LAW OFFICE OF GREGORY A. WILLIAMS

December 15, 2022October 21, 2024

Negligent Retention (WA State)

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

(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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NEGLIGENT RETENTION IN WASHINGTON STATE

To successfully litigate an employment-based negligence claim, the plaintiff must establish the basic elements of negligence: duty; breach of duty; causation; and damages. The theory of negligent retention is a tort. A tort is a civil wrong, other than breach of contract, entitling the victim to remedies typically in the form of damages. According to the Washington State Supreme Court:

Negligent retention consists of … retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before … retaining him.

Anderson v. Soap Lake Sch. Dist., 423 P.3d 197, 206 (Wash. 2018) (citing Peck v. Siau, 65 Wash. App. 285, 288, 827 P.2d 1108 (1992)) (alterations in original) (internal citation and quotation marks omitted).

NEGLIGENT RETENTION VS. NEGLIGENT HIRING

Negligent hiring is also a Washington State tort. According to the Anderson Court:

The difference between negligent hiring and negligent retention is timing. Negligent hiring occurs at the time of hiring, while negligent retention occurs during the course of employment.

Id. (internal citation omitted) (emphasis added).

CONCLUSION

Negligent retention occurs when an employer either retains an employee with knowledge of the employee’s unfitness, or fails to use reasonable care to discover unfitness before retaining the employee.

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

» Negligent Hiring (WA State)

» Negligent Supervision (WA State)

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.

December 1, 2022October 21, 2024

EEOC: The Notice of Right to Sue

Under federal laws and regulations, what is the United States Equal Employment Opportunity Commission’s (EEOCs) Notice of Right to Sue? NOTE: This article addresses public and private employment and does not address federal government employees or applicants.

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THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

The EEOC is a federal agency “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. EEOC Website, https://www.eeoc.gov/overview (last visited 11/29/22).

eeoc functions

“The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.” Id. Accordingly, the EEOC has authority to perform several functions:

(1) To investigate charges of discrimination against employers who are covered by the law.

(2) To prevent discrimination before it occurs through outreach, education, and technical assistance programs.

(3) To provide leadership and guidance to federal agencies on all aspects of the federal government’s equal employment opportunity program.

Id. As part of its investigative function, the EEOC is responsible for issuing the Notice of Right to Sue.

THE 90-DAY NOTICE OF RIGHT TO SUE

Charge Filing

The claimant must first file a charge with the EEOC if the claimant plans “to file a lawsuit under federal law alleging discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information, or retaliation, … (except for lawsuits under the Equal Pay Act, see below).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). I will explain certain exceptions later in this article.

Notice of Right to Sue

The EEOC Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See id. The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id.

90-Day Limitation

When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. Id. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Federal Government Employees and Applicants

This article does not address federal government employees or applicants. “The procedures for filing a complaint of discrimination against a federal government agency differ from those for filing a charge against a private or public employer.” Id. To learn more, visit the EEOC Website page: Overview Of Federal Sector EEO Complaint Process.

EXCEPTIONS WHEN FILING A LAWSUIT

Age Discrimination Lawsuits (ADEA)

“If you plan to file an age discrimination lawsuit, you must have filed a charge but you don’t need a Notice of Right to Sue to file a lawsuit in court. You can file a lawsuit in court any time after 60 days have passed from the day you filed your charge (but no later than 90 days after you receive notice that our investigation is concluded).” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

Equal Pay Lawsuits (EPA)

“If you plan to file a lawsuit under the Equal Pay Act, you don’t have to file a charge or obtain a Notice of Right to Sue before filing. Rather, you can go directly to court, provided you file your suit within two years from the day the pay discrimination took place (3 years if the discrimination was willful).” Id.

Filing a Lawsuit Before Investigation is Completed

“If you want to file a lawsuit before … [the EEOC has] finished … [their] investigation, you can request a Notice of Right to Sue.” Id.

