICLES

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

WLAD: Disparate Treatment via Hostile Work Environment

August 1, 2021October 21, 2024

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

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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).

WA State Torts: Public Disclosure of Private Facts

Under Washington State laws, what is the tort of “public disclosure of private facts“? 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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COMMON LAW RIGHT TO PRIVACY

“Washington recognizes a common law right to privacy.” White v. Township of Winthrop, 128 Wn.App. 588, 593-94, 116 P.3d 1034, (Div. 3 2005) (citing Reid v. Pierce County, 136 Wash.2d 195, 207, 961 P.2d 333 (1998)). A violation of this right is considered a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.

PUBLIC DISCLOSURE OF PRIVATE FACTS

“Public disclosure of private facts” is a privacy tort in Washington State. Washington courts “base actions for … [commission of this tort] as articulated in RESTATEMENT (SECOND) OF TORTS § 652D (1977):

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

White, 128 Wn.App at 593-94 (citing Reid, 136 Wash.2d at 205, 961 P.2d 333)) (internal citations and quotation marks omitted).

EXAMPLE

“As concerns the general nature of matters protected by the right of privacy:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends.

Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget.

When these intimate details of his life are spread [b]efore the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

White, 128 Wn.App. at 594 (citing Cowles Publ’g Co. v. State Patrol, 109 Wash.2d 712, 721, 748 P.2d 597 (1988)) (internal citations omitted) (paragraph formatting added).

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June 29, 2021October 20, 2024

Unlawful Retaliation: The Actual-Knowledge Standard

Under Washington State law, how is the actual-knowledge standard applied to causation issues for purposes of unlawful retaliation cases? 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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UNLAWFUL RETALIATION (WA STATE)

“To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link [(i.e., causation)] between the employee’s protected activity and the adverse employment action.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis and hyperlink added).

The focus of this article is the third element: causal link (or causation). “An employee [shows a causal link (i.e., causation)] ‘by [revealing] … that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (Wash. 2018) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

SUMMARY JUDGMENT (WA STATE)

“[T]o avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. at 235 (internal citation omitted). “Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added).

The 2nd element (i.e., the employer had knowledge of the action) is at issue; one associated standard of causation applied to unlawful retaliation cases is the “actual knowledge” standard (hereinafter, “actual-knowledge standard”).

CAUSATION: THE ACTUAL KNOWLEDGE STANDARD (WA STATE)

Under this standard, “the employer [must] have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235. (internal citations omitted).

The policy behind the actual-knowledge standard is that “[b]ecause retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added). “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

At summary judgment, “[t]he proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original) (emphasis added).

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

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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 29, 2021October 20, 2024

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

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment: A Closer Look**

» 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**

» 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 29, 2021October 20, 2024

Express Direction Rule & Final Judgments: WA State

Under Washington State law, what is the Express Direction Rule and how is it applied to judgments in Washington State Superior Courts? 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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CIVIL RULE 54(b) — JUDGMENTS ON MULTIPLE CLAIMS

Washington State Superior Court Civil Rule 54(b) governs entry of judgments on multiple claims and provides that “the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” Fluor Enterprises, Inc. v. Walter Construction, LTD., 141 Wn.App. 761, 766, 172 P.3d 368, (Div. I 2007) (quotation marks omitted).

Accordingly, the courts have held that four things are required for entry of a final judgment under CR 54(b):

(1) more than one claim for relief or more than one party against whom relief is sought;

(2) an express determination that there is no just reason for delay;

(3) written findings supporting the determination that there is no just reason for delay; and

(4) an express direction for entry of the judgment.

Fluor Enterprises, Inc., 141 Wn.App. at 766-67 (quotation marks omitted) (emphasis added).

EXPRESS DIRECTION FOR ENTRY OF THE JUDGMENT

Washington State appellate courts have clarified that element four–an express direction for entry of the judgment–requires that the trial court’s order must expressly direct entry of a CR 54(b) final judgment or it will not meet the requirements of CR 54(b). Fluor Enterprises, Inc., 141 Wn.App. at 769.

In Fluor Enterprises, Inc., there was more than one claim for relief and the trial court’s order on one of the claims did not expressly direct entry of a CR 54(b) final judgment. Consequently, the court held that the trial court’s order as to that claim did not meet the requirements of CR 54(b). Id.

