LAW OFFICE OF GREGORY A. WILLIAMS

April 24, 2025April 24, 2025

Citation to Unpublished Opinions

Under Washington State Court Rules, may a party to a lawsuit cite as authority an unpublished appellate court opinion? 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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CITATION TO UNPUBLISHED OPINIONS — GR 14.1

In the legal world, not all opinions are created equal—especially when it comes to citing them in court. Washington’s General Rule (GR) 14.1* outlines how lawyers and judges can (and can’t) use unpublished opinions, both from Washington and other jurisdictions. The relevant rule states as follows:

GR 14.1
CITATION TO UNPUBLISHED OPINIONS

(a) Washington Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports. Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2013, may be cited as nonbinding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.

(b) Other Jurisdictions. A party may cite as an authority an opinion designated “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like that has been issued by any court from a jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court.

(c) Citation of Unpublished Opinions in Subsequent Opinions. Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.

(d) Copies of Unpublished Opinions. The party citing an unpublished opinion from a jurisdiction other than Washington shall file and serve a copy of the opinion as an appendix to the pleading in which the authority is cited.

GR 14.1* (emphasis added). Here’s a quick breakdown of what this rule means.

What Are Unpublished Opinions?

In Washington, unpublished opinions from the Court of Appeals are those that aren’t published in the official Washington Appellate Reports. Traditionally, these opinions don’t carry any precedential weight, meaning they aren’t binding on future cases.

Can They Be Cited?

Yes, but with conditions. If the unpublished opinion was filed on or after March 1, 2013, it can be cited—but only as nonbinding authority. The person citing it must clearly label it as such. Courts may consider the opinion’s reasoning persuasive, but they’re not required to follow it.

What About Opinions from Other States?

Washington courts will accept citations to unpublished or non-precedential opinions from other jurisdictions only if the rules of that jurisdiction allow it. So, it’s important to check the laws of the originating court before citing.

Washington Courts Using Unpublished Opinions

Interestingly, Washington appellate courts generally avoid citing unpublished opinions themselves. They’re encouraged to do so only when it’s necessary for making a well-reasoned decision.

One Last Requirement

If you’re citing an unpublished opinion from outside Washington, you’ll need to include a copy of it as an appendix to your filing and properly serve the same. This ensures everyone involved has access to the full context of the case.

FINAL THOUGHTS

GR 14.1 strikes a balance: it allows legal professionals to reference unpublished opinions without giving them undue weight. It opens the door to persuasive arguments while preserving the integrity of Washington’s published case law.

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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.

April 17, 2025April 21, 2025

WSHRC: Sanctions

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning sanctions? Here’s my point of view.

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WSHRC: PRACTICE AND PROCEDURE: SANCTIONS

In administrative law, procedural compliance is essential to ensuring fairness and efficiency. Washington State’s Administrative Code, specifically WAC 162-08-015*, outlines the authority of administrative law judges and the Washington State Human Rights Commission to impose sanctions for misconduct or procedural abuse during administrative proceedings. This provision plays a critical role in maintaining the integrity of administrative processes, especially in cases related to discrimination and civil rights enforcement. The relevant provision states as follows:

WAC 162-08-015
Sanctions.

(1) Administrative hearings. In a case which has been noted for hearing the administrative law judge, on his or her own initiative or on motion of a party, may order a party or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms or pay compensatory damages including attorney’s fees to any other person who has been harmed by the delay or the failure to comply. The administrative law judge may condition the right of a party to take specific action or raise specific defenses on satisfaction of the terms of the order or payment of the damages and attorney’s fees. The administrative law judge may condition the right of a counsel to participate further in the case upon satisfaction of the terms of an order or payment of the damages and attorney’s fees. The administrative law judge shall incorporate in his or her final order any sanctions order which has not been complied with, so that the sanctions order may be enforced as provided in RCW 49.60.260* and 49.60.270* and appealed from as provided in RCW 34.05.514*.

