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ORIGIN OF THE DISPARATE IMPACT CLAIM: GRIGGS V. DUKE POWER CO.
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), “the [United States] Supreme Court held that Title VII prohibits employment practices that are discriminatory in effect as well as those based on discriminatory intent.” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 498, 325 P.3d 193 (Wash. 2014) (citing Griggs, 401 U.S. at 429-30) (emphasis in original) (hyperlink added).
“The unanimous Griggs Court reasoned that Title VII‘s purposes could not be achieved unless the statute was construed to bar practices … neutral on their face, and even neutral in terms of intent [that] operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Kumar, 180 Wn.2d at 498 (citing Griggs, 401 U.S. at 430) (alteration in original) (internal quotation marks omitted) (hyperlink added).
“The [U.S.] Supreme Court therefore held that Title VII barred even a facially neutral job requirement if that requirement disproportionately burdened a protected class, unless the requirement bore a legitimate relation to ‘job performance,’ that is, unless it constituted a ‘business necessity.'” Id. at 498-99 (citing Griggs, 401 U.S. at 431) (hyperlink added). “The Griggs decision created the cause of action now known as a ‘disparate impact’ claim.'”Kumar, 180 Wn.2d at 499 (citing Smith v. City of Jackson, 544 U.S. 228, 230, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005)) (emphasis added).
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THE PUBLIC DUTY DOCTRINE
“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182, 198 (Wash. 2018) (internal citations and quotation marks omitted) (hyperlink added).
EXCEPTION TO THE DOCTRINE (SPECIAL RELATIONSHIPS)
“An exception to the public duty doctrine applies if there is a ‘special relationship’ between the parties.” Id. (internal citation omitted). “A special relationship arises where[:]
(1) there is direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and
(2) there are express assurances given by a public official, which
(3) give[ ] rise to justifiable reliance on the part of the plaintiff.
Id. (second alteration in original) (internal citations and quotation marks omitted) (paragraph formatting added).
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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.
WLAD “generally prohibits employers from discriminating against an employee because the employee has a disability.” Certification (9th Cir.): Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 614 (Wash. 2019) (citing RCW 49.60.180). “An employee has a disability if they have an ‘impairment’ that ‘[i]s medically cognizable or diagnosable,’ ‘[e]xists as a record or history,’ or ‘[i]s perceived to exist whether or not it exists in fact.'” Id. (citing RCW 49.60.040(7)(a)) (alteration in original).
OBESITY ALWAYS QUALIFIES AS AN IMPAIRMENT
In 2018, “[t]he United States Court of Appeals for the Ninth Circuit certified the following question to … [the Washington State Supreme Court]: Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD, RCW] 49.60.040?” Taylor, 193 Wn.2d at 614-15 (citing Order Certifying Question to Wash. Supreme Ct., Taylor v. Burlington N. R.R. Holdings, Inc., 904 F.3d 846, 853 (9th Cir. 2018)) (alteration in original) (internal quotation marks omitted) (hyperlink added).
Accordingly, the Washington State Supreme Court held as follows: “We answer that obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a ‘physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Id. at 615 (hyperlink and emphasis added). Moreover, for purposes of failure-to-hire disparate treatment cases, the plaintiff doesn’t need to prove that they’re actually impaired (i.e., obese).
DISPARATE TREATMENT (FAILURE TO HIRE): PERCEIVED DISABILITY IS A PROTECTED CLASS
“In order to prevail in a [failure-to-hire] disparate treatment case … [based on obesity,] a plaintiff need show only that the employer perceived the employee as having an ‘impairment.'” See id. at 622 (citing RCW 49.60.040(7)) (internal citations and footnote omitted) (emphasis added). “Unlike in a reasonable accommodation case, the plaintiff in a disparate treatment case need not show that they are actually impaired or that the impairment has any actual or potential substantially limiting effect.” Id. at 637 (referencing RCW 49.60.040(7)(d)).
Thus, “if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates … the WLAD.” Id. (footnote omitted) (emphasis added).
CONCLUSION
Under Washington Law Against Discrimination, perceived obesity is considered a protected class for purposes of failure-to-hire disparate treatment claims.
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Under WA State laws, what is the proper inquiry for vicarious liability within the scope of employment law? Here’s my point of view.
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VICARIOUS LIABILITY
A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. Vicarious liability is “[l]iability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.” Black’s Law Dictionary 934 (8th ed. 2004).
Under Washington State law, after “an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Robel v. Roundup Corporation*, 148 Wn.2d 35, 53 (Wash. 2002) (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)).