ALL CLAIMS FOR & AGAINST ALL PARTIES

It is worth noting that Washington State appellate courts have expressly mandated that entry of a final judgment should await the resolution of all claims for and against all parties. Id. at 767 (internal citations omitted) (quoting Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wn.App. 665, 82 P.3d 1199, rev. denied, 152 Wn.2d 1023, 101 P.3d 107 (2004)).

Furthermore, the appellate courts have held that the following reasons justify a trial court’s delay of the entry of a final judgment until all claims had been resolved:

(1) to offset judgments favorable to each side before any enforcement activity takes place;

(2) to preclude the disruptive effects of enforcement and appellate activity while trial court proceedings are still ongoing; and

(3) to avoid a multiplicity of appeals.

Id. (internal citations and quotation marks omitted).

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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

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).

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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.

–gw

Top 3 Hostile Work Environment Issues

Under the Washington Law Against Discrimination (WLAD), hostile work environment (also known as “harassment”) 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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WLAD: HOSTILE WORK ENVIRONMENT

Generally, to establish a claim of hostile work environment, the plaintiff must establish the following: the harassment was unwelcome; the harassment was because of membership in a protected class; the harassment affected the terms and conditions or employment; and the harassment can be imputed to the employer.

Here are my top 3 hostile work environment issues under the WLAD:

#1 – The Harassment was Unwelcome & Because of Protected Class

In order to establish 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.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406 (Wash. 1985).

Moreover, the harassment must be on account of the plaintiff’s membership in one or more protected classes. See id. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had not been in” the protected class? See id.

#2 – The Harassment Affected 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. at 406-07. To be actionable, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

#3 – The Harassment is Imputed to Employer

Harassment is imputed to the employer where there is sufficient proof that an owner, manager, partner or corporate officer personally participates in the harassment. Id. at 407.

Otherwise, “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.

READ OUR RELATED ARTICLES

Harassment & Terms or Conditions of Employment: A Closer Look

Hostile Work Environment: Imputing Harassment to Employer

Hostile Work Environment: Terms or Conditions of Employment

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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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

The Valid Regulation Presumption

Under Washington State canons of statutory construction, what is the Valid Regulation Presumption? 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 VALID REGULATION PRESUMPTION

Generally, regulations implement statutes. In Washington State, the Valid Regulation Presumption is as follows:

There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it …. [The court’s] review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.

Barnes v. Washington Natural Gas Company, 22 Wn.App. 576, 580, 591 P.2d 461 (Div. 1 1997) (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

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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.

-gw

FRCP 35 Exams Based on Emotional Distress (9th Circuit)

Under federal law, does a plaintiff’s claim of emotional distress place his/her mental condition in controversy for purposes of FRCP 35 exams? 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 GENERAL RULE

If a plaintiff objects to a FRCP 35 exam, the court has discretion to enter an order compelling examination only if the employer can establish:

(A) that a physical or mental condition of the person sought to be examined is “in controversy,” and

(B) that “good cause” exists.

See Houghton v. M & F Fishing, Inc., 198 F.R.D. 666, 667 (2001) (internal citations and quotation marks omitted).

Courts in jurisdictions throughout the country are divided on the issue as to whether a claim of emotional distress places the plaintiff’s mental condition at issue (in controversy). But the modern trend in courts is to increasingly find that it does not.

FRCP 35 EXAMS BASED ON EMOTIONAL DISTRESS: 9TH CIRCUIT

The general position of courts in the 9th Circuit appears to be that a claim for emotional distress damages, by itself, is not sufficient to place the plaintiff’s mental condition in controversy for purposes of FRCP 35(a). Ford v. Contra Costa County, 179 F.R.D. 579, 580 (N.D.Cal. 1998) (referencing, Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.Cal.1995) (thoroughly surveying the relevant case law, distinguishing several unconventional cases including Smedley v. Capps, Staples, Ward, hastings & Dodson, 820 F.Supp. 1227 (N.D.Cal.1993), and determining not to set Smedly, inter alia, as precedent)) (internal quotation marks omitted).

Instead, the trend for 9th Circuit courts is as follows:

[T]he movant must also demonstrate that (1) the plaintiff has pled a cause of action for intentional or negligent infliction of emotional distress; (2) the plaintiff has alleged a specific mental or psychiatric injury; (3) the plaintiff has pled a claim for unusually severe emotional distress; (4) the plaintiff plans to offer expert testimony to support a claim of emotional distress and/or (5) the plaintiff has conceded that his or her mental condition is ” in controversy” for purposes of FRCP 35(a).