(2) Other proceedings. In a proceeding not covered by subsection (1) of this section, the chairperson of the commission may order a person or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms, and the chairperson may condition further participation in a proceeding on compliance with these rules or orders imposing terms, but the chairperson of the commission shall not impose sanctions in the form of payment of damages or attorney’s fees.

WAC 162-08-015*.

OVERVIEW OF WAC 162-08-015

WAC 162-08-015* sets forth two primary categories where sanctions may be imposed: administrative hearings and other commission proceedings. Each category has distinct rules and enforcement mechanisms designed to deter misuse of the process and ensure accountability.

1. Sanctions in Administrative Hearings

When a case proceeds to a formal hearing, the administrative law judge (ALJ) is empowered to issue sanctions against parties or their legal representatives. These sanctions may arise under the following circumstances:

a. Using procedural rules for delay: If a party or attorney exploits the rules solely to stall the process.

b. Non-compliance: If there is a failure to follow procedural requirements or prior orders from the ALJ.

In such cases, the ALJ may require the offending party or attorney to:

• Satisfy certain terms (such as taking remedial actions),

• Pay compensatory damages,

• Reimburse attorney’s fees incurred by the opposing party.

Importantly, the ALJ may condition further participation in the hearing on compliance with these sanctions. This includes limiting the party’s ability to take actions or raise defenses until the sanctions are fulfilled.

Any unresolved sanctions at the time of the final ruling are incorporated into the final order, making them enforceable under RCW 49.60.260* and RCW 49.60.270*, and subject to appeal as described in RCW 34.05.514*.

2. Sanctions in Other Proceedings

Outside of formal hearings—such as during investigations or informal commission processes—the Chairperson of the Washington State Human Rights Commission holds similar, though more limited, authority.

In these contexts, if a person or attorney causes delay or violates procedural rules or orders, the Chairperson can:

• Impose conditions for continued participation in the proceeding,

• Order compliance with previously established rules or directives.

However, unlike in administrative hearings, the Chairperson cannot order the payment of damages or attorney’s fees in these situations.

IMPORTANCE AND IMPACT

The inclusion of sanctions in WAC 162-08-015 reinforces a critical principle in administrative justice: that efficiency and fairness must be preserved throughout the legal process. By allowing for compensatory remedies in formal settings and enforcing procedural discipline in informal ones, the regulation discourages frivolous tactics and promotes respectful engagement.

These provisions also help protect claimants and respondents alike from unnecessary delays and expenses, especially in matters involving civil rights and discrimination claims—areas where timely resolution is often essential to justice.

FINAL THOUGHTS

WAC 162-08-015* is a valuable tool in Washington State’s administrative framework, promoting accountability among participants in legal proceedings under the Human Rights Commission’s jurisdiction. Whether you are a party to a case or a legal representative, understanding this regulation is essential for navigating administrative hearings with integrity and professionalism.

If you are involved in a case before the Washington State Human Rights Commission, it’s wise to consult with an attorney who understands the nuances of administrative law and can help ensure compliance with all applicable rules—including WAC 162-08-015*.

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

» WA State Human Rights Commission Complaints

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

» WSHRC: From Complaint to Conclusion

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

April 8, 2025April 17, 2025

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.)

NEED HELP?

If you need legal assistance, 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.

April 5, 2025April 24, 2025

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.

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

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WASHINGTON 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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April 3, 2025April 3, 2025

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**

» The Washington State Human Rights Commission**

» WA State Human Rights Commission Complaints

» 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.

March 27, 2025April 3, 2025

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).

READ OUR RELATED ARTICLES

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

» The Prima Facie Case: Disparate Impact

» Title VII of the Civil Rights Act of 1964

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March 20, 2025March 20, 2025

Definition of Demonstrates (Title VII)

Under Title VII of the Civil Rights Act of 1964, what is the definition of the term “demonstrates”? 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 vital federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.

DISCRIMINATION AND 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.

SCOPE OF TITLE VII

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

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

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

TITLE VII DEFINITION OF “DEMONSTRATES”

Title VII defines the term “demonstrates” as follows:

…

(m) The term “demonstrates” means meets the burdens of production and persuasion.

