LAW OFFICE OF GREGORY A. WILLIAMS

June 8, 2023October 21, 2024

Employment Reference Checks and Verifications (WA State)

Under Washington State laws, what are employer limitations when disclosing employee information in response to employment reference checks and verifications? Here’s my point of view.

(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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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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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.

June 5, 2023October 21, 2024

Employment Law 101: Discovery (WA State)

Under Washington State law, what does the term “discovery” mean within the context of pre-trial legal proceedings? Here’s my point of view.

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Introduction: Discovery (WA State)

Discovery stands as an integral component of the legal process in Washington State, as it does across the United States. This phase precedes trial and entails the exchange of information and evidence between parties involved in a lawsuit. This article will explore what discovery means within the context of Washington State jurisprudence, its critical role, and the primary methods employed to unearth important information during this crucial phase.

Objectives of Discovery

Within the framework of Washington State jurisprudence, discovery signifies the formal mechanism by which parties embroiled in a legal dispute acquire and share information, evidence, and documents pertinent to the case. Its objectives are manifold:

1. Transparent Disclosure:

Discovery ensures that all parties possess access to the same information, fostering transparency and impartiality in litigation.

2. Preparation for Trial:

It allows legal representatives to compile evidence, evaluate the merits and drawbacks of their case, and strategize for the impending trial.

3. Facilitating Settlement Negotiations:

Information amassed during the discovery process can facilitate settlement discussions by enabling parties to assess potential trial outcomes.

Significance of Discovery

Discovery carries immense weight in the legal process of Washington State for several compelling reasons:

1. Equity and Fairness:

It ensures that all parties have an equal footing in accessing and presenting evidence, thereby upholding fairness in legal proceedings.

2. Operational Efficiency:

Discovery helps streamline litigation by focusing on the core issues in dispute and preventing last-minute surprises during trial.

3. Catalyzing Settlements:

The information garnered through discovery frequently prompts negotiated settlements, ultimately conserving time and resources for all involved parties.

4. Enhanced Trial Preparedness:

Attorneys can construct more robust cases by understanding the strengths and weaknesses inherent in their own arguments as well as those of their adversaries.

Primary Methods

Similar to most U.S. jurisdictions, Washington State employs various methods for conducting discovery. The following are some principal methods:

1. Interrogatories:

Interrogatories involve the submission of written questions from one party to another. The receiving party must respond in writing, under oath. This method serves to extract information and obtain admissions regarding the case.

2. Requests for Production of Documents:

Parties can request the submission of specific documents, such as contracts, emails, or medical records, relevant to the lawsuit. These documents must be provided for examination and copying.

3. Depositions:

Depositions comprise sworn testimonies given by parties or witnesses in the presence of a court reporter. The recorded testimony can serve as evidence during the trial. Depositions enable more comprehensive questioning and clarification of information.

4. Requests for Admission:

With Requests for Admission (RFAs), one party can seek to compel the opposing party to admit or deny specific factual statements or the authenticity of documents. These admissions can simplify trial matters by narrowing the points in dispute.

5. Subpoenas:

Subpoenas are legal orders that mandate third parties, such as banks, employers, or medical providers, to produce documents or testify at a deposition. They constitute a valuable means of accessing information held by non-parties.

Conclusion

In Washington State jurisprudence, discovery constitutes a pivotal facet of the legal process, empowering parties to acquire information and evidence indispensable for resolving their disputes. By fostering transparency, aiding in trial preparation, and facilitating potential settlements, discovery contributes to the impartial and efficient administration of justice within the state’s court system. A comprehensive comprehension of the diverse methods and the significance of discovery is indispensable for anyone navigating the intricate legal terrain in Washington State.

Read Our Related Articles

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

» Employment Law 101: Depositions

» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Admission

» Employment Law 101: Requests for Production

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May 18, 2023October 21, 2024

WLAD Statute of Limitations

Under Washington State laws, what is the statute of limitations for claims under the Washington Law Against Discrimination (WLAD)? Here’s my point of view.

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

The WLAD, chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, citizenship or immigration status, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower[*] complaints.” Washington State Human Rights Commission Official Website, https://www.hum.wa.gov/about-us (last visited 5/3/23).

