Under Washington State law, what is the “after-acquired evidence doctrine” (hereinafter, “after-acquired evidence doctrine” or “Doctrine”) when applied to employment-discrimination law cases? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE AFTER-ACQUIRED EVIDENCE DOCTRINE
In my plaintiff’s-side, employment-discrimination law practice, clients must occasionally address the after-acquired evidence doctrine. “The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee‘s termination had the employer known of the misconduct.” Lodis v. Corbis Holdings, Inc., 192 Wash.App. 30, 60, 366 P.3d 1246 (Wash. app. 2015), review denied, 185 Wash.2d 1038, 377 P.3d 744(Table) (Wash. 2016) (citing Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 360-63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)) (internal quotation marks omitted).
Under the Doctrine, “[a]n employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee‘s misconduct, but only if it can prove by a preponderance of the evidence that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. (citing McKennon, 513 U.S. at 362-63) (emphasis added); accord Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999) (“adopting after-acquired evidence defense as articulated in McKennon“)).
CONCLUSION
If an employer discovers misconduct by a plaintiff-employee, then the after-acquired evidence doctrine can reduce that plaintiff’s lost-wage damages. Specifically, “An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee’s misconduct at the time.” 6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.) (citing Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015)).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
…
(6) failure to state a claim upon which relief can be granted[ ]
CR 12(b)(6) (first emphasis in original). Thus, pleaders may assert the defense of “failure to state a claim upon which relief can be granted” by, inter alia, motion (hereinafter, “motion(s) to dismiss under CR 12(b)(6)” or “motion to dismiss”). Employment discrimination defendants (usually employers) typically file motions to dismiss under CR 12(b)(6) early in the case and file motions for summary judgment near the end of the case. There are significant differences between the two types of motions.
MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT
“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742 (Wash. 1977). “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id. (emphasis added).
HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)
“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)). Thus, “[t]he only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citingBarnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, 85 Wash.2d 52, 55, 530 P.2d 291 (1975)).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON LAW AGAINST DISCRIMINATION: DISPARATE TREATMENT
Disparate treatment is a legal theory that occurs “when an employer treats some people less favorably than others” because of membership in a protected class. SeeAlonso v. Qwest Communications Company*, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). “To esablish a prima facie* disparate treatment case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added).
There are various formulations for the prima facie case of disparate treatment. In Washington State, “[t]he elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)) (remainder of footnote omitted) (hyperlinks added).
*NOTE: The link will take the reader to either our Court Slips Blog or our Williams Law Group Blog – external websites.
REASONABLE INFERENCE OF DISCRIMINATION — SIMILARLY SITUATED EMPLOYEES (COMPARATORS)
Plaintiff-employees typically use similarly-situated employees (also known as “comparators”) to show that their employer treats some employees less favorably than others based on one or more protected classes. Accordingly, to raise a reasonable inference of discrimination, a “[s]imilarly situated employee[ ] must have[:]
[1] the same supervisor,
[2] be subject to the same standards, and
[3] have engaged in the same conduct.
Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 475 n.16, 98 P.3d 827 (2004); see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)) (paragraph formatting added).
(NOTE: additional elements are required to establish a prima facie case of disparate treatment discrimination, however this article only addresses the “reasonable inference of discrimination” element.)
EXAMPLE: MARIN v. KING COUNTY
For example, in Marin v. King County*, 194 Wn.App. 795, 808 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Plaintiff-employee Marin worked for King County as an operator at a wastewater treatment plant. Therein, Marin alleged King County unlawfully discriminated against him based on a variety of incidents. In one incident, Marin “did not follow the correct procedure to ‘lock out’ and ‘tag out’ a sewage pump.” Id. at 803. Consequently, Marin’s supervisor, Read, issued Marin a Teach/Lead/Coach memo, or TLC. “A TLC is not discipline, though management may base future discipline on a TLC.” Id. “Read saw it as a basic error for someone with Marin’s experience. Marin perceived Read to be yelling at him and became anxious.” Id. “Marin eventually gave notice he would retire in May 2011.” Id. at 804.
trial court
Thereafter, “Marin sued the County in July 2011[,] alleg[ing] six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.” Id. (footnote omitted). Inter alia, “[t]he trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id. at 801.
court of appeals — division one
Marin appealed the dismissal of his lawsuit. See id. at 801. On appeal, Division One, held that Marin failed to raise a reasonable inference of discrimination.