The proper vicarious-liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id. An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.
DEFEATING A CLAIM OF VICARIOUS LIBAILITY
“An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was[:]
(1) ‘intentional or criminal’ and
(2) ‘outside the scope of employment.’
Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001)) (paragraph formatting added).
However, intentional or criminal conduct is not per se outside the cope of employment. Id. at 53. Moreover, it is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.
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Under Washington State laws, when are employee noncompetition covenants void and unenforceable? Here’s my point of view.
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NONCOMPETITION COVENANTS (WA STATE)
Generally, a noncompetition covenant is “[a] promise , usu. in a sale-of-business, partnership, or employment contract, not to engage in the same type of business for a stated time in the same market as the buyer, partner, or employer.” Black’s Law Dictionary 392 (8th ed. 2004) (emphasis added). In Washington State, a “‘[n]oncompetition covenant’ includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind.” RCW 49.62.010(4)*.
The Washington State Legislature has found both that “workforce mobility is important to economic growth and development[ ]” and that “agreements limiting competition or hiring may be contracts of adhesion** that may be unreasonable.” RCW 49.62.005* (hyperlink added). Washington’s noncompetition covenants law (hereinafter, “law”), RCW 49.62*, took effect on January 1, 2020 and establishes when such noncompetition covenants are void and unenforceable. See RCW 49.62.900*.
WHEN VOID AND UNENFORCEABLE
In Washington State, a noncompetition covenant is considered void and unenforceable against an employee unless certain conditions are met. The relevant law follows:
(1) A noncompetition covenant is void and unenforceable against an employee:
(a)(i) Unless the employer discloses the terms of the covenant in writing to the prospective employee no later than the time of the acceptance of the offer of employment and, if the agreement becomes enforceable only at a later date due to changes in the employee’s compensation, the employer specifically discloses that the agreement may be enforceable against the employee in the future; or
(ii) If the covenant is entered into after the commencement of employment, unless the employer provides independent consideration for the covenant;
(b) Unless the employee’s earnings from the party seeking enforcement, when annualized, exceed one hundred thousand dollars per year. This dollar amount must be adjusted annually in accordance with RCW 49.62.040*;
(c) If the employee is terminated as the result of a layoff, unless enforcement of the noncompetition covenant includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.
(2) A court or arbitrator must presume that any noncompetition covenant with a duration exceeding eighteen months after termination of employment is unreasonable and unenforceable. A party seeking enforcement may rebut the presumption by proving by clear and convincing evidence that a duration longer than eighteen months is necessary to protect the party’s business or goodwill.
The law also protects independent contractors to a certain extent. “A noncompetition covenant is void and unenforceable against an independent contractor unless the independent contractor’s earnings from the party seeking enforcement exceed two hundred fifty thousand dollars per year.” RCW 49.62.030* (emphasis added). “This dollar amount must be adjusted annually in accordance with RCW 49.62.040*.” Id. In addition, “[t]he duration of a noncompetition covenant between a performer and a performance space, or a third party scheduling the performer for a performance space, must not exceed three calendar days.” Id.
UNENFORCEABLE COVENANT PROVISIONS
Lastly, the law determines when noncompetition covenant provisions are unenforceable. “A provision in a noncompetition covenant signed by an employee or independent contractor who is Washington-based is void and unenforceable:
(1) If the covenant requires the employee or independent contractor to adjudicate a noncompetition covenant outside of this state; and
(2) To the extent it deprives the employee or independent contractor of the protections or benefits of this chapter[, RCW 49.62*].”
RCW 49.62.050* (paragraph formatting, emphasis, and hyperlinks added).
Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) “Earnings” means the compensation reflected on box one of the employee’s United States internal revenue service form W-2 that is paid to an employee over the prior year, or portion thereof for which the employee was employed, annualized and calculated as of the earlier of the date enforcement of the noncompetition covenant is sought or the date of separation from employment. “Earnings” also means payments reported on internal revenue service form 1099-MISC for independent contractors.
(2) “Employee” and “employer” have the same meanings as in RCW 49.17.020*.
(3) “Franchisor” and “franchisee” have the same meanings as in RCW 19.100.010*.
(4) “Noncompetition covenant” includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind. A “noncompetition covenant” does not include:
(a) A nonsolicitation agreement;
(b) a confidentiality agreement;
(c) a covenant prohibiting use or disclosure of trade secrets or inventions;
(d) a covenant entered into by a person purchasing or selling the goodwill of a business or otherwise acquiring or disposing of an ownership interest; or
(e) a covenant entered into by a franchisee when the franchise sale complies with RCW 19.100.020(1)*.