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

STATUTE OF LIMITATIONS

Definition

A “statute of limitations” is “[a] law that bars claims after a specified period; specif., a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered.” Black’s Law Dictionary 1451 (Deluxe 8th ed. 2004). “The purpose of such a statute is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Id. The Washington State statute concerning limitation of actions is contained under chapter 4.16 RCW.

THE WLAD Statute of Limitations (3 years)

The statute of limitations for commencing* a WLAD lawsuit is 3 years pursuant to RCW 4.16.080(2). See Lewis v. Lockheed Shipbuilding and Const. Co., 36 Wn.App. 607, 676 P.2d 545 (Wash.App. Div. 1 1984). “RCW 4.16.080 provides in relevant part:

Actions limited to three years. Within three years:

* * *

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated;

Lewis, 36 Wn.App. at 609, 676 P.2d 545 (hyperlink to external website and emphasis added).

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

FURTHER SUPPORT

“Further support for applying the 3-year statute [to the WLAD] is found in the Legislature’s directive that RCW 49.60 be liberally construed.” Id. (citing Franklin County Sheriff’s Office v. Sellers, 97 Wash.2d 317, 334, 646 P.2d 113 (1982), cert. denied, — U.S. —-, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Fahn v. Cowlitz County, 93 Wash.2d 368, 374, 610 P.2d 857 (1980)) (hyperlink to external website added).

WARNING

It can be a complicated and difficult process to determine when the statute of limitations begins to run for individual WLAD claims, and an improper determination can bar both claims for prospective lawsuits and administrative relief.

NOTE: Generally, the jurisdictional time limitation for filing WLAD and Title VII complaints of discrimination through administrative agencies such as the Washington State Human Rights Commission and the U.S. Equal Employment Opportunity Commission (EEOC), respectively, is much shorter than the statute of limitations for commencing WLAD and/or Title VII lawsuits through court — speak to an attorney to learn more.

Therefore, the reader is strongly encouraged to use the assistance of legal counsel to determine when the statute of limitations (or jurisdictional time limitation for administrative agencies) begins to run for individual WLAD claims — please see our DISCLAIMER.

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May 4, 2023October 21, 2024

WLAD Statute of Limitations: Equitable Tolling

Under Washington State law, what must a civil plaintiff demonstrate to obtain equitable tolling of the statute of limitations when pursuing a Washington Law Against Discrimination (hereinafter, “WLAD”) claim? Here’s my point of view.

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WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

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

STATUTE OF LIMITATIONS

“In Fowler v. Guerin, our [Washington State] Supreme Court explained that ‘statutes of limitation reflect the importance of finality and settled expectations in our civil justice system.'” Campeau v. Yakima HMA LLC, 38152-8-III (Wash. App. May 02, 2023) (citing Fowler v. Guerin, 200 Wn.2d 110, 118, 515 P.3d 502 (2022)). Accordingly, “[a] statutory time bar is a legislative declaration of public policy which the courts can do no less than respect, with rare equitable exceptions.” Id. (citing Fowler, 200 Wn.2d at 118, 515 P.3d 502) (alteration in original) (internal quotation marks omitted) (emphasis added).

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

“In civil cases, Washington has consistently required a plaintiff seeking equitable tolling of the statute of limitations to demonstrate [the following:]

(1) the plaintiff has exercised diligence,

(2) the defendant’s bad faith, false assurances, or deception interfered with the plaintiff’s timely filing,

(3) tolling is consistent with

(a) the purpose of the underlying statute and

(b) the purpose of the statute of limitations, and

(4) justice requires tolling the statute of limitations.

Campeau, 38152-8-III (citing Fowler, 200 Wn.2d at 125, 515 P.3d 502 (“describing the four predicates as the Millay standard[, Millay v. Cam, 135 Wn.2d 193, 955 P.2d 791 (1988)]”)) (emphasis added).

However, Washington courts have “cautioned against broadly applying equitable tolling in a manner that would substitute for a positive rule established by the legislature a variable rule of decision based upon individual ideas of justice.” Id. (citing Fowler, 200 Wn.2d at 119, 515 P.3d 502) (internal citation and quotation marks omitted).

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April 27, 2023October 21, 2024

Illegal Contracts in Washington State

Under Washington State law, are illegal contracts enforceable when they are in conflict with a statutory law? Here’s my point of view.