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

ENFORCEMENT

“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws[, including Title VII,] 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.” US 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)

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.

March 15, 2025April 17, 2025

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 13, 2025March 20, 2025

WSHRC: Organization and Operations

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning its organization and operations? Here’s my point of view.

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WSHRC: ORGANIZATION AND OPERATIONS

“Regulations of executive branch agencies are issued by authority of statutes. Like legislation and the Constitution, regulations are a source of primary law in Washington State.” Official Washington State Legislature Website, https://app.leg.wa.gov/WAC/default.aspx*, (last visited 3/13/25). The WSHRC regulations concerning its organization and operations are categorized as follows: (1) Membership; (2) Meetings; (3) Quorum; (4) Executive Director; (5) Authority and Duty; (6) Offices; (7) Where to obtain information; and (8) Where to make submissions or requests. See WAC 162-04-020*.

(1) Membership

“The Washington state human rights commission consists of five members, one of whom is designated as chairperson, appointed by the governor for staggered five-year terms.” WAC 162-04-020(1)*.

(2) Meetings

“The commission holds regular meetings commencing at 9:30 a.m. on the fourth Thursday of each month, except for November and December, at various places throughout the state. No regular meeting is held in August. The place and dates of the meetings can be learned by writing or calling the commission clerk at the Olympia office at (360) 753-6770.” WAC 162-04-020(2)*.

(3) Quorum

“Three members constitute a quorum. The affirmative vote of a majority of those present is action of the commission when there is a quorum at a meeting.” WAC 162-04-020(3)*.

(4) Executive director

“The executive director is the commission’s chief executive. [This individual] … is responsible for carrying out the commission’s programs and directing the commission’s staff.” WAC 162-04-020(4)*.

(5) Authority and duty

“It is the commission’s duty to administer the law against discrimination, chapter 49.60* RCW, which has as its purpose the elimination and prevention of discrimination because of race, creed, color, national origin, sex, marital status, age or handicap [sic]. The commission has the authority and duty to, among other things:

(a) Study and report on all things having an impact on human rights;

(b) Make recommendations to the governor, legislature, and agencies of state and local government;

(c) Create advisory agencies and conciliation councils;

(d) In the areas of employment, public accommodations, real property transactions, credit transactions and insurance transactions, initiate, receive and process complaints of unfair practices, hold hearings, issue orders, and seek enforcement of the orders in court.

WAC 162-04-020(5)* (emphasis and paragraph formatting added).

(6) Offices

“The commission’s principal office is 402 Evergreen Plaza Building, Seventh and Capitol Way, Olympia, Washington 98504-3341. Branch offices are maintained at the following locations:

Seattle:
1516 Second Avenue
Suite 400
Seattle, Washington 98101

Spokane:
W. 905 Riverside Ave.
Suite 416
Spokane, Washington 99201-1099

Tacoma:
Suite 110 Hess Building
901 Tacoma Avenue South
Tacoma, Washington 98402-2101

Yakima:
Washington Mutual Bldg.
Suite 441
32 No. Third St.
Yakima, Washington 98901-2730

WAC 162-04-020(6)* (emphasis and paragraph formatting added).

(7) Where to obtain information

“Information on the application of the law against discrimination and related material is available at all offices of the commission. Information that branch offices are not able to supply may be obtained from the clerk at the Olympia office.” WAC 162-04-020(7)*.

(8) Where to make submissions or requests

“In circumstances where no special provision is made by rule in this Title 162* WAC, submissions or requests to the commission may be directed to the executive director at either the Olympia or Seattle office.” WAC 162-04-020(8)*.

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

» WA State Human Rights Commission Complaints

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

» WSHRC: From Complaint to Conclusion

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.

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March 6, 2025March 20, 2025

The Tort of Battery

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

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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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March 6, 2025March 6, 2025

What are the elements of Negligent Hiring in WA State?

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FAQ: What are the elements of Negligent Hiring in WA State?

answer:

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).