(5) “Nonsolicitation agreement” means an agreement between an employer and employee that prohibits solicitation by an employee, upon termination of employment:
(a) Of any employee of the employer to leave the employer; or
(b) of any customer of the employer to cease or reduce the extent to which it is doing business with the employer.
(6) “Party seeking enforcement” means the named plaintiff or claimant in a proceeding to enforce a noncompetition covenant or the defendant in an action for declaratory relief.
RCW 49.62.010* (paragraph formatting, emphasis, and hyperlinks added).
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DUTY TO PROVIDE REASONABLE ACCOMMODATIONS (EMPLOYERS)
When an employer’s accommodation is ineffective, the employee’s corresponding duty to communicate mandates: “If the employee does not communicate to the employer that an accommodation was not effective, he or she cannot maintain a failure to accommodate claim.” Id. at 587 (internal citation omitted) (emphasis and hyperlinks added). The basis for this duty is that “an employer must be able to ascertain whether its efforts at accommodation have been effective, and therefore an employee has a duty to communicate to the employer whether the accommodation was effective.” Id. at 586-87 (citing Frisino v. Seattle Sch. Dist. No. 1, 160 Wn.App. 765, 783, 249 P.3d 1044 (2011)) (hyperlinks added).
EXAMPLE: MACKEY v. HOME DEPOT USA, INC.
In Mackey v. Home Depot USA, Inc., “Mackey began working at Home Depot[] … in 2006.” Id. at 564. “During her employment, Mackey suffered from depression, posttraumatic stress disorder (PTSD), and degenerative disc disease. She asked for accommodations related to all these conditions.” Id.
home depot’s DUTY TO ACCOMMODATE (EMPLOYER)
“Home Depot accommodated Mackey’s degenerative disc disease by allowing [her] … to have other employees do any required lifting.” Id. at 586.
mackey’s FAILURE TO ACCOMMODATE CLAIM
“Home Depot [eventually] terminated Mackey’s employment after an investigation determined that she had been violating company policies regarding discounts on customer orders.” Id. at 563. “Mackey asserted claims for[, inter alia,] failure to reasonably accommodate her physical disability.” Id. “Mackey argue[d] that [Home Depot’s disability] … accommodation was unreasonable because it required her to seek out the help of other employees and tell them about her disability before completing the lifting tasks assigned to her.” Id.
mackey’s DUTY TO COMMUNICATE (EMPLOYEE)
The employer defended by asserting, “Mackey failed to notify Home Depot that the [disability] accommodation it provided to her was insufficient or unreasonable.” Id. at 586. The Court also noted: “Mackey admitted that she never complained to Home Depot that she did not have someone to lift for her or that the accommodation was not adequate.” Id. at 587.
THE COURT’S HOLDING
The Washington State Court of Appeals held, “[T]he trial court did not err in granting summary judgment on Mackey’s failure to reasonably accommodate claim because Mackey never notified Home Depot that the accommodation it provided was ineffective or unreasonable.” Id. at 564.
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Under Washington State laws, what are employer limitations when disclosing employee information in response to employment reference checks and verifications? Here’s my point of view.
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EMPLOYMENT REFERENCE CHECKS AND VERIFICATIONS — IMMUNITY FROM CIVIL/CRIMINAL LIABILITY — PRESUMPTION OF GOOD FAITH
Under Washington State law, if an employer discloses information to a prospective employer or employment agency concerning a current or former employee–and that disclosure was specifically requested by the prospective employer or employment agency–then the disclosing employer “is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to:
(a) the employee’s ability to perform his or her job;
(b) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or
(c) any illegal or wrongful act committed by the employee when related to the duties of his or her job.
RCW 4.24.730(1) (paragraph formatting and emphasis added).
WRITTEN RECORDS
An employer that discloses employee information pursuant to this section (RCW 4.24.730) to a prospective employer or employment agency “should retain a written record of the identity of the person or entity to which information is disclosed under this section for a minimum of two years from the date of disclosure.” RCW 4.24.730(2) (emphasis added).
“The employee or former employee has a right to inspect any such written record upon request and any such written record shall become part of the employee’s personnel file, subject to the provisions of chapter 49.12 RCW.” RCW 4.24.730(2) (emphasis added).
REBUTTING THE PRESUMPTION OF GOOD FAITH
To rebut the presumption of good faith under this section (RCW 4.24.730), there must be “a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth.” RCW 4.24.730(3) (emphasis added).
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Under Washington State law, what does the term “discovery” mean within the context of pre-trial legal proceedings? Here’s my point of view.