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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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April 20, 2023October 21, 2024

WA State Human Rights Commission: Functions, Powers, and Duties

Under Washington State laws, what are certain functions, powers, and duties of the Washington State Human Rights Commission (“WSHRC”)? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

The Washington Law Against Discrimination (“WLAD”), Chapter 49.60 RCW, “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower* complaints.” WSHRC Official Website, last accessed 4/19/23 (emphasis and hyperlinks added).

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

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.

RCW 49.60.120 (emphasis added).

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

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Remedies for Breach of Conciliation Agreements**

» The Intersection of WSHRC and EEOC**

» The Washington State Human Rights Commission**

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

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

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April 13, 2023November 27, 2024

The Local Government Tort-Claim Filing Statute: Guiding Policies

Under Washington State law, what are the guiding policies (i.e., purposes) of the local government tort-claim filing statute? Here’s my point of view.

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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 (citing Medina v. Pub. Util. Dist. No. 1, 147 Wash.2d 303, 310, 53 P.3d 993 (2002)) (emphasis added).

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April 6, 2023October 21, 2024

The Tort of Outrage

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.

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**THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)**

(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. (citing Grimsby, 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. (citing Robel 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.

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”):

» IIED & Supervisors*

» IIED, Vicarious Liability & Proscribing Bad Behavior*

» The Tort of Outrage and Racially Discriminatory Action

» WA Tort of Outrage: A Brief History*

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

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March 30, 2023October 21, 2024

The After-Acquired Evidence Doctrine

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.

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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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March 23, 2023October 21, 2024

Motion to Dismiss Under CR 12(b)(6)

Under Washington State court rules, how do judges generally address a motion to dismiss under CR 12(b)(6)? Here’s my point of view.

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WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

Pursuant to the Washington State Superior Court Civil Rules (hereinafter, “CR”), a motion to dismiss under CR 12(b)(6) may be presented as follows:

(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. (citing Barnum 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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March 16, 2023October 21, 2024

Reasonable Inference of Discrimination and Similarly Situated Employees

Under the Washington Law Against Discrimination, how does a plaintiff establish similarly situated employees for purposes of raising a reasonable inference of discrimination? Here’s my point of view.

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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. See Alonso 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.

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case**

» Disparate Treatment

» Disparate Treatment: Bona Fide Occupational Qualification**

» Disparate Treatment via Hostile Work Environment**

» McDonnell Douglas Framework (Step 1): The Prima Facie Case**

» Prima Facie Case: The Replacement Element**

» The Prima Facie Case: Disparate Treatment via Direct Evidence

» WLAD: Disparate Treatment via Hostile Work Environment

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

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February 16, 2023October 21, 2024

Canon of Administrative-Agency Interpretations

Under Washington State canons of statutory construction, what is the canon of administrative-agency interpretations? Here’s my point of view.

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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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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

January 12, 2023October 21, 2024

Title VII of the Civil Rights Act of 1964

Under federal laws, how does Title VII of the Civil Rights Act of 1964 protect employees against employment discrimination? Here’s my point of view.

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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:

[The Washington Law Against Discrimination, ]Chapter 49.60 RCW[,] is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower* complaints.

Washington State Human Rights Commission 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.

(*The “whistleblower” link refers the visitor to our external website: Williams Law Group Blog.)

SCOPE OF TITLE VII

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:

Under Title VII, employers also cannot:

→ 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).

Learn more about filing a charge of discrimination with the EEOC by visiting their official website.

We invite you to read more of our related blog articles:

» EEOC: The Notice of Right to Sue

» Fair Employment Practice Agencies

» The Intersection of WSHRC and EEOC*

» Unlawful Employment Agency Practices (Title VII)

» Washington Law Against Discrimination is Potent*

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

need help?

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.

January 5, 2023October 21, 2024

The Retainer Fee (WA State)

Under Washington State laws, what is a retainer fee? Here’s my point of view.

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WASHINGTON STATE COURT RULES: RULES OF PROFESSIONAL CONDUCT

The Washington State Rules of Professional Conduct (RPC) guide attorneys in their practice of law by, inter alia, regulating their professional conduct. According to the RPC — Fundamental Principles of Professional Conduct:

…

The Rules of Professional Conduct point the way to the aspiring lawyer and provide standards by which to judge the transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

RPC, Fundamental Principles of Professional Conduct. One of the primary topics under the RPC is “Fees,” and one common type of fee is the retainer fee.

