Under the Washington Law Against Discrimination, what is the prima facie case for disparate impact discrimination? Here’s my point of view.
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DISPARATE IMPACT: THE PRIMA FACIE CASE
The Washington State Supreme Court “has held that the WLAD creates a cause of action for disparate impact.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 503, 325 P.3d 193 (Wash. 2014) (citing E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (1986)).
“To establish a prima facie case of disparate impact, the plaintiff must show that[:]
Id. at 503 (citing Oliver v. P. Nw. Bell Tel. Co., 106 Wn.2d 675, 679, & n.1, 724 P.2d 1003 (1986)) (internal citation omitted) (paragraph formatting added).
EXAMPLE: KUMAR v. GATE GOURMET, INC.
For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (i.e., a protected class falling under “creed“).
The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class, and the court found a viable claim of disparate impact discrimination–reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.
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Under Washington State canons of statutory construction, what is the rule regarding absence of implementing rules? Here’s my point of view.
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ABSENCE OF IMPLEMENTING RULES: COURTS GIVE EFFECT TO THE LEGISLATURE’S INTENT
In Washington State, agencies are often authorized to promulgate implementing rules for associated statutes. However, issues can arise where agencies fail to enact such rules.
“[W]ith or without recourse to implementing rules, … court[s] must interpret … [Washington statutes] so as to give effect to the legislature’s intent.” SeeKumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 496, 325 P.3d 193 (Wash. 2014).
WHEN SILENCE MEANS SOMETHING MORE
“It is certainly true that an administrative agency’s silence must be deemed significant where it admits of only one reasonable interpretation.” Id. at 494 (footnote omitted) (emphasis added).  For example, “where [an] agency historically engaged in comprehensive regulation of certain industry practices, the agency’s silence regarding an affirmative defense based on a violation of those regulations was deemed significant[.]” Id. at 514 n.20 (referencing S. P. Transp. Co. v. Commercial metals Co., 456 U.S. 336, 345, 102 S.Ct. 1815, 72 L.Ed. 2d 114 (1982)).
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Under Washington Law Against Discrimination (WLAD), RCW 49.60, what are protected classes for purposes of employment-discrimination claims? Here’s my point of view.
(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 LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT DISCRIMINATION
Under the WLAD, individuals have a right to be free from discrimination because of membership in a protected class. See RCW 49.60.030(1). This is recognized as and declared to be a civil right. Id. This right includes, but is not limited to the right to obtain and hold employment without discrimination. RCW 49.60.030(1)(a).
PROTECTED CLASSES
Accordingly, WLAD prohibits unfair employment practices against persons on account of any of the following protected classifications:
13. Unlawful Retaliation (it is an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit)
Any person deeming himself or herself injured by any act in violation of … [WLAD] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
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(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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WLAD: PLACES OF PUBLIC ACCOMMODATION
“The [Washington State] legislature has … directed … [the courts] to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation.” Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019) (citing RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (“quoting Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)”)). “The fundamental object of laws banning discrimination in public accommodations is to vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Id. at 855 (internal citations and quotation marks omitted).
FREEDOM FROM DISCRIMINATION–DECLARATION OF CIVIL RIGHTS (RCW 49.60.030(1)(B))
“Under RCW 49.60.030(1)(b), WLAD secures the right to ‘full enjoyment’ of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation ‘without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.'” Floeting, 192 Wn.2d at 852-53 (referencing RCW 49.60.040(14)) (hyperlink added).
MEANING OF “FULL ENJOYMENT”
Thus, “WLAD protects the customer’s ‘full enjoyment’ of the services and privileges offered in public accommodations.” Id. at 855 (citing RCW 49.60.030(1)(b)). “WLAD’s broad definition of ‘full enjoyment’ extends beyond denial of service to include liability for mistreatment that makes a person feel ‘not welcome, accepted, desired, or solicited.'” Id. (citing RCW 49.60.040(14)). “Denial or deprivation of services on the basis of one’s protected class is an affront to personal dignity.” Id. (internal citations omitted).
THE PRIMA FACIE CASE (FELL STANDARD (RCW 49.60.215))
“More than twenty years ago, … [the Washington State Supreme Court] set forth the standard for establishing a prima facie case of discrimination in a place of public accommodation under RCW 49.60.215.” Floeting, 192 Wn.2d at 853 (referencing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996)) (footnote omitted) (hyperlinks added).
“Fell established that in order to make a prima facie case of discrimination under RCW 49.60.215[ ][:]
a plaintiff must prove that
(1) the plaintiff is a member of a protected class,
(2) the defendant’s establishment is a place of public accommodation,
(3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and
(4) the plaintiff’s protected status was a substantial factor that caused the discrimination.
Floeting, 192 Wn.2d at 583-84 (citing Fell, 128 Wn.2d at 637) (internal citations omitted) (paragraph formatting, hyperlinks, and emphasis added).
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Under Washington State canons of statutory construction, what is the canon of presumed awareness? Here’s my point of view.
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THE CANON OF PRESUMED AWARENESS
Under the canon of presumed awareness: “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572, 581 (Wash. 1996) (Talmadge, J., concurring) (reasoning that the Washington State Legislature “clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992))).