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Introduction: Discovery (WA State)
Discovery stands as an integral component of the legal process in Washington State, as it does across the United States. This phase precedes trial and entails the exchange of information and evidence between parties involved in a lawsuit. This article will explore what discovery means within the context of Washington State jurisprudence, its critical role, and the primary methods employed to unearth important information during this crucial phase.
Objectives of Discovery
Within the framework of Washington State jurisprudence, discovery signifies the formal mechanism by which parties embroiled in a legal dispute acquire and share information, evidence, and documents pertinent to the case. Its objectives are manifold:
1. Transparent Disclosure:
Discovery ensures that all parties possess access to the same information, fostering transparency and impartiality in litigation.
2. Preparation for Trial:
It allows legal representatives to compile evidence, evaluate the merits and drawbacks of their case, and strategize for the impending trial.
3. Facilitating Settlement Negotiations:
Information amassed during the discovery process can facilitate settlement discussions by enabling parties to assess potential trial outcomes.
Significance of Discovery
Discovery carries immense weight in the legal process of Washington State for several compelling reasons:
1. Equity and Fairness:
It ensures that all parties have an equal footing in accessing and presenting evidence, thereby upholding fairness in legal proceedings.
2. Operational Efficiency:
Discovery helps streamline litigation by focusing on the core issues in dispute and preventing last-minute surprises during trial.
3. Catalyzing Settlements:
The information garnered through discovery frequently prompts negotiated settlements, ultimately conserving time and resources for all involved parties.
4. Enhanced Trial Preparedness:
Attorneys can construct more robust cases by understanding the strengths and weaknesses inherent in their own arguments as well as those of their adversaries.
Primary Methods
Similar to most U.S. jurisdictions, Washington State employs various methods for conducting discovery. The following are some principal methods:
1. Interrogatories:
Interrogatories involve the submission of written questions from one party to another. The receiving party must respond in writing, under oath. This method serves to extract information and obtain admissions regarding the case.
2. Requests for Production of Documents:
Parties can request the submission of specific documents, such as contracts, emails, or medical records, relevant to the lawsuit. These documents must be provided for examination and copying.
3. Depositions:
Depositions comprise sworn testimonies given by parties or witnesses in the presence of a court reporter. The recorded testimony can serve as evidence during the trial. Depositions enable more comprehensive questioning and clarification of information.
4. Requests for Admission:
With Requests for Admission (RFAs), one party can seek to compel the opposing party to admit or deny specific factual statements or the authenticity of documents. These admissions can simplify trial matters by narrowing the points in dispute.
5. Subpoenas:
Subpoenas are legal orders that mandate third parties, such as banks, employers, or medical providers, to produce documents or testify at a deposition. They constitute a valuable means of accessing information held by non-parties.
Conclusion
In Washington State jurisprudence, discovery constitutes a pivotal facet of the legal process, empowering parties to acquire information and evidence indispensable for resolving their disputes. By fostering transparency, aiding in trial preparation, and facilitating potential settlements, discovery contributes to the impartial and efficient administration of justice within the state’s court system. A comprehensive comprehension of the diverse methods and the significance of discovery is indispensable for anyone navigating the intricate legal terrain in Washington State.
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Under Washington State laws, may a person, firm, corporation or the state of Washington (including its political subdivisions or municipal corporations) require employees or prospective employees to take or be subjected to lie-detector tests as a condition of employment or continued employment? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON STATE: THE LIE-DETECTOR LAW
Under Washington State law, it’s “unlawful for any person, firm, corporation or the state of Washington, its political subdivisions or municipal corporations to require, directly or indirectly, that any employee or prospective employee take or be subjected to any lie detector or similar tests as a condition of employment or continued employment[.]” RCW 49.44.120 (hereinafter, “Lie-Detector Law” or “Law“) (hyperlinks added). However, there are several limitations:
Limitation #1: The Lie-Detector Law does not “apply to persons making application for employment with any law enforcement agency or with the juvenile court services agency of any county, or to persons returning after a break of more than twenty-four consecutive months in service as a fully commissioned law enforcement officer[.]” Id.
Limitation #2: The Law does “not apply to either the initial application for employment or continued employment of persons who manufacture, distribute, or dispense controlled substances as defined in chapter 69.50 RCW, or to persons in sensitive positions directly involving national security.” RCW 49.44.120.
Limitation #3: Nothing in the Law can “be construed to prohibit the use of psychological tests as defined in RCW 18.83.010.” RCW 49.44.120(2).