Id. (internal citation omitted).

These courts have further found that a Plaintiff merely seeking damages in excess of a million dollars for humiliation, mental anguish, and emotional distress does not justify a request for a mental examination. Turner v. Imperial Stores, 161 F.R.D. at 97.

GARDEN VARIETY EMOTIONAL DISTRESS

Thus, for example, a plaintiff seeking “garden variety emotional distress” damages in excess of one million dollars, pursuant to claims solely under the Civil Rights Act of 1964, may argue that he/she is not subject to FRCP 35 examination, because his/her mental condition is not in controversy (provided he/she does not satisfy the additional above mentioned requirements set forth in Ford v. Contra Costa County, 179 F.R.D. at 580 (N.D.Cal. 1998), supra); but whoever asserts this type argument should be prepared to fight it out in Court — the defendant(s) will likely file a motion.

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June 27, 2021October 20, 2024

The Same Actor Inference Defense

Under federal law, what is the “same actor inference” defense? 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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SAME ACTOR INFERENCE DEFENSE

The “Same-Actor-Inference” (Inference) is a potential employer defense to a claim of employment discrimination under federal law. It is applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (internal quotation marks and citations omitted).

The Inference is based on the principle that an employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs. Id. The Inference can be further described in terms of scope and proximity.

SCOPE

The scope of the Inference makes it is also applicable where the employee was not actually fired but merely offered a less desirable job assignment. Id. Moreover, the Same-Actor Inference is neither a mandatory presumption nor a mere possible conclusion for the jury to draw; it is a strong inference that a court must take into account on a summary judgment motion. Id. at 1098.

Thus, it is not valid to argue that the Inference is not a proper consideration at summary judgment.

PROXIMITY

As far as proximity: for the Inference to apply, it is not required that the alleged discrimination take place within a “short” period of time after the favorable action; for example, a 3 year gap in time was held to be short enough in time for the Inference to apply. Id. at 1097 (citing Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000) (basing affirmance of summary judgment in an employment discrimination case in part on the fact that the plaintiff “was fired by the same man who had hired him three years earlier”)).

However, proximity becomes a potential plaintiff rebuttal when there is an allegation that unlawful bias developed by employer-actor after the favorable action and proximate to the negative employment action. See id.

The bottom line is that the Inference, if properly raised by the employer, is difficult for a plaintiff to overcome.

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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:

Employment-Discrimination Hotlines & Unlawful Retaliation

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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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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

The Canon of Statutory Parallelism

Under Washington State canons of statutory construction, what is statutory parallelism? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(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 CANON OF STATUTORY PARALLELISM

Statutory parallelism is a term that I’ve coined for the following assumption commonly held by Washington State courts:

[W]hen the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout.

Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504, 509 (Wash. 2017) (citing Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972)).

EXAMPLE: CERT. FROM U.S. DIST. CT. FOR EAST DIST. OF WA IN ZHU v. NORTH CENTRAL ESD 171

In Zhu, the WA State Supreme Court decided that the Washington Law Against Discrimination (i.e., RCW 49.60.210(1)) creates “a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer[.]”

This was an issue of first impression. As part of its decision, the WA Court evaluated the Washington Law Against Discrimination (WLAD) definition of the term “employer.” In so doing, the Court concluded:

For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit. . . .

This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD. See Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout).

Zhu Cert., 404 P.3d at 509 (emphasis added).

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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.

-gw

June 27, 2021October 20, 2024

Washington Priority of Action Rule: Same Relief

Under the Washington Priority of Action Rule, how do Washington State courts determine if the relief is the same? 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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PRIORITY OF ACTION RULE

The Washington Priority of Action Rule (Rule) will only apply if the two relevant cases involve identical (1) subject matter, (2) parties, and (3) relief. Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990).

These factors must be established before the Rule should be applied. Id. The identity of the above elements must be such that a decision in one tribunal would bar proceedings in the other because of res judicata. State ex rel. Evergreen Freedom Foundation v. Washington Educ. Ass’n, 111 Wn.App. 586, 607, 49 P.3d 894 (Div. 2 2002).

If the Rule applies, the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved. Am. Mobile Home, 115 Wn.2d at 316-17.