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HOW TO REQUEST A NOTICE OF RIGHT TO SUE

There are a few ways to request a Notice of Right to Sue depending on your circumstances. “If you have registered in EEOC’s Public Portal, you can submit your request by logging in to your charge account and uploading your request. If you don’t have an online charge account, send your request for a Notice of Right to Sue to the EEOC office responsible for investigating your charge and include your EEOC charge number and the names of the parties.” U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22).

In any event, the EEOC has time limitations in fulfilling requests for Notices of Right to Sue.

Before 180 Days Have Passed

Before 180 days have passed from the date the claimant’s charge was filed, the EEOC will give the claimant the notice only if the EEOC will be unable to complete their investigation within 180 days. See id. According to the EEOC, “If you want the EEOC to continue investigating your charge, don’t request a Notice of Right to Sue.” Id.

After 180 Days Have Passed

After 180 days have passed from the date the claimant’s charge was filed, the EEOC is required by law to give the claimant the notice upon their request. See id.

CONCLUSION

The EEOCs Notice of Right to Sue gives the claimant permission to file a lawsuit in federal or state court based on certain federal laws. See U.S. EEOC Website, https://www.eeoc.gov/filing-lawsuit (last visited 11/29/22). The EEOC will provide the claimant a Notice of Right to Sue when it closes its investigation. See id. In addition, claimants can request a Notice of Right to Sue from the EEOC office investigating the charge if the claimant seeks to file a lawsuit in court before the investigation is completed. See id. When the claimant receives a Notice of Right to Sue, the claimant must file an associated lawsuit within 90 days. “This deadline is set by law. If you don’t file in time, you may be prevented from going forward with your lawsuit.” Id.

The reader is strongly encouraged to seek legal counsel when first considering claims of employment discrimination.

Using Circumstantial Evidence to Prove Employment Discrimination

As an employment attorney in Washington, I often converse with employment discrimination victims that believe their cases are weak, because they lack direct evidence. They’re unaware that using circumstantial evidence to prove employment discrimination is a common litigation practice that can sometimes lead to successful outcomes.

Under the Washington Law Against Discrimination (WLAD), may an employment discrimination victim rely on circumstantial, indirect, and inferential evidence to prove employment discrimination? Here’s my point of view.

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNFAIR PRACTICES OF EMPLOYERS

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

It is an unfair practice for any employer:

[REFUSE TO HIRE]

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

[dISCHARGE OR BAR FROM EMPLOYMENT]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

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

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

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

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added). NOTE: WLAD rights are based upon protected classes and may be litigated based upon direct and/or circumstantial evidence.

USING CIRCUMSTANTIAL, INDIRECT EVIDENCE TO PROVE EMPLOYMENT DISCRIMINATION

“Because direct evidence of discriminatory intent is rare, an employee may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action.” Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*, 500 P.3d 203, 211 (Wash. App. 2021) (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County*, 189 Wash.2d 516, 526, 404 P.3d 464 (2017)) (internal quotation marks omitted) (hyperlinks added).

“Where the employee lacks direct evidence, Washington has adopted the three step evidentiary burden shifting framework* announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) for discriminatory discharge claims.” Id. (citing Scrivener v. Clark Coll.*, 181 Wash.2d 439, 445-46, 334 P.3d 541 (2014)) (hyperlinks added). Although the framework* was originally applied to solely discriminatory-discharge claims, courts have expanded its scope to include other theories of employment discrimination (e.g., <disparate treatment>, <disparate impact>, <hostile work environment>, <unlawful retaliation>, etc.).

(*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.)

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**THE MCDONNELL DOUGLAS EVIDENTIARY BURDEN-SHIFTING FRAMEWORK**

The McDonnell Douglas Evidentiary Burden-Shifting Framework* has three steps:

STEP 1 – prima facie case

“First, [under the burden-shifting framework,] an employee must make a prima facie case …[.]” Crabtree*, 500 P.3d at 211 (Wash. App. 2021) (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464 (2017)) (hyperlinks added). “Where the employee establishes a prima facie case, a rebuttable presumption of discrimination exists. Id. at 211-12 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464).

STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON

“Second, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the … [adverse employment action].” See id. at 212 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (hyperlink added). “The employer is not required to persuade the court that it actually was motivated by the nondiscriminatory reason, the employer need only show that the employer’s evidence, if taken as true would permit the conclusion that there was a nondiscriminatory reason.” Id. (citing Mikkelsen*, 189 Wash.2d at 533, 404 P.3d 464).

STEP 3 – PRETEXT

“Third, if the employer meets this burden, the employee must produce sufficient evidence showing that the employer’s alleged nondiscriminatory reason for the discharge was a pretext*.” Crabtree*, 500 P.3d at 212 (citing Mikkelsen*, 189 Wash.2d at 527, 404 P.3d 464) (hyperlinks added).

(*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.)

WLAD REMEDIES

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

CONCLUSION

Under the Washington Law Against Discrimination, I believe employment-discrimination plaintiffs may rely on circumstantial, indirect, and inferential evidence to prove employment discrimination. This is primarily because direct evidence of discriminatory intent is rare.

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.

November 17, 2022October 21, 2024

Employment-Discrimination Hotlines & Unlawful Retaliation

Employee-Discrimination Hotlines: Use Caution

Employees in Washington State that use employment-discrimination hotlines to submit complaints to their employers sometimes experience consequent retaliation by their employers. It’s not uncommon. Such employees who thereafter pursue associated claims of unlawful retaliation against their employers soon realize the importance of their hotline complaints — particularly, the wording.

Under Washington State unlawful-retaliation laws, should employees reporting employment discrimination via employment-discrimination hotlines specify their protected status (or statuses), when they might rely on those reports to pursue prospective, associated claims of unlawful-retaliation against their employers? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status*.

It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

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

UNLAWFUL RETALIATION (WA STATE)

“The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 753 (Div. 2 2013) (citing RCW 49.60.210) (hyperlink added).

THE PRIMA FACIE CASE

“To establish a prima facie* retaliation case, a plaintiff must show that[:]

(1) he engaged in statutorily protected activity,

(2) his employer took an adverse employment action against him, and

(3) there is a causal link between the activity and the adverse action.

Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added) (emphasis added). The first element–statutorily protected activity–is at issue for purposes of this article.

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

ELEMENT #1: STUTORILY PROTECTED ACTIVITY

One way “[a]n employee engages in WLAD-protected activity [is] when … [the employee] opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

However, “[a] general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Alonso, 178 Wn.App. at 754 (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)) (emphasis and hyperlink added).

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EXAMPLE: ALONSO v. QWEST COMMUNICATIONS COMPANY, LLC (EMPLOYMENT-DISCRIMINATION HOTLINES)

In Alonso v. Qwest Communications Company, LLC, “Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on Alonso’s combat-veteran, disabled-person, and Mexican-American statuses.]” Id. at 734. “[T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.” Id. “Alonso appeal[ed], arguing that he provided sufficient evidence to establish [a] prima facie discrimination claim[ ] for[, inter alia,] … unlawful retaliation.” Id.

While working for Qwest, Alonso “used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor and another employee.” Id. at 754 (emphasis added). However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. (emphasis and hyperlink added).

Accordingly, “[t]he Court [of Appeals] initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.” Id. The court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not phone the hotline to report discrimination against him based on a protected class. Id. at 754 (hyperlink added). Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

CONCLUSION

Under Washington State unlawful-retaliation laws, I believe employees electing to report employment discrimination–via employer hotlines–should seriously consider specifying their relevant protected status(es) if they might rely on those reports to prosecute associated, prospective unlawful-retaliation claims. IMPORTANT: In any event, NO content in this article, regardless of date, should ever be used as a substitute for direct legal advice from your attorney.