Limitation #4: Nothing in the Law “may be construed as limiting any statutory or common law rights of any person illegally denied employment or continued employment under this section for purposes of any civil action or injunctive relief.” RCW 49.44.120(5).
NOTE: The Lie-Detector Law defines the term “person” to include “any individual, firm, corporation, or agency or political subdivision of the state.” Id. Violations of the Law can lead to civil liability as well as criminal culpability.
CIVIL LIABILITY: REMEDIES
For civil actions based on violations of RCW 49.44.120, “the court may:
(1) Award a penalty in the amount of five hundred dollars to a prevailing employee or prospective employee in addition to any award of actual damages;
(2) Award reasonable attorneys’ fees and costs to the prevailing employee or prospective employee; and
(3) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of RCW 49.44.120 reasonable expenses and attorneys’ fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.
In addition to civil liability, persons violating the Lie-Detector Law are also guilty of a misdemeanor. RCW 49.44.120(3).
CONCLUSION
Washington State’s Lie-Detector Law protects both employees and prospective employees from invasive lie-detector tests used as a condition of employment or continued employment; however, there are several reasonable limitations.
Ultimately, violations of the Law can lead to both civil liability and/or criminal culpability. However, civil litigants should note that the court may award a prevailing defendant “reasonable expenses and attorneys’ fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.” Proceed with caution.
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(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.)
A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.
Actions limited to three years. Within three years:
* * *
(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;
Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).
“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).
WARNING
It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.
Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.
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(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.)
A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.
“In Fowler v. Guerin, our [Washington State] Supreme Court explained that ‘statutes of limitation reflect the importance of finality and settled expectations in our civil justice system.'” Campeau v. Yakima HMA LLC, 38152-8-III (Wash. App. May 02, 2023) (citing Fowler v. Guerin, 200 Wn.2d 110, 118, 515 P.3d 502 (2022)). Accordingly, “[a] statutory time bar is a legislative declaration of public policy which the courts can do no less than respect, with rare equitable exceptions.” Id. (citing Fowler, 200 Wn.2d at 118, 515 P.3d 502) (alteration in original) (internal quotation marks omitted) (emphasis added).
eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD
“In civil cases, Washington has consistently required a plaintiff seeking equitable tolling of the statute of limitations to demonstrate [the following:]
(1) the plaintiff has exercised diligence,
(2) the defendant’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing,
(3) tolling is consistent with
(a) the purpose of the underlying statute and
(b) the purpose of the statute of limitations, and
(4) justice requires tolling the statute of limitations.
Campeau, 38152-8-III (citing Fowler, 200 Wn.2d at 125, 515 P.3d 502 (“describing the four predicates as the Millay standard[, Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1988)]”)) (emphasis added).
However, Washington courts have “cautioned against broadly applying equitable tolling in a manner that would substitute for a positive rule established by the legislature a variable rule of decision based upon individual ideas of justice.” Id. (citing Fowler, 200 Wn.2d at 119, 515 P.3d 502) (internal citation and quotation marks omitted).
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Under Washington State law, are illegal contracts enforceable when they are in conflict with a statutory law? 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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ILLEGAL CONTRACTS IN WASHINGTON STATE
“A contract that is in conflict with statutory requirements is illegal and unenforceable as a matter of law.” Failor’s Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994) (Medicaid reimbursement schedules promulgated in violation of statutory requirements were void and unenforceable).
Accordingly, where “a contract is illegal or grows immediately out of and is connected with an illegal contract, Washington courts leave the parties to the contract where they find them.” State v. Pelkey, 58 Wn.App. 610, 615, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted). Thus, “as a general rule, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.” Id. (internal quotation marks and citations omitted).
EXAMPLE: STATE v. PELKEY
For example, in State v. Pelkey, a criminal defendant allegedly attempted to bribe a city police officer by giving him goods and money to be kept appraised of vice surveillance; however, Pelkey’s criminal case was ultimately dismissed, and Pelkey sought return of said goods and money. Id. at 611-12. The City argued that the property did not have to be returned, because no seizure had occurred and Pelkey filed his motion in the wrong court. The court refused to honor the parties’ so-called contractual agreement, leaving them as the court found them, after reasoning that a contract that is contrary to the terms and policy of an express legislative enactment [i.e., bribery] is illegal and unenforceable. See id.
CONCLUSION
In Washington State, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.
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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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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT
WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES
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 4/19/23. The agency has certain functions, powers, and duties, as follows:
RCW 49.60.120
Certain powers and duties of commission.