Different Supervisor
“Marin … contended the County treated him differently than a nonprotected employee, … Burton, who also made a lockout error. ” Id at 810. However, the Court found that “[e]ven if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor.” Id. (footnote omitted).
same treatment
The Court then found that “the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.” Id. It reasoned: “A reasonable employee would not interpret Marin’s TLC as setting ‘impossible or terrifying unique performance standards’ or threatening termination.”
HOLDING
Accordingly, the Court held that “the trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 810-11.
*NOTE: The link will take the reader to our Court Slips Blog – an external website.
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS
According to the canon of administrative-agency interpretations:
Generally, administrative agency interpretations of statutes are given great weight.
Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) is a crucial federal law that protects certain individuals (including employees) against certain types of discrimination and retaliation; it also safeguards certain types of accommodations.
Discrimination & protected classes
Title VII outlaws discrimination against individuals on the basis of race, color, religion, national origin, or sex (including pregnancy and related conditions, sexual orientation, and gender identity). The law “also makes it unlawful to use policies or practices that seem neutral but have the effect of discriminating against people because of their race, color, religion, sex (including pregnancy and related conditions, sexual orientation, and gender identity), or national origin.” U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
AGE & DISABILITY: Other federal laws protect against age discrimination (i.e., Age Discrimination in Employment Act or “ADEA”) and disability discrimination (i.e., Americans with Disabilities Act or “ADA”). However, this article will address solely Title VII.
Retaliation
Retaliation against an individual who has reported discrimination, filed a charge of discrimination, or taken part in an employment discrimination investigation or litigation is likewise prohibited by Title VII.
Reasonable Accommodations
Lastly, applicants’ and employees’ genuinely held religious practices must be reasonably accommodated by employers under the legislation, unless doing so would put an undue burden on the employer‘s ability to conduct business.
READ THE LAW
Read all Title VII provisions to learn more. The link will take the reader to an external website — Cornell Law School (Legal Information Institute).
THE WASHINGTON LAW AGAINST DISCRIMINATION
The Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW, is distinct and separate from Title VII. The WLAD is a much broader state law that also protects against discrimination. Particularly:
Washington State Human Rights Commission Website, About Us (last visited 1/10/23) (emphasis added) (hyperlinks and asterisks added). Learn more about the WLAD by visiting the Washington State Human Rights Commission Website.
Title VII applies to certain employers (both private and public with 15 or more employees), employment agencies, labor organizations, and training programs and makes it “unlawful to discriminate in any aspect of employment, including:
• Hiring and firing; • Compensation, assignment, or classification of workers; • Transfer, promotion, layoff, or recall; • Job advertisements and recruitment; • Testing; • Use of employer facilities; • Training and apprenticeship programs; • Retirement plans, leave, and benefits; or • Other terms and conditions of employment.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23).
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ADDITIONAL EMPLOYER PROHIBITIONS
Title VII also prohibits employers from engaging in the following activities:
→ Harass an employee because of race, color, religion, sex (including sexual orientation and gender identity), or national origin;
→ Refuse or fail to make reasonable adjustments to workplace policies or practices that allow individual workers to observe their sincerely held religious beliefs;
→ Make employment decisions based on stereotypes or assumptions about a person’s abilities, traits, or performance because of their race, color, religion, sex (including sexual orientation and gender identity), or national origin;
→ Deny job opportunities because a person is married to, or associated with, a person of a particular race, color, religion, sex (including sexual orientation and gender identity), or national origin.
U.S. Department of Justice Website, Laws We Enforce (last visited 1/10/23) (hyperlink added).
THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Additional federal laws prohibit employment discrimination based on age, disability, and genetic information. “The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
If you need legal help, then consider contacting an experienced employment attorney to discuss your case; our law office litigates claims under the Washington Law Against Discrimination, Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
Under Washington State laws, what is a retainer fee? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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WASHINGTON STATE 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.
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.
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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:
…
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.
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.
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.
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.
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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. (citingWash. 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).
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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.
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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.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE 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.
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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.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE 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:
(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.
[DISCRIMINATE IN COMPENSATION OR IN OTHER TERMS/CONDITIONS OF EMPLOYMENT]
(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.
[STATEMENTS, ADVERTISEMENTS, PUBLICATIONS, APPLICATIONS FOR EMPLOYMENT, INQUIRIES IN CONNECTION WITH PROSPECTIVE EMPLOYMENT]
(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.
“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 (citingMikkelsen*, 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).
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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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.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD) — PROTECTED STATUSES
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[:]
(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.
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*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
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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.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)
(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).
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*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
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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.
Under the United States Equal Employment Opportunity Commission laws and regulations, what are Fair Employment Practice Agencies? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE 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.
(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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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.
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.
(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.
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.
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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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
Under Washington State law, what is the failure-to-mitigate-damages affirmative defense and how is it typically applied in Washington State employment-discrimination cases? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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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.
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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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
Under the Washington Law Against Discrimination (WLAD), who may file WA State Human Rights Commission (WSHRC) complaints? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): EMPLOYMENT
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:
(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.
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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CLAIM SPLITTING
The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.” Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment).
RES JUDICATA
The theory of dismissal based upon claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); see also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action) (hyperlink added). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred.
DISMISSAL BASED ON RES JUDICATA
Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects:
(1) persons and parties;
(2) cause of action;
(3) subject matter; and
(4) quality of the persons for or against whom the claim is made.
Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted) (paragraph formatting added). This res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (Wash. 2004).
However, the Washington State Supreme Court has been abundantly clear: “[R]es judicata does not bar claims arising out of different causes of action, or intend to deny the litigant his or her day in court.” Id at 865, 93 P.3d 108 (hyperlink added). Ultimately, res judicata will not apply until there has been a final judicial judgment. See Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).
CONCLUSION
Dismissal on the basis of res judicata (also known as claim splitting) is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): UNLWAFUL EMPLOYER COMMUNICATIONS & PREEMPLOYMENT ACTIVITIES
The Washington Law Against Discrimination, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. The relevant text is as follows:
(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, 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, advertising in a foreign language is not prohibited.
RCW 49.60.180(4) (hyperlinks and emphasis added). This is not an exhaustive recitation of the law on this subject. See chapter 49.60 RCW.
REMEDIES FOR UNFAIR PRACTICES
Typically, any person deeming himself or herself injured by their employer–as strictly defined by RCW 49.60.040(11)–as a result of its commission of an unfair practice is entitled to the following:
[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 Washington Law Against Discrimination 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.).
The WLAD, subsection 49.60.180(4) RCW, regulates (1) employer statements, advertisements, and publications; (2) employer applications for employment; and (3) employer inquiries in connection with prospective employment. Accordingly, employers are prohibited from engaging in any of these activities if they express any limitation, specification, or discrimination as to a protected class or any intent to make any such limitation, specification, or discrimination.
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Under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the fourth element–imputing harassment to employer–when pursuing a claim of hostile work environment? 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.)
It is also an unfair practice for an employer to retaliate (i.e., discharge, expel, or otherwise discriminate) against person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.
In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlinks added); see alsoGlasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) . This article will address the fourth element: that harassment can be imputed to the employer.
ELEMENT 4: IMPUTING HARASSMENT TO EMPLOYERS
In Glasgow v. Georgia-Pacific Corp., the Washington State Supreme Court explained how to impute harassment to employers, as follows:
[A. Owners, Managers, Partners or Corporate Officers:]
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.