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

» Negligent Hiring (WA State)

» Negligent Retention (WA State)

» Negligent Supervision (WA State)

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February 27, 2025

What are the elements of Negligent Supervision in WA State?

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FAQ: What are the elements of Negligent Supervision in WA State?

answer:

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)

» Negligent Supervision (WA State)

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February 26, 2025February 26, 2025

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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February 20, 2025February 24, 2025

Definition of Tort

Under Washington State laws, what is the definition of the term “tort”? Here’s my point of view.

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DEFINITION OF THE TERM “TORT”

Black’s Law Dictionary (Deluxe Eighth Edition) defines the term “tort” as follows:

[1.] 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. [2.] … The branch of law dealing with such wrongs.

Id. at 1526. Thus, a civil wrong other than breach of contract is called a “tort”; correspondingly, a criminal wrong is called a “crime.”

EXAMPLES OF TORTS COMMONLY LITIGATED WITH CLAIMS UNDER EMPLOYMENT DISCRIMINATION LAWS

Examples of torts commonly litigated with claims under employment-discrimination laws include, but are not limited to the following:

1. Negligent Hiring

2. Negligent Infliction of Emotional Distress*

3. Negligent Misrepresentation

4. Negligent Retention

5. Negligent Supervision

6. The Tort of Battery

7. The Tort of Outrage (Intentional Infliction of Emotional Distress)

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February 13, 2025February 13, 2025

What are the elements of Disparate Impact in WA State?

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FAQ: What are the elements of Disparate Impact in WA State?

answer:

The Washington State Supreme Court “has held that the WLAD [(Washington Law Against Discrimination]) 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)) (hyperlinks added).

“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).

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

» Definition of Prima Facie Case*

» Disparate Impact

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

» Origin of the Disparate Impact Claim

» The Prima Facie Case: Disparate Impact

» What is WA State’s law against employment discrimination?

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

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February 9, 2025February 19, 2025

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:

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)

need help?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

February 6, 2025February 6, 2025

Definition of Because of Sex (Title VII)

Under Title VII of the Civil Rights Act of 1964, what is the definition of “because of sex”? Here’s my point of view.

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

DISCRIMINATION AND PROTECTED CLASSES

RETALIATION

REASONABLE ACCOMMODATIONS

SCOPE OF TITLE VII

U.S. Department of Justice Website, Laws We Enforce* (last visited 1/10/23) (emphasis added). Certain Title VII terms are defined by law.

TITLE VII DEFINITION OF “BECAUSE OF SEX”

Title VII defines “because of sex” or “on the basis of sex” as follows:

42 U.S. Code § 2000e – Definitions

…

(k)The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy*, childbirth, or related medical conditions; and women affected by pregnancy*, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons* not so affected but similar in their ability or inability to work, and nothing in section 2000e–2(h)* of this title shall be interpreted to permit otherwise.

This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

42 U.S.C. § 2000e(k)* (paragraph formatting and hyperlinks added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.

ENFORCEMENT

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*

» Title VII of the Civil Rights Act of 1964

» Unlawful Employment Agency Practices (Title VII)

(*NOTE: The link will take the reader to our Williams Law Group Blog, an external website.)

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February 1, 2025February 12, 2025

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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January 30, 2025February 10, 2025

Can you prove employment discrimination without direct evidence?

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Can you prove employment discrimination without direct evidence?

answer:

Yes, plaintiffs can prove employment discrimination without direct evidence. 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).

Accordingly, the McDonnell Douglas burden-shifting test provides an alternative way for plaintiffs to establish a prima facie case of employment discrimination using indirect, circumstantial evidence instead of direct evidence.

The McDonnell Douglas Burden-Shifting Framework

The McDonnell Douglas burden-shifting framework* has three steps:

STEP 1*: The “plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination.” Scrivener v. Clark College*, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 2*: “[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason* for the adverse employment action.” Mikkelsen v. Public Utility District No. 1 of Kittitas County*, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis & hyperlink added).