RPC 1.5: THE RETAINER FEE

The retainer fee “is a fee that a client pays to a lawyer to be available to the client during a specified period or on a specified matter, in addition to and apart from any compensation for legal services performed.” RPC 1.5. Importantly, a retainer fee:

• must be agreed to in writing.

• must be signed by the client.

• is the lawyer’s property as soon as it is received and is not to be put into the lawyer’s trust account, unless otherwise agreed.

See id. This fee structure is sometimes referred to as an “availability retainer,” “engagement retainer,” “true retainer,” “general retainer,” or “classic retainer.” See id. (Washington Comment 13).

RETAINER FEE SECURES AVAILABILITY ALONE

As mentioned above, retainer fees in Washington State are also known as “availability retainers.” That’s because “[a] retainer secures availability alone, i.e., it presumes that the lawyer is to be additionally compensated for any actual work performed.” Id. (Washington Comment 13). Thus, “a payment purportedly made to secure a lawyer’s availability, but that will be applied to the client’s account as the lawyer renders services, is not a retainer under … [RPC 1.5](f)(1).” Id. (Washington Comment 13).

GOOD PRACTICES

For those drafting retainers, “[a] written retainer agreement should clearly specify the time period or purpose of the lawyer’s availability, that the client will be separately charged for any services provided, and that the lawyer will treat the payment as the lawyer’s property immediately on receipt and will not deposit the fee into a trust account.” Id. (Washington Comment 13).

CONCLUSION

A retainer fee “is a fee that a client pays to a lawyer to be available to the client during a specified period or on a specified matter, in addition to and apart from any compensation for legal services performed.” Id.

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

» The Contingency Fee (WA State)

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

December 29, 2022October 21, 2024

The Contingency Fee (WA State)

Under Washington State laws, what is an attorney’s contingency fee? Here’s my point of view.

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WASHINGTON STATE COURT RULES: RULES OF PROFESSIONAL CONDUCT

The Washington State Rules of Professional Conduct (RPC) guide attorneys in their practice of law by, inter alia, regulating their ethical conduct. According to the RPC — Fundamental Principles of Professional Conduct:

…

RPC, Fundamental Principles of Professional Conduct. One of the primary topics under the RPC is “Fees,” and one common type of fee is the contingency fee.

RPC 1.5: THE CONTINGENCY FEE

The contingency fee is regulated by RPC 1.5. Accordingly, an attorney’s fee “may be contingent on the outcome of a matter for which the service is rendered.” See id. The relevant portions of that RPC describe the contingency fee in detail, as follows:

…

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. If a fee is contingent on the outcome of a matter, a lawyer shall comply with the following

(1) A contingent fee agreement shall be in a writing signed by the client;

(2) A contingent fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable, whether or not the client is the prevailing party;

(3) upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination; and

(4) a contingent fee consisting of a percentage of the monetary amount recovered for a claimant, in which all or part of the recovery is to be paid in the future, shall be paid only

(i) by applying the percentage to the amounts recovered as they are received by the client; or

(ii) by applying the percentage to the actual cost of the settlement or award to the defendant.

RPC 1.5(c).

CONTINGENCY FEE LIMITATIONS

The contingency fee has limitations. One limitation prohibits lawyers in Washington from entering into contingency fee agreements for domestic relations and criminal defense cases under certain circumstances. The relevant rule follows:

…

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a dissolution or annulment of marriage or upon the amount of maintenance or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

RPC 1.5(d)

CONCLUSION

Under RPC 1.5 (Fees), an attorney may charge a contingency fee: meaning, one that is “contingent on the outcome of a matter for which the service is rendered.” See RPC 1.5. However, an attorney may not charge a contingency fee for domestic relations and criminal defense cases under certain circumstances.

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

» The Retainer Fee (WA State)

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

December 22, 2022October 21, 2024

Canon of Constitutional Presumption

Under Washington State canons of statutory construction, what is the canon of constitutional presumption? Here’s my point of view.

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THE CANON OF CONSTITUTIONAL PRESUMPTION

According to the canon of constitutional presumption, Washington courts “presume statutes are constitutional, and the party challenging constitutionality bears the burden of proving otherwise.” Woods v. Seattle’s Union Gospel Mission, 481 P.3d 1060, 1064 (Wash. 2021) (citing Amunrud v. Bd. of Appeals , 158 Wash.2d 208, 215, 143 P.3d 571 (2006), overruled in part by Chong Yim v. City of Seattle, 194 Wash.2d 682, 451 P.3d 694 (2019)).