Unlawful Retaliation: The Causal Link

Under the Washington Law Against Discrimination, how does one prove the “causal-link” element when pursuing a claim of unlawful retaliation? Here’s my point of view.

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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] an employee must show three things:

(1) the employee took a statutorily protected action,

(2) the employee suffered an adverse employment action, and

(3) a causal link between the employee’s protected activity and the adverse employment action.

Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

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

ELEMENT #3: PROVING THE CAUSAL LINK

“Ordinarily, proof of the employer’s motivation must be shown by circumstantial evidence because the employer is not apt to announce retaliation as his motive.” Kahn v. Salerno, 90 Wn. App. 110, 130-31, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998) (internal citations and quotation marks omitted). Accordingly, there are two typical methods of proving a causal link between the employee’s protected activity and the adverse employment action.

METHOD #1 (Proximity & Performance): “Proximity in time between the adverse action and the protected activity, coupled with evidence of satisfactory work performance and supervisory evaluations suggests an improper motive.” Id. (internal citations omitted).

METHOD #2 (Knowledge & Discharge): “[I]f the employee establishes that he or she participated in an opposition activity, the employer knew of the opposition activity, and he or she was discharged, then a rebuttable presumption is created in favor of the employee that precludes … [the court] from dismissing the employee’s case.” Id. (internal citation omitted).

Fair Employment Practice Agencies

Under the United States Equal Employment Opportunity Commission laws and regulations, what are Fair Employment Practice Agencies? Here’s my point of view.

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THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The United States Equal Employment Opportunity Commission (hereinafter, “EEOC”) is an independent federal agency, headquartered in Washington, D.C., that maintains 53 field offices serving the entire country. It’s charged with “enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.” See Official EEOC Website, https://www.eeoc.gov/overview (last accessed 11/2/22).

The EEOC “laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits”; those same laws also cover most labor unions and employment agencies. See id.

DEFINITION OF EMPLOYER

Generally, employers with at least 15 employees (20 employees in age discrimination cases) are subject to EEOC laws, however there are a few exceptions. For example, the EEOC is responsible for enforcing, inter alia, Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”); under Title VIIs definition of employer, not all are subject to its reach. The relevant provision states as follows:

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include[:]

(1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or

(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

42 U.S.C. § 2000e(b)(Definitions) (NOTE: the EEOC also enforces other laws beyond Title VII; the preceding was only one example) (emphasis added).

FAIR EMPLOYMENT PRACTICES AGENCIES (FEPAs)

The term Fair Employment Practices Agency or FEPA is a term coined by the EEOC. They are state and local government agencies charged with enforcing their own jurisdictional laws prohibiting discrimination; and their laws are similar to those enforced by the EEOC. However, it’s important to note:

In some cases, these agencies enforce laws that offer greater protection to workers, such as protection from discrimination because you are married or unmarried, have children or because of your sexual orientation. There also may be different deadlines for filing a charge, different standards for determining whether you are protected by these laws, and different types of relief available to victims of discrimination.

See Official EEOC Website, https://www.eeoc.gov/fair-employment-practices-agencies-fepas-and-dual-filing (last accessed 11/2/22).

Job Applicants and Criminal Records (WA State)

Under Washington State law, may an employer use criminal-records information in job hiring? Here’s my point of view.

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DEFINITIONS

For purposes of this article only, the following definitions apply unless the context clearly requires otherwise:

…

(1) “Criminal record” includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.

(2) “Employer” includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.

(3) “Otherwise qualified” means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

RCW 49.94.005.

THE WASHINGTON FAIR CHANCE ACT — RCW 49.94

In 2018, the Washington State Legislature passed the Washington Fair Chance Act (Act), RCW Chapter 49.94. The Act is designed “to protect job applicants with a criminal record so they may fairly compete for job opportunities for which they are otherwise qualified.” See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022). It contains several sections, and the primary section follows:

RCW 49.94.010

Inquiries about criminal records—Timing—Advertisements—Exceptions.