STEP 3*: “[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant’s alleged nondiscriminatory reason for the adverse employment action was a pretext*.” Id.* (internal citations omitted) (emphasis & hyperlink added).

Read Our Related Articles

»Employment Law 101: Definition of Circumstantial Evidence (WA State)

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

»McDonnell Douglas Framework (Step 2): The Employer’s Burden*

»McDonnell Douglas Framework (Step 3): Proving Pretext*

»Proving Discrimination: The Direct-Evidence Method

»The McDonnell Douglas Burden Shifting Framework*

»The Pretext Element: Self-Evaluations*

»The Pretext Element: Six Limitations*

»The Pretext Element: Two Methods of Proof*

»Using Circumstantial Evidence to Prove Employment Discrimination

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

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January 23, 2025January 23, 2025

The Pari Materia Rule

Under Washington State canons of statutory construction, what is the Pari Materia Rule? 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).

THE PARI MATERIA RULE: INTERPRETING CONFLICTING STATUTORY PROVISIONS

Legal statutes can sometimes be difficult to interpret, particularly when different sections of a law appear to contradict one another. In such cases, courts rely on certain principles of interpretation to clarify the law’s intent. One such principle is known as pari materia, a rule of construction used when two provisions within the same statute or related statutes seem to conflict. The rule states as follows:

Reading the statutes in parimateria the rule of construction applies, that as between two conflicting parts of a statute, that part latest in order of position will prevail, where the first part is not more clear and explicit than the last part.

Schneider v. Forcier, 67 Wn.2d 161, 164, 406 P.2d 935 (Wash. 1965) (internal citation omitted).

Thus, the pari materia rule states that, when conflicting provisions exist, the more recent one—meaning the provision that comes last in the text—should generally take precedence. However, there’s an important exception to this. If the earlier provision is more precise or clearer in its wording, then it may still outweigh the later provision. This ensures that the most unambiguous and straightforward part of the law is followed, even if it isn’t the most recent.

THE POLICY BEHIND THE RULE

The rationale behind this rule is based on the idea that legal texts evolve over time through amendments, updates, or revisions. As laws change, they may introduce new provisions that supersede older ones. However, if the latest change is unclear or in conflict with the earlier law, courts prioritize clarity and explicit meaning to maintain consistency and avoid confusion in the legal system.

In practice, this rule helps resolve contradictions in a way that reflects the likely intent of lawmakers, allowing the law to adapt to new circumstances while maintaining a logical structure. By applying pari materia, judges can ensure that the most recent and relevant expression of the law is given proper weight, unless it conflicts with the clear intent of previous provisions.

CONCLUSION

The pari materia rule is an essential tool for interpreting statutes that contain conflicting sections. By giving preference to the most recent provisions, while allowing earlier, clearer provisions to take precedence when necessary, it helps ensure that the law remains consistent, coherent, and true to its original intent. This rule strikes a balance between respecting legislative changes and honoring the clarity of earlier laws.

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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 16, 2025January 16, 2025

Definition of Hearsay (WA State)

Under Washington State laws, what is the definition of hearsay? Here’s my point of view.

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Definition of Hearsay (WA State)

In the legal profession, there are specific guidelines that dictate how evidence can be used and presented in court. One such guideline involves hearsay, a rule that is central to maintaining fairness and ensuring that the evidence admitted is credible. Washington State law generally follows the principle of excluding hearsay, though there are notable exceptions (NOTE: this article will not address those exceptions). A clear understanding of what hearsay entails, particularly in the context of Washington law, is crucial for litigators.

Rule 801: What Constitutes Hearsay?

In Washington State, Evidence Rule (ER) 801 defines hearsay as follows:

…

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

ER 801(c)*. In simpler terms, this means that if someone is recounting what they heard or read from another person, that statement is generally regarded as hearsay. (NOTE: Within the ER 801 definition, the term “statement” means “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Id.* And the term “declarant” means “a person who makes a statement.” Id.*)

example

Thus, Hearsay is essentially an out-of-court statement offered to prove the truth of what is being asserted. In other words, it involves a statement made outside the courtroom, brought into court to establish that the information in the statement is accurate. As a general rule, hearsay is typically not allowed in court due to its inherent unreliability. Since these statements are not made under oath or subjected to cross-examination, they do not undergo the same level of scrutiny as in-court testimony, which can raise questions about their accuracy.