There are two types of lawsuits that challenge the constitutionality of a statute: (1) the as-applied challenge; and (2) the facial challenge.

THE AS-APPLIED CHALLENGE

The as-applied challenge to the constitutional validity of a statute is based on “a party’s allegation that application of the statute in the specific context of the party’s actions or intended actions is unconstitutional.” Id. (alteration in original) (internal citation and quotation marks omitted). According to the Washington Supreme Court in Woods, “Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated.” Id. (internal citation and quotation marks omitted).

THE FACIAL CHALLENGE

A facial challenge is a claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally. To ascertain whether a law is facially invalid, “courts must be careful not to exceed the facial requirements and speculate about hypothetical cases.” Id. (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008)). Washington courts generally disfavor facial claims. See id. (citing State v. McCuistion, 174 Wash.2d 369, 389, 275 P.3d 1092 (2012). Accordingly, a “facial challenge must be rejected unless there is no set of circumstances in which the statute[, as currently written,] can constitutionally be applied.” Id. (In re Det. of Turay , 139 Wash.2d 379, 417 n.27, 986 P.2d 790 (1999) (emphasis and alteration in original) (internal citation and quotation marks omitted).

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

December 15, 2022October 21, 2024

Negligent Retention (WA State)

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

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NEGLIGENT RETENTION IN WASHINGTON STATE

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

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

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

NEGLIGENT RETENTION VS. NEGLIGENT HIRING

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

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

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

CONCLUSION

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

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

» Negligent Hiring (WA State)

» Negligent Supervision (WA State)

need help?

If you need legal help, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

December 1, 2022October 21, 2024

EEOC: The Notice of Right to Sue

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

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

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

eeoc functions

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

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

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

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

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

THE 90-DAY NOTICE OF RIGHT TO SUE

Charge Filing

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

Notice of Right to Sue

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

90-Day Limitation

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

Federal Government Employees and Applicants

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

EXCEPTIONS WHEN FILING A LAWSUIT

Age Discrimination Lawsuits (ADEA)

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

Equal Pay Lawsuits (EPA)

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

Filing a Lawsuit Before Investigation is Completed

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

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HOW TO REQUEST A NOTICE OF RIGHT TO SUE

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

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

Before 180 Days Have Passed

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

After 180 Days Have Passed

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

CONCLUSION

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

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

Using Circumstantial Evidence to Prove Employment Discrimination

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

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

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

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

It is an unfair practice for any employer:

[REFUSE TO HIRE]

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

[dISCHARGE OR BAR FROM EMPLOYMENT]

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

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

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

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

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

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

USING CIRCUMSTANTIAL, INDIRECT EVIDENCE TO PROVE EMPLOYMENT DISCRIMINATION

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

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

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

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

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

STEP 1 – prima facie case

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

STEP 2 – LEGITIMATE NONDISCRIMINATORY REASON

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

STEP 3 – PRETEXT

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

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

WLAD REMEDIES

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

CONCLUSION

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

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November 17, 2022October 21, 2024

Employment-Discrimination Hotlines & Unlawful Retaliation

Employee-Discrimination Hotlines: Use Caution

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

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES

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

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

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

UNLAWFUL RETALIATION (WA STATE)

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

THE PRIMA FACIE CASE

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

(1) he engaged in statutorily protected activity,

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

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

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

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

ELEMENT #1: STUTORILY PROTECTED ACTIVITY

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

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

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

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

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

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

CONCLUSION

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

Unlawful Retaliation: The Causal Link

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

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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

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

(1) the employee took a statutorily protected action,

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

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

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

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

ELEMENT #3: PROVING THE CAUSAL LINK

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

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

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

Fair Employment Practice Agencies

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

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THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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

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

DEFINITION OF EMPLOYER

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

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

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

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

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

FAIR EMPLOYMENT PRACTICES AGENCIES (FEPAs)

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

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

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

Job Applicants and Criminal Records (WA State)

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

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DEFINITIONS

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

…

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

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

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

RCW 49.94.005.