(1) An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.

(2) An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state “no felons,” “no criminal background,” or otherwise convey similar messages are prohibited.

(3) An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

(4) This section does not apply to:

(a) Any employer hiring a person who will or may have unsupervised access to children under the age of eighteen, a vulnerable adult as defined in chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060;

(b) Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;

(c) Employment by a general or limited authority Washington law enforcement agency as defined in RCW 10.93.020 or by a criminal justice agency as defined in RCW 10.97.030(5)(b);

(d) An employer seeking a nonemployee volunteer; or

(e) Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the securities and exchange act of 1934, 15 U.S.C. 78c(a)(26).

RCW 49.94.010 (emphasis added) (hyperlinks in original).

LIMITATIONS

The Act also contains several significant limitations concerning collective bargaining agreements, conflict of laws, accommodations/job modifications, baselines, and private right of actions, as follows:

RCW 49.94.020

Limitations on application of chapter.

(1) This chapter may not be construed to interfere with, impede, or in any way diminish any provision in a collective bargaining agreement or the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages, standards, and conditions of employment.

(2) This chapter may not be interpreted or applied to diminish or conflict with any requirements of state or federal law, including Title VII of the civil rights act of 1964; the federal fair credit reporting act, 15 U.S.C. Sec. 1681; the Washington state fair credit reporting act, chapter 19.182 RCW; and state laws regarding unsupervised access to children or vulnerable persons, RCW 43.43.830 through 43.43.845.

(3) This chapter may not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.

(4) This chapter may not be construed to discourage or prohibit an employer from adopting employment policies that are more protective of employees and job applicants than the requirements of this chapter.

(5) This chapter may not be construed to interfere with local government laws that provide additional protections to applicants or employees with criminal records, nor does it prohibit local governments from enacting greater protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than this chapter conflict with this chapter and may not be enforced.

(6) This chapter may not be construed to create a private right of action to seek damages or remedies of any kind. The exclusive remedy available under this chapter is enforcement described in RCW 49.94.030. This chapter does not create any additional liability for employers beyond that enumerated in this chapter.

RCW 49.94.020.

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ENFORCEMENT & PENALTIES

The Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. The AGs enforcement powers (including penalties) follow:

RCW 49.94.030

Attorney general’s enforcement powers—Penalties.

(1) The state attorney general’s office shall enforce this chapter. Its powers to enforce this chapter include the authority to:

(a) Investigate violations of this chapter on its own initiative;

(b) Investigate violations of this chapter in response to complaints and seek remedial relief for the complainant;

(c) Educate the public about how to comply with this chapter;
(d) Issue written civil investigative demands for pertinent documents, answers to written interrogatories, or oral testimony as required to enforce this chapter;

(e) Adopt rules implementing this chapter including rules specifying applicable penalties; and

(f) Pursue administrative sanctions or a lawsuit in the courts for penalties, costs, and attorneys’ fees.

(2) In exercising its powers, the attorney general’s office shall utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows:

A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.

RCW 49.94.030.

CONFLICTS WITH FEDERAL REQUIREMENTS

Lastly, the Act contains a provision addressing potential conflicts with federal requirements when federal funds are involved. The relevant provision follows:

RCW 49.94.900

Conflict with federal requirements—2018 c 38.

If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

RCW 49.94.900.

THE COMPLAINT PROCESS

As mentioned above, the Washington State Office of the Attorney General (AG) is solely responsible for enforcing the Washington Fair Chance Act. Accordingly, the AG Civil Rights Division accepts complaints that a covered employer has used criminal-record information to exclude an applicant from a job opportunity before determining whether the applicant is otherwise qualified for the job. Complainants may contact the AG Civil Rights Division at either fairchancejobs@atg.wa.gov or by leaving a message on their toll-free line at (833) 660-4877. Complainants may also submit a complaint using the AGs online form and a staff member will follow up. See Washington State Office of the Attorney General, https://www.atg.wa.gov/fair-chance-act (last visited Oct. 13, 2022) (hyperlink in original).

