Under Washington State law, may a constructive discharge be based on discrete and/or non-discrete acts? Here’s my point of view.
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Constructive discharge occurs when an employer deliberately creates working conditions so intolerable that a reasonable person in the shoes of the employee would feel compelled to resign.
A constructive discharge can be based on a discrete act (which can be discriminatory or retaliatory), and/or non-discrete acts, such as a hostile work environment. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998); see also Pennsylvania State Police v. Suder, 542 U.S. 129, 149 (2004) (a hostile-work environment claim is a “lesser included component” of the “graver claim of hostile-environment constructive discharge”).
Conclusion
Under Washington State law, a constructive discharge may be based on discrete and/or non-discrete acts.
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FAQ: What are the elements of Disparate Treatment in WA State?
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FAQ: What are the elements of Disparate Treatment in WA State?
See Marin v. King County*, 194 Wn.App. 795, 808-09 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016).
WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — DISPARATE TREATMENT — Generally
Under the WLAD, disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, [disability], [age], or other protected status.” Alonso v. Qwest Communications Company*, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)) (hyperlinks added).
THE “ADVERSE EMPLOYMENT ACTION” ELEMENT
Adverse employment action “means ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” Id.* at 808 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
THE “REASONABLE INFERENCE OF UNLAWFUL DISCRIMINATION” ELEMENT
Employment-discrimination plaintiffs often establish this element by using similarly situated, nonprotected co-workers for comparison. Such “[s]imilarly situated employees must have the same supervisor, be subject to the same standards, and have engaged in the same conduct.” Id.* at 810 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
ELEMENTS ARE NOT ABSOLUTE But VARY BASED ON RELEVANT FACTS
“The elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin*, 194 Wn.App. at 808 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)).
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)*.
Under Washington State laws, what are “protected classes” within the context of employment discrimination? Here’s my point of view.
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INTRODUCTION: PROTECTED CLASSES (WA STATE)
Washington State has comprehensive employment-discrimination laws to shield workers from unjust treatment rooted in specific attributes. An integral facet of these legal provisions is the acknowledgment of “protected classes.” This article will enumerate the protected classes within the employment-rights framework of the Washington Law Against Discrimination.
I. The Washington Law Against Discrimination: EMPLOYMENT
The Washington Law Against Discrimination (“WLAD”) is a potent statute enacted in 1949, and it covers a broad array of categories including, but not limited to employment, as follows:
Freedom from discrimination—Declaration of civil rights.
(a) The right to obtain and hold employment without discrimination;
…
RCW 49.60.030(1)(a) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.
II. Unfair Practices of Employers: generally
Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:
(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.
[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.
III. unfair practices of employers: filing or participating in a disrimination complaint (UNLAWFUL RETALIATION)
The WLAD also outlaws certain types of retaliation: “[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.” RCW 49.60.210.
NOTE: The foregoing unfair practices are based upon specific protected classes.
IV. Defining Protected Classes
Protected classes encompass groups of individuals shielded from discrimination under governmental statutes. Washington State explicitly delineates these classes under the WLAD, recognizing various categories within, inter alia, the realm of employment, including the following:
Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).
Conclusion
In conclusion, the exploration of protected classes within Washington State’s employment discrimination laws highlights the state’s commitment to fostering a workplace environment rooted in equality and fairness. The Washington Law Against Discrimination (WLAD), a robust statute enacted in 1949, serves as a powerful safeguard against unjust treatment based on specific attributes.
In essence, the WLAD stands as a cornerstone in Washington State’s pursuit of equal opportunities, reinforcing the principles of fairness, justice, and non-discrimination in employment. As we navigate the complexities of the modern workplace, understanding and upholding the rights of protected classes are crucial steps towards creating a truly inclusive and equitable work environment in the Evergreen State.
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FAQ: Can you prove employment discrimination without direct evidence?
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Can you prove employment discrimination without direct evidence?
STEP 1*: The “plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination.” Scrivener v. Clark College*, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis & hyperlink added).
STEP 3*: “[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant’s alleged nondiscriminatory reason for the adverse employment action was a pretext*.” Id.* (internal citations omitted) (emphasis & hyperlink added).
Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning termination of a case without findings of fact? Here’s my point of view.
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Understanding WAC 162-08-099*: When the Washington State Human Rights Commission May End a Case Without Findings of Fact
The Washington State Human Rights Commission (WSHRC) is responsible for enforcing the state’s anti-discrimination laws under RCW 49.60*, also known as the Washington Law Against Discrimination (WLAD). Typically, once a complaint is filed, the Commission investigates and—if warranted—issues findings of fact to determine whether an unfair practice occurred. However, WAC 162-08-099* outlines circumstances in which the Commission may terminate a case before reaching findings of fact.
1. Voluntary Withdrawal of a Complaint
If the complainant requests to withdraw their complaint and the Commission consents (as described in WAC 162-08-091), no findings or further formal procedures are required. This allows individuals to end their case voluntarily without a full investigation or determination.