THE WASHINGTON FAIR CHANCE ACT — RCW 49.94

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

RCW 49.94.010

Inquiries about criminal records—Timing—Advertisements—Exceptions.

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

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

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

(4) This section does not apply to:

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

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

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

(d) An employer seeking a nonemployee volunteer; or

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

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

LIMITATIONS

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

RCW 49.94.020

Limitations on application of chapter.

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

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

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

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

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

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

RCW 49.94.020.

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ENFORCEMENT & PENALTIES

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

RCW 49.94.030

Attorney general’s enforcement powers—Penalties.

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

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

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

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

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

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

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

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

RCW 49.94.030.

CONFLICTS WITH FEDERAL REQUIREMENTS

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

RCW 49.94.900

Conflict with federal requirements—2018 c 38.

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

RCW 49.94.900.

THE COMPLAINT PROCESS

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

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September 29, 2022October 21, 2024

Failure to Mitigate Damages (WA State)

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

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MITIGATING DAMAGES

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

AFFIRMATIVE DEFENSES

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

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

FAILURE TO MITIGATE DAMAGES

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

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

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

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

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

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

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

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

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

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

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

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

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September 8, 2022October 21, 2024

WA State Human Rights Commission Complaints

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

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

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

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

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): COMPLAINTS

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

Investigations

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

Eliminating Unfair Practices

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

WHO MAY FILE A COMPLAINT WITH THE WSHRC

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

(1) Who may file a complaint:

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

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

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

RCW 49.60.230 (emphasis and hyperlinks added).

READ OUR RELATED ARTICLES

» Definition of Commission (WLAD)

» Remedies for Breach of Conciliation Agreements**

» The Intersection of WSHRC and EEOC**

» The Washington State Human Rights Commission**

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Functions, Powers, Duties

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

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

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

WRITTEN RECORDS

REBUTTING THE PRESUMPTION OF GOOD FAITH

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Introduction: Discovery (WA State)

Objectives of Discovery

1. Transparent Disclosure:

2. Preparation for Trial:

3. Facilitating Settlement Negotiations:

Significance of Discovery

1. Equity and Fairness:

2. Operational Efficiency:

3. Catalyzing Settlements:

4. Enhanced Trial Preparedness:

Primary Methods

1. Interrogatories:

2. Requests for Production of Documents:

3. Depositions:

4. Requests for Admission:

5. Subpoenas:

Conclusion

Read Our Related Articles

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THE WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

STATUTE OF LIMITATIONS

Definition

THE WLAD Statute of Limitations (3 years)

FURTHER SUPPORT

WARNING

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WLAD STATUTE OF LIMITATIONS: EQUITABLE TOLLING

THE WLAD

STATUTE OF LIMITATIONS

eQUITABLE TOLLING (WA state): tHE MILLAY STANDARD

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ILLEGAL CONTRACTS IN WASHINGTON STATE

EXAMPLE: STATE v. PELKEY

CONCLUSION

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT

WA STATE HUMAN RIGHTS COMMISSION (WSHRC): CERTAIN FUNCTIONS, POWERS, AND DUTIES

RCW 49.60.120

Certain powers and duties of commission.

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LOCAL GOVERNMENT TORT-CLAIM FILING STATUTE

RCW 4.96.010 Tortious conduct of local governmental entities—Liability for damages.

THE 60-DAY REQUIREMENT

RCW 4.96.020 Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

GUIDING POLICIES

the CLAIM FILING STATUTE

The TORT CLAIM

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THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

LEVEL OF OUTRAGE

MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSIONS, OR OTHER TRIVIALITIES NOT ENOUGH

OBJECTIVE SYMPTOMATOLOGY

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS REQUIRES objective symptomatology

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESs DOES NOT REQUIRE objective symptomatology

CONCLUSION

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THE AFTER-ACQUIRED EVIDENCE DOCTRINE

CONCLUSION

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WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)

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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT

REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)

EXAMPLE: MARIN v. KING COUNTY

trial court

court of appeals — division one

Different Supervisor

same treatment

HOLDING

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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

RCW 4.96.010
Tortious conduct of local governmental entities—Liability for damages.

RCW 4.96.020
Tortious conduct of local governmental entities and their agents—Claims—Presentment and filing—Contents.

**THE TORT OF OUTRAGE (ALSO KNOWN AS INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)**