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September 29, 2022October 21, 2024

Failure to Mitigate Damages (WA State)

Under Washington State law, what is the failure-to-mitigate-damages affirmative defense and how is it typically applied in Washington State employment-discrimination cases? Here’s my point of view.

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MITIGATING DAMAGES

In Washington State, plaintiffs have “a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (7th ed.).

AFFIRMATIVE DEFENSES

An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all allegations in the complaint are true. Blacks Law Dictionary, p. 451, “defense (affirmative defense)” (Rev 8th Ed. 2004); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); CR 8(c).

Defendant-employers usually assert the affirmative defense of “failure to mitigate damages” against plaintiff-employees during litigation of employment-discrimination claims. This particular defense is most often asserted when the plaintiff-employee challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire. 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (7th ed.).

FAILURE TO MITIGATE DAMAGES

In an employment-discrimination suit, the burden of proving a failure to mitigate damages is on the employer, and the employer must show the following to satisfy its burden:

1. There were openings in comparable positions available for plaintiff elsewhere after defendant terminated or refused to hire plaintiff;

2. The plaintiff failed to use reasonable care and diligence in seeking those openings;

3. The amount by which damages would have been reduced if the plaintiff had used reasonable care and diligence in seeking those openings.

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (6th ed.).

Juries are typically instructed that they should take into account the characteristics of the plaintiff and the job market in evaluating the reasonableness of the plaintiff’s efforts to mitigate damages. Id. Importantly, the plaintiff’s failure to make an ongoing, concerted effort to find comparable employment does not preclude a back pay award. Henningsen v. Worldcom, Inc., 9 P.3d 948, 102 Wn.App. 828 (Wash.App. Div. 1 2000).

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

For example, in Henningsen v. Worldcom, Inc., a plaintiff-employee (Henningsen) brought a sex discrimination lawsuit against her defendant-employer (Worldcom), and the trial court (bench trial) entered judgment in Henningsen’s favor; the award included full back pay. Id.

Worldcom then appealed alleging, inter alia, the trial court erred, because Henningsen failed to mitigate her damages. Id. Worldcom claimed that “there was evidence that she traveled extensively, had a baby, married the baby’s father, and then proceeded to assist him in the management of his own business after she left Worldcom.” Id. (internal quotations omitted).

The Court found that there was “evidence that Henningsen failed to make an ongoing, concerted effort to find comparable employment” and that the trial court even “expressed some concerns about [Henningsen’s] underemployment[.]” Id. (first alteration in original) (internal quotations omitted). But the Court also found that there was “evidence that she worked on a limited basis for her husband’s business and tried to start a home business.” Id.

Ultimately, the Court concluded that “Worldcom presented no evidence that employment comparable to her position at Worldcom was in fact available” and, therefore, ruled that “substantial evidence support[ed] the trial court’s finding that Worldcom did not prove that Henningsen failed to mitigate her back pay damages.” Id. (internal quotations omitted).

Thus, in the case of Henningsen v. Worldcom, the issue of mitigation of damages was determined in favor of the employee as a result of the employer’s failure to satisfy the first element of the test—evidence that there were openings in comparable positions available for plaintiff elsewhere after defendant terminated (or refused to hire) plaintiff.

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September 8, 2022October 21, 2024

WA State Human Rights Commission Complaints

Under the Washington Law Against Discrimination (WLAD), who may file WA State Human Rights Commission (WSHRC) complaints? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

Under the WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy**); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower** status.

It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): COMPLAINTS

The Washington State Legislature established the WSHRC** in 1949 as “a state agency responsible for administering and enforcing the Washington Law Against Discrimination.” WSHRC Official Website, last accessed 9/8/22. One WSHRC power, inter alia, is the ability “to receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in … [the WLAD].” RCW 49.60.120(4) (emphasis added).