2. Settlement Before Findings (Prefinding Settlement)
In many cases, disputes are resolved through settlement agreements before the Commission completes its investigation. When the Commission’s staff and a respondent have entered into a written settlement agreement (i.e., a prefinding settlement), the agreement is presented to the commissioners for approval.
• The Commission must vote to accept the agreement before it becomes binding.
• Once approved, the Commission issues an order formalizing the settlement.
• “A prefinding settlement is not binding on the commission until the commissioners vote to accept it and issue their order.” WAC 162-08-099(3)*.
This procedure encourages early resolution while maintaining the Commission’s oversight role to ensure fairness and compliance with the law. NOTE: This process does not apply to a complaint alleging an unfair practice in a real estate transaction.
3. Administrative Closure
The Commission may also administratively close a case without findings when certain practical or procedural circumstances arise, such as:
• The complaint has been resolved informally or adjudicated elsewhere,
• The issue has become moot,
• The complainant or respondent cannot be located, or
• Other factors make further investigation impossible or unnecessary.
Administrative closure is an official action that halts further work on a complaint, though the Commission retains the authority to reopen the case later if circumstances change.
Implications
For both complainants and respondents, understanding WAC 162-08-099* clarifies that not every case will move through the full fact-finding process. Early settlement, voluntary withdrawal, or administrative closure can end a complaint efficiently while preserving fairness and procedural integrity.
In short, this rule gives the Human Rights Commission the flexibility to manage its caseload responsibly while ensuring that every case receives appropriate consideration under Washington’s anti-discrimination laws.
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Unsworn Statements Versus Affidavits (WA State)
In Washington State, General Rule (GR) 13* simplifies how parties can submit sworn statements in court. Traditionally, an affidavit—a written statement confirmed by oath before a notary public—was required to prove or support many types of filings. GR 13* modernizes this process by allowing unsworn statements made under penalty of perjury to serve the same purpose in most circumstances.
What GR 13 Allows
When a law or rule requires a matter to be “supported or proved by affidavit,” it may instead be supported by a written statement, declaration, verification, or certificate that:
1. States it is made under penalty of perjury;
2. Includes the date and place of signing; and
3. Declares it is made under the laws of Washington State.
The rule provides a sample form:
——–
“I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.”
(Date and Place) (Signature)
——–
When GR 13 Does Not Apply
There are important exceptions. Under GR 13(b)*, the rule does not apply to documents that legally require an acknowledgment (such as deeds), oaths of office, or oaths that must be administered before a specific official other than a notary.
Implications
For both attorneys and self-represented litigants, GR 13* streamlines filings by eliminating the need for notarization in most court documents. This can save time, reduce costs, and make legal processes more accessible—particularly when remote filing or urgent deadlines are involved.
When drafting pleadings, declarations, or motions that previously required an affidavit, Washington practitioners can confidently rely on GR 13*—provided the unsworn statement contains the correct language and complies with GR 30’s* electronic signature requirements.
In short, GR 13* brings efficiency and flexibility to Washington’s legal system without compromising the integrity of sworn testimony.
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Summary Judgment: Mere Allegations vs. Specific Facts
In an employment discrimination case, the plaintiff “need produce very little evidence in order to overcome an employer‘s motion for summary judgment. This is because ‘the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.’” Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.1996)) (hyperlink added).
But even in employment discrimination cases, summary judgment must be granted when there is a “complete failure of proof concerning an essential element of the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party may not rely on the mere allegations in the pleadings to show a “genuine issue for trial,” but must instead “set forth specific facts[.]” Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 891 (9th Cir.2005) (internal quotation omitted) (emphasis added). This means that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
Thus, “summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995).
Conclusion
Under Washington State law, an employment-discrimination plaintiff may not rely on mere allegations to overcome a motion for summary judgment. Instead, the plaintiff must set forth specific facts.
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Under the Washington State Administrative Code (hereinafter, “WAC”), what are the Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning the nature of orders and enforcement? Here’s my point of view.
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WAC 162-08-305: Understanding the Public Nature of Commission Orders
WAC 162-08-305* defines how orders issued in Washington State Human Rights Commission proceedings function and who controls their enforcement. The rule emphasizes that these orders are tools of public law enforcement rather than private remedies owned by individual complainants.
Orders Serve a Public Enforcement Role
Under this regulation, orders secured by Commission counsel are characterized as public reparation orders. They are not judgments resolving private disputes between respondents and affected individuals. Even when an order directs a respondent to reinstate or compensate a person harmed by an unfair practice, the beneficiary does not hold a vested property right in that relief until it is actually delivered. This reflects the Commission’s statutory role in advancing compliance with the Law Against Discrimination on behalf of the public at large.