For instance, if a witness testifies, “I overheard my co-worker John say he saw Manager Smith covertly sabotage the plaintiff’s work,” this would be considered hearsay. The purpose of the statement is to prove that manager Smith was indeed the individual that set up the plaintiff for failure. However, since co-worker John is not available to testify in person and be questioned, the statement is generally excluded as unreliable evidence under the hearsay rule.

How Washington State Handles Hearsay

Washington State follows the foundational principles of hearsay outlined in the state’s own Rules of Evidence (specifically Rule 801). These rules provide a structure for determining when a statement qualifies as hearsay and when exceptions to the rule might apply (again, this article does not address those exceptions).

Conclusion

In conclusion, hearsay is an important concept in Washington State law that helps maintain the reliability and fairness of legal proceedings. Defined under ER 801, hearsay refers to an out-of-court statement used to prove the truth of what is being claimed. Generally, hearsay is not allowed in court because it lacks the safeguards of being made under oath or subject to cross-examination; however, there are exceptions beyond the scope of this article. A clear understanding of this rule is essential for legal professionals to ensure only credible evidence is presented in court.

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

» Proving Discrimination: The Direct-Evidence Method

» The McDonnell Douglas Burden-Shifting Framework*

» Using Circumstantial Evidence to Prove Employment Discrimination

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January 16, 2025January 16, 2025

Harassment & Terms or Conditions of Employment: A Closer Look

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, what criteria do courts use to determine whether workplace harassment is sufficiently pervasive so as to alter the terms and conditions of employment? Here’s my point of view.

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

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HOSTILE WORK ENVIRONMENT (WA STATE): THE PRIMA FACIE CASE

“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).

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)).

criteria COURTS USE to determinE WHETHER harassment affects terms or conditions of employment

The Washington State “Court of Appeals has adopted [the following] criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment …:

[a] the frequency and severity of the discriminatory conduct;

[b] whether it is physically threatening or humiliating, or a mere offensive utterance; and

[c] whether it unreasonably interferes with an employee’s work performance.'”

Blackburn v. Department of Social and Health Services*, 186 Wn.2d 250, 261 n.4 (Wash. 2016) (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc.*, 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))) (second alteration in original) (paragraph formatting and emphasis added).

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

WLAD: Imputing Harassment to Employers*

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January 14, 2025January 14, 2025

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 and hyperlinks 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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January 12, 2025January 30, 2025

Suing Local Government: The Tort-Claim Filing Statute

Under Washington State laws, what are the requirements of the tort-claim filing statute when pursuing claims against local government? Here’s my point of view.

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SUING LOCAL GOVERNMENT — TORTIOUS CONDUCT OF LOCAL GOVERNMENT ENTITIES AND THEIR AGENTS

In Washington State, the process and requirements for individuals to initiate legal proceedings against local (as opposed to state) government entities or their subdivisions are dictated by RCW 4.96*, known as the “Actions Against Political Subdivisions, Municipal and Quasi-Municipal Corporations” statute — or, simply, the “local government tort claim filing statute.”

This legislation details the procedures for filing claims against political subdivisions and municipal bodies–such as counties, cities, towns, special districts, municipal corporations as defined in RCW 39.50.010*, quasi-municipal corporations, any joint municipal utility services authorities, any entities created by public agencies under RCW 39.34.030*, or public hospitals–ensuring that these actions are handled with transparency and fairness while safeguarding public entities from excessive legal challenges.

THE RELEVANT LAW — RCW 4.96.010

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* (emphasis and hyperlinks added).

Presentment and filing requirements — RCW 4.96.020

The associated “Presentment and Filing” section (RCW 4.96.020*) outlines the following procedures for filing claims for damages against local governmental entities, their officers, employees, or volunteers acting in an official capacity, specifically in cases involving tortious conduct.