Investigations

“If the facts as stated in the complaint do not constitute an unfair practice under … [WLAD], a finding of no reasonable cause may be made without further investigation.” RCW 49.60.240(1)(a). However, “[i]f the facts as stated could constitute an unfair practice under … [WLAD], a full investigation and ascertainment of the facts shall be conducted.” Id.

Eliminating Unfair Practices

“If the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission‘s staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion.” RCW 49.60.240(3) (hyperlink added).

WHO MAY FILE A COMPLAINT WITH THE WSHRC

According to the WLAD, the following may file a complaint with the WSHRC:

(1) Who may file a complaint:

(a) Any person claiming to be aggrieved by an alleged unfair practice may, personally or by his or her attorney, make, sign, and file with the commission a complaint in writing under oath or by declaration. The complaint shall state the name of the person alleged to have committed the unfair practice and the particulars thereof, and contain such other information as may be required by the commission.

(b) Whenever it has reason to believe that any person has been engaged or is engaging in an unfair practice, the commission may issue a complaint.

(c) Any employer or principal whose employees, or agents, or any of them, refuse or threaten to refuse to comply with the provisions of this chapter may file with the commission a written complaint under oath or by declaration asking for assistance by conciliation or other remedial action.

RCW 49.60.230 (emphasis and hyperlinks added).

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» 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**

» WSHRC: From Complaint to Conclusion

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

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September 1, 2022October 21, 2024

Dismissal Based on Claim Splitting

Under Washington State law, what are the requirements for dismissal based on claim splitting? Here’s my point of view.

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CLAIM SPLITTING

The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.” Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment).

RES JUDICATA

The theory of dismissal based upon claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); see also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action) (hyperlink added). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred.

DISMISSAL BASED ON RES JUDICATA

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects:

(1) persons and parties;

(2) cause of action;

(3) subject matter; and

(4) quality of the persons for or against whom the claim is made.

Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted) (paragraph formatting added). This res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (Wash. 2004).

However, the Washington State Supreme Court has been abundantly clear: “[R]es judicata does not bar claims arising out of different causes of action, or intend to deny the litigant his or her day in court.” Id at 865, 93 P.3d 108 (hyperlink added). Ultimately, res judicata will not apply until there has been a final judicial judgment. See Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).

CONCLUSION

Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted).

NEGLIGENT RETENTION IN WASHINGTON STATE

NEGLIGENT RETENTION VS. NEGLIGENT HIRING

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNFAIR PRACTICES OF EMPLOYERS

[REFUSE TO HIRE]

[dISCHARGE OR BAR FROM EMPLOYMENT]

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

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

USING CIRCUMSTANTIAL, INDIRECT EVIDENCE TO PROVE EMPLOYMENT DISCRIMINATION

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STEP 1 – prima facie case

STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES

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EXAMPLE: ALONSO v. QWEST COMMUNICATIONS COMPANY, LLC (EMPLOYMENT-DISCRIMINATION HOTLINES)

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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

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DEFINITIONS

THE WASHINGTON FAIR CHANCE ACT — RCW 49.94

LIMITATIONS

ENFORCEMENT & PENALTIES

CONFLICTS WITH FEDERAL REQUIREMENTS

THE COMPLAINT PROCESS

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MITIGATING DAMAGES

AFFIRMATIVE DEFENSES

FAILURE TO MITIGATE DAMAGES

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): COMPLAINTS

Investigations

Eliminating Unfair Practices

WHO MAY FILE A COMPLAINT WITH THE WSHRC

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CLAIM SPLITTING

RES JUDICATA

DISMISSAL BASED ON RES JUDICATA

CONCLUSION

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**THE MCDONNELL DOUGLAS EVIDENTIARY BURDEN-SHIFTING FRAMEWORK**