ELEMENT #3: IDENTICAL RELIEF

The Washington State Supreme Court has established the following factors to determine if “the relief is the same” for purposes of the Washington Priority of Action Rule:

(1) whether the form of relief available to each tribunal is the same (FORM OF RELIEF); and

(2) whether the first tribunal can resort to another to equalize any disparity in the amount of relief available between the first and second lawsuits (EQUALIZE DISPARITY)?

See, State ex rel. Evergreen Freedom Found., 111 Wn. App. at 607, 49 (holding that the remedy was the same in both suits, because the type of relief available to both courts was the same, and because the administrative agency could otherwise seek relief in superior court in the first case to equalize any disparity in the amount of relief available in the administrative tribunal).

EXAMPLE: EVERGREEN FREEDOM FOUND v. WASHINGTON EDUC. ASS’N

In Evergreen Freedom Found. v. Washington Educ. Ass’n, plaintiff attempted to amend its citizens lawsuit in superior court by adding claims that were contemporaneously being pursued by an administrative agency with statutory authority to preempt plaintiffs’ lawsuit; plaintiff sought, inter alia, the same form of remedy (i.e., a fine) as the administrative agency based on the same statute.

The court ruled that the relief was the same in both actions and upheld the trial court’s application of the priority of action rule, because the relief in both cases was a monetary fine pursuant to RCW 42.17.395(4), and because any disparity in the amount of relief available could be eliminated if the administrative tribunal ushered the claim to superior court.

The court then analyzed res judicata and concluded jurisdiction in the second court was improper under Washington Priority of Action Rule. State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn. App. 586, 49 P.3d 894 (2002).

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Affirmative and Negative Defenses

Under federal law, are defendants allowed to plead “negative” defenses in answer to a federal complaint in federal court? 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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AFFIRMATIVE DEFENSES

“An affirmative defense, under the meaning of Fed.R.Civ.P. 8(c), is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011) (internal citation omitted) (hyperlinks added). The burden for establishing affirmative defenses generally lies on the defendant. Id. (internal citation omitted).

NEGATIVE DEFENSES

However, “negative” defenses are merely rebuttal to plaintiff’s claims and should be stricken; the courts have held these so-called affirmative defenses (or negative defenses) simply provide a basis to negate an element of the prima facie case for relief and are restatements of denials present in earlier parts of the complaint. See id. (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (striking eight “negative” defenses); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (“A defense which demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is required to prove] is not an affirmative defense.”(citing Flav-O-Rich v. Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.1988))) (internal quotation marks omitted) (hyperlinks added).

CONCLUSION

It appears that under federal law, defendants may plead “negative” defenses in answer to a federal complaint in federal court, but such negative defenses are not affirmative defenses and should be stricken as a defense. A fundamental consideration is whether the time, expense, and risk in bringing the motion to strike is outweighed by the benefit. Obviously, that is only a question for a party or party representative to answer relative to their particular matter.

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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.

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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.

–gw

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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Property Interests in Continued Employment: WA State

In Washington State, do Washington State civil service employees–dischargeable only for cause–have property interests in continued employment? 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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GOLDBERG TWO-STEP PROCESS

In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), “[t]he Supreme Court … enunciated a two-step process for analyzing cases involving deprivation of a governmental benefit” in violation of due process, as follows:

1. it must first be ascertained whether the interest at issue is a constitutionally protected property or liberty interest; and

2. if the interest is a protected one, the court must determine if the deprived beneficiary has been afforded due process.

See Belnap v. Chang, 707 F.2d 1100, 1102 (9th Cir. 1983) (internal citations and quotation marks omitted).

In relation to element 1 above, “property interests are not created by the Constitution, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source, such as state law. . . .” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494, 53 USLW 4306 (1985) (emphasis added) (internal citations omitted).

RELEVANT WA STATE LAW

Accordingly, the Washington State Supreme Court has held that “protected property interests can arise from express or implied contracts for continued employment, objective representations of tenure, . . . or even collective bargaining agreements providing for continued employment.” Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987) (internal citations omitted). As a result, “constitutionally protected property interests may arise in public employment where civil service laws provide an express or implied contract for continued employment.” Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, I believe that civil service employees dischargeable only for cause have protected property interests in continued employment. See id. at 796-97 (internal citations omitted).

Example: Danielson v. City of Seattle

For example, in Danielson, a Seattle police officer committed theft and was subsequently discharged. The Seattle Municipal Code and the Seattle City Charter established that no civil service employees may be discharged from employment except for cause. As a result, the court held that the police office had a property interest in continued employment. Id.

