LAW OFFICE OF GREGORY A. WILLIAMS

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.

(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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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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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.

July 23, 2023April 23, 2025

WSHRC: Bona Fide Occupational Qualification

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning bona fide occupational qualification? 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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WSHRC — EMPLOYMENT — BONA FIDE OCCUPATIONAL QUALIFICATION

In Washington State, discrimination in employment based on protected characteristics is prohibited under the Washington Law Against Discrimination. However, the Washington Administrative Code (WAC 162-16-240) recognizes a narrow exception to this rule: the bona fide occupational qualification (BFOQ).

A BFOQ allows an employer to consider a person’s protected status only when it is genuinely necessary to the job. This isn’t a loophole for bias—it’s a specific, limited carve-out. The Washington State Human Rights Commission emphasizes that BFOQs must be applied narrowly and thoughtfully.

THE BLACK LETTER LAW: WAC 162-16-240

The relevant provision is WAC 162-16-240*, and it states as follows:

WAC 162-16-240
Bona fide occupational qualification.

Under the law against discrimination, there is an exception to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of protected status; that is if a bona fide occupational qualification (BFOQ) applies. The commission believes that the BFOQ exception should be applied narrowly to jobs for which a particular quality of protected status will be essential to or will contribute to the accomplishment of the purposes of the job. The following examples illustrate how the commission applies BFOQs:

(1) Where it is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress) or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter) the commission will consider protected status to be a BFOQ.

(2) A 911 emergency response service needs operators who are bilingual in English and Spanish. The job qualification should be spoken language competency, not national origin.

(3) An employer refuses to consider a person with a disability for a receptionist position on the basis that the person’s disability “would make customers and other coworkers uncomfortable.” This is not a valid BFOQ.

(4) A person with a disability applies for promotion to a position at a different site within the firm. The firm does not promote the person because doing so would compel the firm to install an assistive device on equipment at that site to enable the person to properly perform the job. This is not a valid BFOQ.

WAC 162-16-240* (emphasis and hyperlinks added).

What Qualifies as a BFOQ?

Thus, some key examples clarify when a BFOQ may or may not apply:

• Authenticity or Privacy: A protected status may be essential when authenticity matters—such as hiring an actor for a culturally specific role—or when maintaining privacy is necessary, like hiring locker room attendants or intimate apparel fitters.

• Skill Over Status: Requiring bilingual ability for a 911 operator position is acceptable. However, the requirement should be based on language skills, not the applicant’s ethnic background.

• Discomfort Isn’t a Defense: Employers cannot reject a person with a disability simply because coworkers or customers might feel “uncomfortable.” That’s not a valid BFOQ.

• Accommodation is Not Optional: Refusing to promote someone with a disability to avoid the cost of accommodations—like assistive equipment—also fails to meet the BFOQ standard.

CONCLUSION

The BFOQ rule exists to ensure that only in rare, well-justified cases can an employer factor in protected status. Washington law draws a clear line between legitimate job requirements and discriminatory practices disguised as necessity.

Employers should tread carefully—and consult legal guidance—before invoking a BFOQ. Misusing this exception can lead to serious legal consequences and undermine workplace equity.

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

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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

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)

» Negligent Retention (WA State)

» The Tort of Battery

» The Tort of Outrage

» 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 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: Depositions

» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Admission

» Employment Law 101: Requests for Production

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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).

_____

* (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

“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).

SUMMARY JUDGMENT: CIVIL CASES

SELF-SERVING DECLARATIONS (WA STATE)

CONCLUSION

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WSHRC — EMPLOYMENT — BONA FIDE OCCUPATIONAL QUALIFICATION

THE BLACK LETTER LAW: WAC 162-16-240

What Qualifies as a BFOQ?

CONCLUSION

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THE PUBLIC DUTY DOCTRINE

EXCEPTION TO THE DOCTRINE (SPECIAL RELATIONSHIPS)

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WASHINGTON LAW AGAINST DISCRIMINATION

DEFINITION OF DISABILITY

OBESITY ALWAYS QUALIFIES AS AN IMPAIRMENT

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

CONCLUSION

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VICARIOUS LIABILITY

THE PROPER INQUIRY

DEFEATING A CLAIM OF VICARIOUS LIBAILITY

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NONCOMPETITION COVENANTS (WA STATE)

WHEN VOID AND UNENFORCEABLE

INDEPENDENT CONTRACTORS

UNENFORCEABLE COVENANT PROVISIONS

OTHER SECTIONS OF THE LAW

DEFINITIONS

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

WRITTEN RECORDS

REBUTTING THE PRESUMPTION OF GOOD FAITH

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Introduction: Discovery (WA State)

Objectives of Discovery

1. Transparent Disclosure:

2. Preparation for Trial:

3. Facilitating Settlement Negotiations:

Significance of Discovery

1. Equity and Fairness:

2. Operational Efficiency:

3. Catalyzing Settlements:

4. Enhanced Trial Preparedness:

Primary Methods

1. Interrogatories:

2. Requests for Production of Documents:

3. Depositions:

4. Requests for Admission:

5. Subpoenas:

Conclusion

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

STATUTE OF LIMITATIONS

Definition

THE WLAD Statute of Limitations (3 years)

FURTHER SUPPORT

WARNING

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WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

STATUTE OF LIMITATIONS

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

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