1. Applicability of the Law — RCW 4.96.020(1)-(2)*:

The provisions apply to all claims for damages against local governmental entities and their officials. The governing body of each entity must appoint an agent to receive claims for damages, and this agent’s identity and contact information must be recorded with the county auditor.

2. Claim Presentment — RCW 4.96.020(2)*:

Claims must be submitted to the designated agent within the applicable statute of limitations. Claims are considered presented when they are delivered in person or “received by the agent by regular mail, registered mail, or certified mail, with return receipt requested, to the agent or other person designated to accept delivery at the agent’s office.” Id. If a local government entity fails to meet these requirements, it forfeits the right to raise certain defenses.

3. Claim Form Requirements — RCW 4.96.020(3)(a)-(b)*:

Starting from July 26, 2009, claims must be filed using a standard tort claim form, which is available on the Department of Enterprise Services’ (Office of Risk Management) website, except as allowed under (c) of this subsection.. The form must include:

(a) The claimant’s name, contact information, and date of birth.

(b) A description of the incident, injury, and the circumstances surrounding it.

(c) Details such as the time and place of the incident, names of involved individuals, and the amount of damages claimed.

(d) The claimant’s current residence at the time the claim arose and when the claim is presented.

The claim must be signed by the claimant or their authorized representative.

4. Availability of Forms and Instructions — RCW 4.96.020(3)(c), (e)*:

Local entities are required to make the standard form and instructions available and the name, address, and business hours of the agent of the local governmental entity.

“If a local governmental entity chooses to also make available its own tort claim form in lieu of the standard tort claim form, the form:

(i) May require additional information beyond what is specified under this section, but the local governmental entity may not deny a claim because of the claimant’s failure to provide that additional information[.]

(ii) Must not require the claimant’s social security number; and

(iii) Must include instructions on how the form is to be presented and the name, address, and business hours of the agent of the local governmental entity appointed to receive the claim.

RCW 4.96.020(c)*. “Presenting either the standard tort claim form or the local government tort claim form satisfies the requirements of this chapter*.” RCW 4.96.020(e)* (hyperlink added).

5. Waiver for Incorrect Forms — RCW 4.96.020(3)(d)*:

If the local entity’s form does not comply with the requirements or lists the wrong agent, the entity waives any defense related to those issues, including improper claim presentation or missing information.

6. Damages Statement — RCW 4.96.020(3)(f)*:

The amount of damages specified on the claim form is not admissible at trial.

7. Waiting Period Before Filing Suit — RCW 4.96.020(4)*:

A claimant cannot file a lawsuit for tortious conduct against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, until at least 60 calendar days after properly presenting the claim to the agent. During this 60-day period, the statute of limitations for filing a lawsuit is tolled (i.e., suspended). If a lawsuit is filed within five court days after this period, it is considered to have been filed on the first day after the 60-day waiting period.

8. Liberal Construction — RCW 4.96.020(5)*:

“With respect to the content of claims under this section and all procedural requirements in this section, this section must be liberally construed so that substantial compliance will be deemed satisfactory.” Id.

CONCLUSION

In Washington State, the local government tort-claim filing statute (i.e., RCW 4.96*) provides a structured process for filing tort claims against local governments in Washington State, with clear instructions regarding the necessary forms, deadlines, and requirements. It emphasizes a liberal approach to compliance to ensure that valid claims are not dismissed due to minor procedural issues.

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» The Local Government Tort-Claim Filing Statute: Guiding Policies

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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 9, 2025January 9, 2025

Employment Law 101: Definition of Circumstantial Evidence (WA State)

Under Washington State laws, what is the definition of circumstantial evidence? Here’s my point of view.