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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.

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National Bank Act Preemption & Title VII

Within the 9th Circuit, does the National Bank Act preempt Title VII of the Civil Rights Act of 1964? 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 NATIONAL BANK ACT

The National Bank Act provides, inter alia, that a national bank shall have the power “[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” 12 U.S.C. § 24(Fifth) (emphasis added).

This is also known as the “at-pleasure provision” of § 24(Fifth) that is part of the scheme of federal laws governing the duties and powers of federally chartered banks. Thus, as a threshold matter, a federally chartered bank seeking to utilize the at-pleasure provision to preempt an employee’s claims for relief under other laws must first show that the employee was (1) appointed by the board of directors, (2) terminated by the board of directors, and (3) an officer.

THE PURPOSE

The original congressional intent behind the at-pleasure provision of the National Bank Act was to ensure the financial stability of the banking institutions by affording them the means to discharge employees who were felt to compromise an institution’s integrity. Kroske v. United States Bank Corp., 432 F.3d 976, 983-84 (9th Cir. 2005) (internal citations and quotation marks omitted).

Accordingly, courts uniformly have concluded that a bank’s power to dismiss at pleasure is analogous to dismiss at will, implying the absence of a contractual relationship between employer and employee. Id. at 984 (internal citations and quotation marks omitted).

THE CIVIL RIGHTS ACT OF 1964

On the other hand, Title VII of the Civil Rights Act of 1964 makes it unlawful for certain employers (e.g., a bank) to discriminate against an individual on the basis of race, color, religion, national origin, or sex; additional organizational forms are within purview of Title VII, but they are beyond the scope of this article.

Title VII also makes it illegal to retaliate against an individual because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

THE INTERSECTION

The intersection of the at-pleasure provision and Title VII presents a potential conflict of laws; and the 9th Circuit, in Kroske v. US Bank Corp, resolved the conflict in favor of bank officers both hired and fired by the board of directors. See Kroske v. United States Bank Corp., 432 F.3d 976 (9th Cir. 2005).

In Kroske, Kathy Kroske was a bank officer that was both hired and fired by the board of directors, and Kroske subsequently filed suit against the bank alleging age discrimination under Washington Law Against Discrimination (WLAD). Accordingly, one of the issues the court addressed was whether the at-pleasure provision preempted her age discrimination claim under WLAD?

The court, in reaching its conclusion (the analysis is beyond the scope of this article), found, inter alia, that federal anti-discrimination statutes were relevant to its inquiry because federally chartered banks are not exempt from liability under those laws. Id. at 986 (see Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) (holding that members of a class of black employees of a Federal Reserve Bank could maintain separate actions against the bank under Title VII); see also Enforcement Guidance on Coverage of Federal Reserve Banks, EEOC Decision No. N-915-002 (1993) (concluding that Federal Reserve Banks are not executive agencies and are covered by Title VII, the ADEA, the Equal Pay Act (“EPA”), and the Americans with Disabilities Act (“ADA”) as private employers)).

The court went on to find that courts that have addressed the issue consistently have held that banks are subject to liability for discrimination under federal anti-discrimination laws irrespective of the bank’s right to dismiss an officer (or employee) at pleasure. Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, it would appear that the National Bank Act does not preempt Title VII of the Civil Rights Act of 1964.

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The Absurd-Consequences Rule

Under Washington State canons of statutory construction, what is the Absurd-Consequences Rule? 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 ABSURD-CONSEQUENCES RULE

In Washington State, courts “will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (Wash. 2002) (citing State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992)). “The spirit or purpose of an enactment should prevail over … express but inept wording.” Id. (citing State v. Day, 96 Wn.2d 646, 648, 638 P.2d 546 (1981)) (internal quotation marks omitted).

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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.

-gw

Section 1981 & Non-Employment Contracts (Ninth Circuit)

Under 42 U.S.C. § 1981, Equal Rights Under The Law, are non-employment contracts protected in the Ninth Circuit? 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 and Terms of Use before proceeding.)

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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

The problem is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).

The Plaintiff-Appellant (“Lindsey” dba “E-Jays Panache Images”) was a business that presented fashion shows; all representatives were African-American, and audience members were primarily African-American as well. The Defendant-Appellee (“SLT Los Angeles” or “the Westin”) owned and operated, inter alia, a Grand Ballroom in their subject Westin Hotel.