Enforcement Is Reserved to the Commission
The rule also centralizes enforcement authority. With limited statutory and regulatory exceptions (see RCW 49.60.260* and WAC 162-08-288*, respectively), only the Commission—acting through its legal counsel—may enforce an administrative law judge’s order. See RCW 49.60.260*. Individual complainants or beneficiaries do not have independent standing to enforce these orders, reinforcing the distinction between Commission proceedings and private civil actions.
Authority to Modify or Settle Orders
Finally, WAC 162-08-305* authorizes the Commission to compromise an order in good faith, even without the agreement of the individuals who would benefit from it. Except in certain real estate-related cases, this discretion allows the Commission to manage enforcement in a way that accounts for practical realities, legal risk, and broader policy objectives.
Implications
WAC 162-08-305* underscores that remedies issued through the Human Rights Commission are designed to vindicate public interests. While individuals may benefit from these orders, ultimate control over enforcement and resolution remains with the Commission itself.
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Title 42 of the United States Code § 1981 (“Section 1981” or “§ 1981”) is a cornerstone of civil rights law, ensuring equal treatment for all individuals in the U.S., regardless of race. It primarily protects the right to make and enforce contracts–which includes “the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship”–ensuring that people of all racial backgrounds can participate equally in legal and business affairs. 42 U.S.C. § 1981*. The relevant law states as follows:
42 U.S. Code § 1981 – Equal rights under the law
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
In the employment context, § 1981 “bars employers from discriminating and retaliating against employees based on the employee’s race[.]” Tank v. T-Mobile USA, Inc., 758 F.3d 800, 805 (7th Cir. 2014); see Surrell v. California Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (“[Section] 1981 prohibits discrimination in the ‘benefits, privileges, terms and conditions’ of employment.”) (citing 42 U.S.C. § 1981(b)) (other citation omitted). Thus, Section 1981 specifically prohibits racial discrimination. Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir. 1986).
Equal Rights in Contracts and Legal Matters
Section 1981 guarantees that everyone has the same rights as white citizens to engage in contracts, participate in legal proceedings, and receive legal protections. This includes the ability to sue, give evidence, and ensure the safety of one’s person and property, free from racial discrimination.
Scope of “Making and Enforcing Contracts”
The law goes beyond just the signing of agreements. It covers the entire process of creating, performing, modifying, and terminating contracts. The statute ensures that individuals can enjoy the same benefits and terms within a contractual relationship, regardless of their race or ethnicity.
Protection Against Discrimination
Section 1981 prohibits both governmental and private entities from discriminating based on race in contractual and legal matters. This means individuals are protected from racial bias not only by government actions but also by private employers, businesses, and organizations.
Conclusion
In sum, 42 U.S. Code Section 1981 plays a vital role in ensuring racial equality in contractual and legal rights, supporting fair treatment for all individuals in the U.S. It is an essential tool for protecting civil rights and promoting an equitable society.
Under the Washington State Administrative Code (hereinafter, “WAC”), how may the Washington State Human Rights Commission address the breach of a conciliated agreement? Here’s my point of view.
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Breach of Conciliated Agreement Under Washington Law
When discrimination complaints are resolved through Washington’s administrative process, the parties may enter into a conciliated agreement approved by the Washington State Human Rights Commission (WSHRC). These agreements are designed to eliminate unlawful practices under the Washington Law Against Discrimination (WLAD), RCW 49.60*. But what happens if one party fails to honor the terms of that agreement?
WAC 162-08-109* addresses this issue by outlining the tools available to the Commission’s executive director when a conciliation agreement is breached; it states as follows:
WAC 162-08-109 Breach of conciliated agreement.
If an agreement and order for the elimination of an unfair practice made under RCW 49.60.240* is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:
(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;
(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or
(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310*.
WAC 162-08-109* (emphasis and paragraph formatting added).
Options Available to the Commission
Thus, if a party violates the agreement, the executive director may choose one or more of the following steps, depending on the circumstances:
1. Specific Enforcement in Court
The Commission may file an action in superior or district court to enforce the agreement. This could mean seeking a court order that compels compliance with the original terms, or pursuing damages that were provided for in the agreement.
2. Setting Aside the Agreement
The executive director may recommend that the Commissioners void the agreement, in whole or in part. If this occurs, the case can be reopened for further conciliation efforts, or it may be referred to the Commission’s legal counsel for a formal hearing.
3. Referral for Prosecution
In certain cases, the violation may be referred to the appropriate prosecuting attorney for enforcement under RCW 49.60.310*, which provides for criminal penalties in connection with violations of the WLAD.
Why This Rule Matters
For individuals, this rule ensures that entering into a conciliation agreement is not the end of the road—there is accountability if the other party fails to follow through. For attorneys, it highlights the importance of drafting and reviewing conciliation agreements carefully, since breach can lead to renewed litigation, enforcement actions, or even criminal referral.
In short, WAC 162-08-109* underscores that compliance with conciliation agreements is not optional. The Human Rights Commission has meaningful enforcement mechanisms to protect both the integrity of the process and the rights of the parties involved.
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