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CIRCUMSTANTIAL EVIDENCE (WA STATE)

The concept of circumstantial evidence plays an important role in establishing claims and defenses in workplace disputes. While many people are familiar with direct evidence–such as eyewitness testimony or a signed contract–circumstantial evidence can often be just as important in shaping the outcome of a case. In the context of Washington State employment law, understanding what circumstantial evidence is and how it is applied can be essential for both employers and employees navigating disputes.

general definition

Circumstantial evidence is defined as follows:

1. Evidence based on inference and not on personal knowledge or observation. — Also termed indirect evidence; oblique evidence. … 2. All evidence that is not given by eyewitness testimony.

Black’s Law Dictionary 595 (Deluxe 8th ed. 2004) (hyperlink added). Thus, circumstantial evidence refers to evidence that indirectly supports a fact or conclusion by inferring its existence from other facts or circumstances. Unlike direct evidence, which provides straightforward proof of a claim (e.g., a video recording of an event), circumstantial evidence relies on a chain of inferences that help establish a fact or raise a presumption about an event or situation.

circumstantial evidence in employment law

In Washington State, as in many other jurisdictions, circumstantial evidence is commonly used in employment law cases to support claims of wrongful termination, discrimination, retaliation, and other workplace-related issues. In the absence of direct evidence, circumstantial evidence can be pivotal in proving or disproving an employer‘s or employee‘s allegations.

example

For example, in cases of alleged wrongful termination, an employee might not have direct evidence (such as a text message explicitly stating the basis for termination) but can offer circumstantial evidence in support of their claim. This could include evidence such as a history of discriminatory comments, a pattern of different treatment between employees of different races, or the timing of the termination shortly after the employee filed a discrimination complaint — NOTE: these are only a few examples of circumstantial evidence that do not exhaust all possibilities or protected classes.

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

» Proving Discrimination: The Direct-Evidence Method

» The McDonnell Douglas Burden-Shifting Framework*

» Using Circumstantial Evidence to Prove Employment Discrimination

CITATION TO UNPUBLISHED OPINIONS — GR 14.1

What Are Unpublished Opinions?

Can They Be Cited?

What About Opinions from Other States?

Washington Courts Using Unpublished Opinions

One Last Requirement

FINAL THOUGHTS

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WSHRC: PRACTICE AND PROCEDURE: SANCTIONS

OVERVIEW OF WAC 162-08-015

1. Sanctions in Administrative Hearings

2. Sanctions in Other Proceedings

IMPORTANCE AND IMPACT

FINAL THOUGHTS

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What is constructive termination in WA State?

answer:

THE TERM “DELIBERATELY”

INTOLERABLE WORKING CONDITIONS

THE QUESTION TO BE ANSWERED (OBJECTIVE STANDARD)

take our constructive discharge test

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CIVIL LIABILITY: REMEDIES

CRIMINAL CULPABILITY

CONCLUSION

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WSHRC: FROM COMPLAINT TO CONCLUSION

I. Filing a Complaint with the WSHRC

1. Initiating the Process:

NOTE: WSHRC Jurisdictional Criteria

2. Submission of Intake Questionnaire:

3. Response to Written Charge:

4. Assignment to Investigator:

II. Responsibilities of Employers Upon Receiving Notice

1. Timely Response:

2. Position Statement:

3. Documentation:

4. Witness Information:

III. Conducting the Investigation

1. Neutral Fact-Finding:

2. Alternate Dispute Resolution:

IV. Burden of Proof

1. Complainant’s Obligation:

2. Respondent’s Response:

3. Additional Evidence:

4. Standard of Proof:

V. Conclusion of the Investigation

1. Recommendation to Commissioners:

2. NO FINDING OF DISCRIMINATION

3. Finding of Discrimination:

CONCLUSION

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

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

DISCRIMINATION AND PROTECTED CLASSES

RETALIATION

REASONABLE ACCOMMODATIONS

SCOPE OF TITLE VII

TITLE VII DEFINITION OF “DEMONSTRATES”

ENFORCEMENT

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PRESUMPTION OF ACQUIESCENCE

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WSHRC: ORGANIZATION AND OPERATIONS

(1) Membership

(2) Meetings

(3) Quorum

(4) Executive director

(5) Authority and duty

(6) Offices

(7) Where to obtain information

(8) Where to make submissions or requests

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