Lindsey contracted for use of the Grand Ballroom for an event, but on the day of the event, there was an apparent mix up by the Westin. He essentially alleged that they were denied the Grand Ballroom in favor of a Bar Mitzvah because of their race.

Lindsey sued in U.S. District Court for, inter alia, violations of 42 U.S.C. § 1981, and “the district court concluded that Appellant … [Lindsey] had failed to prove that the Westin’s actions, which had prevented Panache from hosting its annual Mother’s Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981.” Id. at 1141.

Lindsey appealed to the Ninth Circuit, and it reversed the district court and remanded for trial. The Ninth Circuit agreed with the decisions of other circuits that “the first three elements of the McDonnell Douglas test are easily adapted to claims arising under section 1981 outside of an employment context.” Id.

Accordingly, “the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)) (emphasis added).

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

However, the court identified that “the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court … [in Lindsey], requires that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.” Id. (emphasis added).

The court then pointed out that “the Seventh Circuit adopts this requirement … but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers.” Id. (internal citations omitted).

The 9th Circuit reasoned that “the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others.” Id. (internal citations omitted). Thus, “the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.” Id. (internal citations and quotation marks omitted).

Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context. The court found that the plaintiff in Lindsey offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, and, thus, it applied all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed.

CONCLUSION

It appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981:

1) membership in a protected class;

2) an attempt to contract for certain services;

3) denial of the right to contract for those services; and (possibly);

4) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

See Lindsey, 447 F.3d at 1145. When the plaintiff offers clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, the court will likely apply all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed. See id.

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Top 3 Courts for WLAD Claims

Depending on the circumstances, a plaintiff may have a choice of litigating their Washington Law Against Discrimination (WLAD) case in one of several different courts. Here are my top 3 courts for litigating WLAD claims (based on my point of view as an employment discrimination attorney 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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#3 – UNITED STATES DISTRICT COURTS

United States District Courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States; this is known as federal question jurisdiction. It is not uncommon for Plaintiffs to bring claims in the same lawsuit under both WLAD and Title VII of the Civil Rights Act of 1964 (Title VII) — or other federal anti-discrimination laws (e.g., Americans with Disabilities Act, Section 1981, etc.). Depending on the circumstances of each case, adding the Title VII claims may give U.S. District Courts original federal-question jurisdiction over the matter.

U.S. District Courts also have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between, inter alia, citizens of different States; this is known as diversity jurisdiction. Again, depending on the circumstances of each case, WLAD plaintiffs that initially sue employers–incorporated outside of Washington State–in state court may end up in U.S. District Court based on diversity jurisdiction.

#2 – WASHINGTON STATE DISTRICT COURTS

Washington State District Courts are courts of limited jurisdiction. For civil (employment discrimination) matters, this means that the court will have jurisdiction over the matter if, for each claimant, the value of the claim or the amount at issue does not exceed one hundred thousand dollars, exclusive of interest, costs, and attorneys’ fees (check the Revised Code of Washington for current dollar amounts). Thus, this court may also be a viable option for a WLAD plaintiff if the value of the case is appropriate.

#1 – WASHINGTON STATE SUPERIOR COURTS

Washington State Superior Courts are courts of general jurisdiction; typically, there is no maximum or minimum dollar amount that must be at issue. And, unlike U.S. District Courts, a unanimous jury is not required in order to render a favorable verdict for the plaintiff. Superior courts are commonly used by plaintiffs’ attorneys to bring WLAD claims.

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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.

–gw

The Dictionary Rule

Under Washington State canons of statutory construction, what is the dictionary rule? 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 DICTIONARY RULE

Generally, “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by reference to a standard dictionary.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (Wash. 2002) (citing State v. Sullivan, 143 Wn.2d 162, 174, 19 P.3d 1012 (2001)).

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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.

-gw

Ambiguous Contracts & Summary Judgment: WA State

Under Washington State law, how do courts view ambiguous contracts at summary judgment? 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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SUMMARY JUDGMENT NOT APPROPRIATE ON AMBIGUOUS CONTRACTS

Summary judgment is not appropriate on an ambiguous contract. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore not subject to summary judgment)(quotation marks and internal citations omitted). Whether a written contract is ambiguous or not is a question of law for the courts. Dice v. City of Montesano, 131 Wn.App. 675, 128 P.3d 1253 (Div. 2 2006), rev. denied, 158 Wn.2d 1017, 149 P.3d 377 (2006).