The commission shall have the functions, powers, and duties:
(1) To appoint an executive director and chief examiner, and such investigators, examiners, clerks, and other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
(2) To obtain upon request and utilize the services of all governmental departments and agencies.
(3) To adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.
(4) To receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in this chapter.
(5) To issue such publications and results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of sex, sexual orientation, race, creed, color, national origin, citizenship or immigration status, marital status, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability.
(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies.
(7) To cooperate and act jointly or by division of labor with the United States or other states, with other Washington state agencies, commissions, and other government entities, and with political subdivisions of the state of Washington and their respective human rights agencies to carry out the purposes of this chapter. However, the powers which may be exercised by the commission under this subsection permit investigations and complaint dispositions only if the investigations are designed to reveal, or the complaint deals only with, allegations which, if proven, would constitute unfair practices under this chapter. The commission may perform such services for these agencies and be reimbursed therefor.
(8) To foster good relations between minority and majority population groups of the state through seminars, conferences, educational programs, and other intergroup relations activities.
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.
(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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LOCAL GOVERNMENT TORT-CLAIM FILING STATUTE
A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. Prospective plaintiffs intending to pursue tort claims against a Washington State local-governmental entity are required to conform to certain statutory requirements. See RCW 4.96. The relevant law states as follows:
RCW 4.96.010
Tortious conduct of local governmental entities—Liability for damages.
(1) All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.
Filing a claim for damages within the time allowed by law shall be a condition precedent to the commencement of any action claiming damages.
The laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory.
(2) Unless the context clearly requires otherwise, for the purposes of this chapter, “local governmental entity” means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, any joint municipal utility services authority, any entity created by public agencies under RCW 39.34.030, or public hospital.
(3) For the purposes of this chapter, “volunteer” is defined according to RCW 51.12.035.
RCW 4.96.010 (paragraph formatting and emphasis added).
THE 60-DAY REQUIREMENT
Thus, a “local government entity is liable for damages arising from its tortious conduct to the same extent as if it were a private person or corporation.” Renner v. City of Marysville, 230 P.3d 569, 571, 168 Wash.2d 540 (Wash. 2010) (citing RCW 4.96.010(1)). “However, prospective plaintiffs must file a tort claim with the local government at least 60 days prior to filing a lawsuit.” Id. The relevant law is as follows:
RCW 4.96.020
Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.
…
(4) No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof.
The applicable period of limitations within which an action must be commenced shall be tolled during the sixty calendar day period.
For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.
RCW 4.96.020(4) (paragraph formatting and emphasis added).
(IMPORTANT: There are additional filing requirements (e.g., access to standard forms, content, delivery, etc.) that will not be discussed in this article for the sake of brevity. Failure to conform to these additional requirements could result in severe consequences during litigation. The reader is strongly encouraged to both seek legal counsel and refer to RCW 4.96 for more information.)
GUIDING POLICIES
the CLAIM FILING STATUTE
“The claim filing statute is intended to provide local governments with notice of potential tort claims, the identity of the claimant, and general information about the claim.” Renner, 230 P.3d at 571 (emphasis added).
The TORT CLAIM
“The purpose of … [the tort] claim is ‘to allow government entities time to investigate, evaluate, and settle claims’ before they are sued.” Id (citingMedina v. Pub. Util. Dist. No. 1, 147 Wash.2d 303, 310, 53 P.3d 993 (2002)) (emphasis added).
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Under Washington State law, what is the tort of outrage (hereinafter, “tort of outrage” or “intentional infliction of emotional distress”)? 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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THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)
A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. The tort of outrage is one type of tort that is also known as intentional infliction of emotional distress; it “requires the proof of three elements:
(1) extreme and outrageous conduct,
(2) intentional or reckless infliction of emotional distress, and
(3) actual result to plaintiff of severe emotional distress.
Kloepfel v. Bokor, 66 P.3d 630, 632, 149 Wash.2d 192 (Wash. 2003) (internal citations omitted). According to the Washington State Supreme Court: “These elements were adopted from the Restatement (Second) of Torts § 46 (1965) by this court in Grimsby v. Samson, 85 Wash.2d 52, 59-60, 530 P.2d 291 (1975).” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192(footnote omitted).
LEVEL OF OUTRAGE
“Grimsby held any claim for intentional infliction of emotional distress must be predicated on behavior ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id. (citingGrimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (emphasis in original). Further, “[t]hat must be conduct which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!'” Id. (internal citations and quotation marks omitted).
MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSIONS, OR OTHER TRIVIALITIES NOT ENOUGH
“Consequently, the tort of outrage does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. (citing Grimsby, 85 Wash.2d at 59, 530 P.2d 291 (quoting Restatement (Second) of Torts § 46 cmt. d)) (internal quotation marks omitted).
OBJECTIVE SYMPTOMATOLOGY
“Many states, including … [Washington], have distinguished negligent infliction of emotional distress from intentional infliction of emotional distress by making bodily harm or objective symptomatology a requirement of negligent but not intentional infliction of emotional distress.” Id. at 633-34 (internal citations omitted).
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS REQUIRES objective symptomatology
In Washington, the tort of negligent infliction of emotional distress requires the plaintiff to prove “he has suffered emotional distress by ‘objective symptomatology,’ and the ’emotional distress must be susceptible to medical diagnosis and proved through medical evidence.'” Id. at 633, 149 Wash.2d 192 (citing Hegel v. McMahon, 136 Wash.2d 122, 135, 960 P.2d 424 (1998)). “The symptoms of emotional distress must also constitute a diagnosable emotional disorder.” Id. (internal citation and quotation marks omitted).
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESs DOES NOT REQUIRE objective symptomatology
However, Washington State courts “have never applied the objective symptomatology requirement to intentional infliction of emotional distress.” Id. at 633 (citing Berger v. Sonneland, 144 Wash.2d 91, 113, 26 P.3d 257 (2001) (“Washington cases have limited the objective symptom requirement to negligent infliction of emotional distress claims.”); see also Brower v. Ackerley, 88 Wash.App. 87, 99-100, 943 P.2d 1141 (1997) (“No Washington case has incorporated [the objective symptomatology requirement] into the tort of outrage.”)) (alteration in original) (internal quotation marks omitted). “The basic elements remain unchanged since their adoption from the Restatement in Grimsby, and … [Washington courts] have not grafted an objective symptomatology requirement to them.” Id. (citingRobel v. Roundup Corp., 148 Wash.2d 35, 51, 59 P.3d 611 (2002)).
Accordingly, the Washington State Supreme Court has found, as follows:
Quite simply, objective symptomatology is not required to establish intentional infliction of emotional distress. The general rule is firmly established that physical injury or bodily harm—’objective symptomology’—is not a prerequisite to recovery of damages where intentional (and, in most states, reckless) emotional harm has been inflicted.
Id. (citing 4 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law of Torts § 16:17, at 1076 (1987)) (internal quotation marks omitted).
CONCLUSION
A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. The tort of outrage is one type of tort that is also known as intentional infliction of emotional distress; it “requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress.” Kloepfel, 66 P.3d at 632, 149 Wash.2d 192 (internal citations omitted). However, this tort “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id. Lastly, objective symptomatology is not required to establish the tort of outrage.
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We invite you to read more of our blog articles concerning this topic (for purposes of this section, “IIED” means “intentional infliction of emotional distress” or “tort of outrage”):
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.
Under Washington State law, what is the “after-acquired evidence doctrine” (hereinafter, “after-acquired evidence doctrine” or “Doctrine”) when applied to employment-discrimination law cases? 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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THE AFTER-ACQUIRED EVIDENCE DOCTRINE
In my plaintiff’s-side, employment-discrimination law practice, clients must occasionally address the after-acquired evidence doctrine. “The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee‘s termination had the employer known of the misconduct.” Lodis v. Corbis Holdings, Inc., 192 Wash.App. 30, 60, 366 P.3d 1246 (Wash. app. 2015), review denied, 185 Wash.2d 1038, 377 P.3d 744(Table) (Wash. 2016) (citing Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)) (internal quotation marks omitted).
Under the Doctrine, “[a]n employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee‘s misconduct, but only if it can prove by a preponderance of the evidence that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. (citing McKennon, 513 U.S. at 362-63) (emphasis added); accord Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999) (“adopting after-acquired evidence defense as articulated in McKennon“)).
CONCLUSION
If an employer discovers misconduct by a plaintiff-employee, then the after-acquired evidence doctrine can reduce that plaintiff’s lost-wage damages. Specifically, “An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee’s misconduct at the time.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.) (citing Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015)).
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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.)
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
…
(6) failure to state a claim upon which relief can be granted[ ]
CR 12(b)(6) (first emphasis in original). Thus, pleaders may assert the defense of “failure to state a claim upon which relief can be granted” by, inter alia, motion (hereinafter, “motion(s) to dismiss under CR 12(b)(6)” or “motion to dismiss”). Employment discrimination defendants (usually employers) typically file motions to dismiss under CR 12(b)(6) early in the case and file motions for summary judgment near the end of the case. There are significant differences between the two types of motions.
MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT
“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742 (Wash. 1977). “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id. (emphasis added).
HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)
“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)). Thus, “[t]he only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citingBarnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, 85 Wash.2d 52, 55, 530 P.2d 291 (1975)).
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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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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT
Disparate treatment is a legal theory that occurs “when an employer treats some people less favorably than others” because of membership in a protected class. SeeAlonso v. Qwest Communications Company*, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). “To esablish a prima facie* disparate treatment 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).
There are various formulations for the prima facie case of disparate treatment. In Washington State, “[t]he elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (remainder of footnote omitted) (hyperlinks added).
*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.
REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)
Plaintiff-employees typically use similarly-situated employees (also known as “comparators”) to show that their employer treats some employees less favorably than others based on one or more protected classes. Accordingly, to raise a reasonable inference of discrimination, a “[s]imilarly situated employee[ ] must have[:]
[1] the same supervisor,
[2] be subject to the same standards, and
[3] have engaged in the same conduct.
Id. (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)) (paragraph formatting added).
(NOTE: additional elements are required to establish a prima facie case of disparate treatment discrimination, however this article only addresses the “reasonable inference of discrimination” element.)
EXAMPLE: MARIN v. KING COUNTY
For example, in Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Plaintiff-employee Marin worked for King County as an operator at a wastewater treatment plant. Therein, Marin alleged King County unlawfully discriminated against him based on a variety of incidents. In one incident, Marin “did not follow the correct procedure to ‘lock out’ and ‘tag out’ a sewage pump.” Id. at 803. Consequently, Marin’s supervisor, Read, issued Marin a Teach/Lead/Coach memo, or TLC. “A TLC is not discipline, though management may base future discipline on a TLC.” Id. “Read saw it as a basic error for someone with Marin’s experience. Marin perceived Read to be yelling at him and became anxious.” Id. “Marin eventually gave notice he would retire in May 2011.” Id. at 804.
trial court
Thereafter, “Marin sued the County in July 2011[,] alleg[ing] six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.” Id. (footnote omitted). Inter alia, “[t]he trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id. at 801.
court of appeals — division one
Marin appealed the dismissal of his lawsuit. See id. at 801. On appeal, Division One, held that Marin failed to raise a reasonable inference of discrimination.
Different Supervisor
“Marin … contended the County treated him differently than a nonprotected employee, … Burton, who also made a lockout error. ” Id at 810. However, the Court found that “[e]ven if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor.” Id. (footnote omitted).
same treatment
The Court then found that “the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.” Id. It reasoned: “A reasonable employee would not interpret Marin’s TLC as setting ‘impossible or terrifying unique performance standards’ or threatening termination.”
HOLDING
Accordingly, the Court held that “the trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 810-11.
*NOTE: The link will take the reader to our Court Slips Blog – an external website.
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.
(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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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS
According to the canon of administrative-agency interpretations:
Generally, administrative agency interpretations of statutes are given great weight.
Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).
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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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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against an individual who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer‘s ability to conduct business.
READ THE LAW
Read all Title VII provisions to learn more. The link will take the reader to an external website — Cornell Law School (Legal Information Institute).
THE WASHINGTON LAW AGAINST DISCRIMINATION
The Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW, is distinct and separate from Title VII. The WLAD is a much broader state law that also protects against discrimination. Particularly:
Washington State Human Rights Commission Website, About Us (last visited 1/10/23) (emphasis added) (hyperlinks and asterisks added). Learn more about the WLAD by visiting the Washington State Human Rights Commission Website.
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
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ADDITIONAL EMPLOYER PROHIBITIONS
Title VII also prohibits employers from engaging in the following activities:
→ Harass an employee because of race, color, religion, sex (including sexual orientation and gender identity), or national origin;
→ Refuse or fail to make reasonable adjustments to workplace policies or practices that allow individual workers to observe their sincerely held religious beliefs;
→ Make employment decisions based on stereotypes or assumptions about a person’s abilities, traits, or performance because of their race, color, religion, sex (including sexual orientation and gender identity), or national origin;
→ Deny job opportunities because a person is married to, or associated with, a person of a particular race, color, religion, sex (including sexual orientation and gender identity), or national origin.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (hyperlink added).
THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Additional federal laws prohibit employment discrimination based on age, disability, and genetic information. “The U.S. Equal Employment Opportunity Commission (EEOC) is 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. E.E.O.C. Website, Overview (last visited 1/10/23).
If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our law office litigates claims under the Washington Law Against Discrimination, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