In Dailey, the majority opinion essentially held that punitive damages are not available for employment discrimination under the Washington Law Against Discrimination, because the legislature has not expressly authorized them. Seeid at 574-75.
RELATED ARTICLE
Read our related article entitled Presumption of Acquiescence concerning a similar Washington State canon of statutory construction.
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(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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INDEPENDENT CONTRACTORS: GENDER
In Washington State, “an independent contractor may bring an action for discrimination in the making or performance of [a] contract for personal services.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182 (Wash. 2018). at 192 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 100-01, 922 P.2d 43 (1996)) (alterations in original) (internal quotation marks omitted).
Such discrimination claims may be “based on sex [or gender] ….” Marquis, 130 Wn.2d at 100-01.
THE PRIMA FACIE CASE
The relevant law concerning the prima facie case is found under Washington Law Against Discrimination, RCW 49.60. However, because “RCW 49.60.030 does not provide the criteria for a prima facie claim, … [the court] crafted criteria through case law[ ][:]
[T]he plaintiff in a sex discrimination case must show (1) membership in a protected class; (2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work; (3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex.
Specialty Asphalt, 191 Wn.2d at 204 n.6 (citing Marquis, 130 Wn.2d at 113-14) (alteration in original) (emphasis and hyperlink added).
TREATED DIFFERENTLY FROM SIMILARLY SITUATED MEMBERS OF THE OPPOSITE SEX BECAUSE OF GENDER
Moreover, “[t]he Marquis case provides three examples … [of how a plaintiff–in an action for discrimination in the making and performance of an employment contract–may show that the plaintiff was treated differently from similarly situated members of the opposite sex because of plaintiff’s gender]:
[ (1) ] [T]hat he or she was denied the position,
[ (2) ] was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or,
[ (3) ] once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.
Specialty Asphalt, 191 Wn.2d at 193 (internal citation omitted) (second-fifth alterations in original).
SUMMARY JUDGMENT: EVIDENCE
CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE
“To establish discriminatory action, plaintiffs may rely on circumstantial, indirect, and inferential evidence.” Id. at 192 (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017) (“assessing a claim under RCW 49.60.180“) (internal quotation marks omitted).
SUMMARY JUDGMENT IMPROPER
Summary judgment is improper “[w]hen the record contains reasonable but competing inferences of both discrimination and nondiscrimination[Â ][; in that case,] the trier of fact must determine the true motivation.” Id. at 191-92 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (citing Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 90, 272 P.3d 865 (2012))).
TOTALITY OF THE EVIDENCE
“[E]vidence should be taken together when considering whether there are ‘reasonable but competing inferences of both discrimination and nondiscrimination.'” See id. at 192 (internal citation and quotation marks omitted).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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ELEMENTS OF NEGLIGENT MISREPRESENTATION
In Washington State, negligent misrepresentation is a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.
“To prevail on … [a negligent misrepresentation claim], a plaintiff must prove, by clear, cogent, and convincing evidence that[:]
(1) the defendant supplied information for the guidance of others in their business transactions that was false,
(2) the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions,
(3) the defendant was negligent in obtaining or communicating the false information,
(4) the plaintiff relied on the false information,
(5) the plaintiff’s reliance was reasonable, and
(6) the false information proximately caused the plaintiff damages.
Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 196-97 (Wash. 2018) (citing Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007); Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002) (“Washington has adopted Restatement (Second) of Torts § 552 (Am. Law Inst. 1965)”)) (hyperlink added).
JUSTIFIABLE RELIANCE: AN ISSUE OF FACT
“Whether a party justifiably relied upon a misrepresentation is an issue of fact.” Specialty Asphalt, 191 Wn.2d at 198 (citing ESCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820, 828, 959 P.2d 651 (1998)).
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(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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DISPARATE TREATMENT
Disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)) (hyperlink added).
“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).
THE PRIMA FACE CASE: 2 METHODS
“A plaintiff can establish a prima facie case by either[:]
[1.] offering direct evidence of an employer’s discriminatory intent, or …
Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).
This article will address the direct evidence method.
THEÂ DIRECT EVIDENCE METHOD
Under the direct evidence method, “a plaintiff can establish a prima facie case by providing direct evidence that[:]
(1) the defendant employer acted with a discriminatory motive and
(2) the discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).
CONSIDERATIONS
» EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).
» SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).
Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).
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(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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UNLAWFUL RETALIATION
The Washington Law Against Discrimination, RCW 49.60, “prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734, 753 (Div. 2 2013) (citing RCW 49.60.210).
There are additional protections. The relevant law states as follows:
RCW 49.60.210
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.
(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.
(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.
“Violation of this provision supports a retaliation claim.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 570 (Div. 2 2020), review denied, 468 P.3d 616 (2020)Â (referencing Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018)).
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(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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HOSTILE WORK ENVIRONMENT (WA STATE)
Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).
THE PRIMA FACIE CASE (WA STATE)
In Washington, the term “hostile work environment” is synonymous with harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).
-ELEMENT (1):Â Harassment was unwelcome
“In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (2):Â The harassment was because of membership in a protected class
“The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.
-ELEMENT (3):Â The harassment affected the terms or conditions of employment
“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (4):Â The harassment is imputable to the employer
WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.”
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