AMBIGUOUS CONTRACT PROVISIONS

Contract provisions can be ambiguous if two reasonable meanings can be attributed to the contract or if a material contract term is uncertain or capable of being understood as having more than one meaning. Marshall v. Thurston County, 165 Wn.App. at 351 (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore the release was not subject to summary judgment)(quotation marks and internal citations omitted).

EXAMPLE: MARSHALL v. THURSTON COUNTY

In Marshall v. Thurston County, Marshall filed a claim for damages in 2001 against Thurston County based on flooding to his property. Marshall eventually signed a release agreement with the County that exculpated the County from liability related to the 2001 claim as well as further claims arising from the “incident.”

However, in 2009, Marshall brought a new lawsuit for damages against the County as a result of additional flooding occurring after the release was signed. The County asserted that Marshall’s 2009 claim was barred by the previously executed release of liability, but the court found that the dispute turned on the meaning of the word “incident.”

The court then reasoned that the 2001 claim suggested two reasonable interpretations of “incident” and held that the release was ambiguous; “therefore summary judgment was not appropriate based on the meaning of the release.” Id.

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Top 3 Causation Standards: Unlawful Retaliation

Unlawful retaliation is common legal theory that plaintiff-employees assert under employment discrimination law; causation is one of several elements that must be proven. The Washington State Supreme Court has considered several standards of causation pursuant to claims of unlawful retaliation under the Washington Law Against Discrimination, RCW 49.60.

(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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UNLAWFUL RETALIATION (WA STATE)

“To establish a prima facie case of [unlawful] retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link between the employee’s protected activity and the adverse employment action.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis and hyperlink added).

The focus of this article is the third element: causal link (or causation). “An employee [shows a causal link (i.e., causation)] ‘by [revealing] … that retaliation was a substantial factor motivating the adverse employment decision.’ ” Cornwell, 430 P.3d at 235 (Wash. 2018) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

SUMMARY JUDGMENT (WA STATE)

“[T]o avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. at 235 (internal citation omitted). “Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added).

In this article, the 2nd element (i.e., the employer had knowledge of the action) is at issue, and the Washington State Supreme Court has considered several associated standards of causation.

TOP 3 STANDARDS OF UNLAWFUL-RETALIATION CAUSATION (WA STATE):

Here are my top 3 standards of unlawful-retaliation causation (WA State):

#3 — THE GENERAL-CORPORATE-KNOWLEDGE STANDARD

The general-corporate-knowledge standard is somewhat of a misnomer, because the Washington State Supreme Court both raised and dismissed it in Cornwell v. Microsoft Corporation, 430 P.3d 229, 235 (Wash. 2018) (“We decline to address the ‘general corporate knowledge’ standard in this case.”) (footnote omitted).

Nevertheless, the Court declared, “Under this standard, the jury can still find retaliation in circumstances where the particular decision-maker denies actual knowledge of the plaintiff’s protected activities, ‘so long as … the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’ ” Id. at 241, n. 6 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration in original; second alteration added).

This standard “may be useful in situations where many individuals act collectively in a large company[ ] [.]” Id.

#2 — THE KNEW-OR-SUSPECTED STANDARD

“The knew-or-suspected standard incorporates the ‘actual knowledge’ standard, infra, and also encompasses cases in which the employer suspects that an employee engaged in protected action.” Id. at 237 (footnote omitted) (emphasis added).

This standard “[r]equires sufficient evidence to reasonably infer ‘both that [a supervisor] either knew or suspected’ that an employee took a protected action ‘and that there was a causal connection between this knowledge or suspicion and [the employee’s] termination.’ ” Id. (citing Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003)) (alteration in original).

EXAMPLE: “This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.” Id.

SUMMARY JUDGMENT: “So long as an employee produces evidence from which a reasonable jury could infer that retaliation had taken place, this is sufficient to survive summary judgment.” Id. (citing Hernandez at 1114). “And while, a jury could believe the supervisor’s version of events rather than the employee’s, the jury must be permitted to consider and weigh evidence.” Id.

#1 — THE ACTUAL-KNOWLEDGE STANDARD

Under the actual-knowledge standard, “the employer [must] have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235. (internal citations omitted).

LEGAL SIGNIFICANCE IRRELEVANT: But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added). “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

SUMMARY JUDGMENT: At summary judgment, “[t]he proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original) (emphasis added).

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

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

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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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.

The Relative and Qualifying Words-and-Phrases Rule

Under Washington State canons of statutory construction, what is the Relative and Qualifying Words-and-Phrases Rule? 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 RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE

In Washington State, “[c]ourts construe relative and qualifying words and phrases, both grammatically and legally, to refer to the last antecedent if a contrary intention does not appear in the statute.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 240, 59 P.3d 655 (Wash. 2002) (citing In re Application of Andy, 49 Wn.2d 449, 302 P.2d 963 (1956); see, e.g. Caughey v. Employment Sec. Dep’t, 81 Wn.2d 597, 602, 503 P.2d 460 (1972) (“[W]here no contrary intention appears in a statute, relative and qualifying words and phrases refer to the last antecedent.”)).

“The reason for this rule … is to make clear what is being modified.” Id.

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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.

-gw

The Diversity Jurisdiction Gambit

Under 28 U.S.C. § 1332, is a plaintiff that files an employment discrimination case originally in Federal court, based on diversity jurisdiction, entitled to costs when the court finally adjudges that Plaintiff is entitled to recover less than the sum or value of $75,000? 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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DIVERSITY & SUPPLEMENTAL JURISDICTION

As an initial matter, United States District Courts have original jurisdiction (Diversity Jurisdiction) of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States; there are additional provisions. See 28 U.S.C. § 1332(a).

Further, in any civil action of which the district courts have original jurisdiction, the district courts shall have Supplemental Jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution; but, there are exceptions. See 28 U.S.C. § 1367(a)-(b).

In Washington State, employment discrimination cases typically involve these two jurisdictional bases; Plaintiffs often combine Title VII claims with Washington Law Against Discrimination claims and associated state tort claims. Employer-defendants in such cases are often incorporated out of state. This article addresses the scenario wherein the plaintiff elects to initially file suit in federal court based on similar circumstances.

THE DIVERSITY JURISDICTION GAMBIT

There may be risks for the discrimination plaintiff that initially files in Federal court. The relevant law is 28 U.S.C. § 1332(b), and it states as follows:

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

Id. According to this statute, a plaintiff may be denied costs and/or required to pay costs in the event of a favorable verdict that is below $75,000.

CONCLUSION

Subject to exceptions, a plaintiff that files an employment discrimination case originally in Federal court based on diversity jurisdiction must, arguably, recover $75,000 or more (without regard to setoff and counterclaim; and exclusive of interest and costs), or the court may deny costs authorized by statute to the plaintiff. Moreover, the court may also impose costs on the plaintiff.

But this law may be superseded by an express provision in a statute of the United States. In any event, this is a gambit that some plaintiffs may not want to take – proceed with caution.

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Top 3 Employment Discrimination Agencies

In Washington State, employees may seek recourse for employment discrimination through federal, state, and local governmental agencies. Here’s my countdown of the top 3 employment discrimination agencies in the state of Washington (based on my point of view as an employment discrimination attorney):

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#3 — MUNICIPAL CIVIL RIGHTS DEPARTMENTS

Some municipalities (e.g., Seattle Office for Civil Rights, Tacoma Human Rights Commission, etc.) have established departments that work to resolve, inter alia, employment discrimination and retaliation complaints based on protected classes. The services offered by these departments vary from city to city, and not all municipalities in Washington State maintain such departments.

#2 — U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The United States Equal Employment Opportunity Commission (EEOC) enforces Federal laws prohibiting employment discrimination. You may seek recourse through the EEOC if you experience employment discrimination that involves:

1. Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

2. Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

3. Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.

4. Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

Visit the EEOC Website to learn more.

#1 — WASHINGTON STATE HUMAN RIGHTS COMMISSION

The Washington Law Against Discrimination (WLAD), RCW 49.60, is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions based on protected classes.

Protected classes include the following: race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, 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.

WLAD also prohibits retaliation against persons who engage in protected activity in relation to discriminatory practices, and those who file health care and state employee whistleblower complaints.

The Washington State Human Rights Commission (WSHRC) is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. It works to prevent and eliminate discrimination through complaint investigation, alternative dispute resolution, and education, training and outreach activities.

Visit the WSHRC Website to get more information.

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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.

–gw