[B. Supervisors or Co-Workers:]
To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
This my be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of … harassment [based on a protected class] at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonable calculated to end the harassment. . . .
[C. Avoiding Liability:]
[A]n employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being . . . harassed [based on a protected class].
Id. at 407-08 (emphasis and paragraph formatting added) (last alteration in original).
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Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does one establish the first element of the prima facie case for hostile work environment: the unwelcome element? 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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HOSTILE WORK ENVIRONMENT (HARASSMENT): THE PRIMA FACIE CASE
In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlinks added); see alsoGlasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) .
ELEMENT 1: HARASSMENT WAS UNWELCOME
To establish unwelcome conduct, “the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive.” Id. (hyperlink added).
Typically, an employee’s properly drafted and submitted internal complaints about the harassment–based on a protected class–are evidence that the employee subjectively believed he/she was being harassed. Thus, such complaints can be a powerful step in establishing this element. NOTE: There are other methods of proof that are beyond the scope of this article. In any event, it’s always possible that unintended consequences may result (e.g., write-ups, termination, etc.); accordingly, it is advisable for employees to proceed with caution and promptly seek legal counsel before taking action.
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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CONSTRUCTIVE DISCHARGE (OBJECTIVE STANDARD)
“To establish constructive discharge, an employee must show that an employer engaged in a deliberate act, or a pattern of conduct, that made working conditions so intolerable that a reasonable person would have felt compelled to resign.” Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485 (Div. 2 2013) (citing Sneed v. Barna, 80 Wn.App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wn.2d 1023, 919 P.2d 600 (1996)).
“This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant.” Id. (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wn.App. 542, 551, 85 P.3d 959 (2004)) (internal quotation marks omitted).
EFFECTIVE DATE
“A constructive discharge becomes effective on either[:]
[1] the date the employee gives notice to the employer or
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)
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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 someone 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.
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) (emphasis added).
UNLAWFUL EMPLOYMENT AGENCY PRACTICES
Employment agencies are subject to Title VII. The following are considered unlawful employment agency practices:
…
(b) Employment agency practices
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(b) (emphasis added). Victims of discrimination in violation of Title VII may seek enforcement through the United States Equal Employment Opportunity Commission.
“The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” U.S. E.E.O.C. Website, Overview (last visited 1/10/23).
If you need help with your employment issue, then consider a consultation with an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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THE DOCTRINE OF STARE DECISIS
The doctrine of stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” State v. Johnson, 188 Wn.2d 742, 756, 399 P.3d 507 (2017) (internal citations and quotation marks omitted). It is a “doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” State v. Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016) (citing In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)) (internal quotation marks omitted).
The court will typically consider a party’s request for it to reject its prior decision when it’s based upon either one or both of the following two approaches: (1) clear showing; and (2) intervening authority. See State v. Otton, 185 Wn.2d at 678 (internal citations and quotation marks omitted).
1. The Clear-Showing Approach
The clear-showing approach is far more common than the intervening-authority approach, and it requires the requesting party to clearly show the following:
a. That the established rule is incorrect; and
b. That the established rule is harmful.
See id. (internal citations and quotation marks omitted) (emphasis added).
2. The Intervening-Authority Approach
The intervening-authority approach is relatively rare. The requesting party essentially asks the court to “eschew prior precedent in deference to intervening authority where the legal underpinnings of … [the court’s] precedent have changed or disappeared altogether.” See id. (citing W.G. Clark Constr. Co. v. P. Nw. Reg’l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (internal citations and quotation marks omitted).
FRAMING THE ISSUE
When a party asks the Washington State Supreme Court to reject its prior decision, “it is an invitation … [it] … [does] not take lightly.” Id. (citing State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011)) (internal quotation marks omitted). According to the court, the issue is framed as follows:
The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent–” ‘promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.'”
Otton, 185 Wn.2d at 678 (citing Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997)) (internal citation omitted) (alteration to original) (emphasis added).
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(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted) (emphasis added). This last requirement is know as the prextext prong.
THE PRETEXT PRONG
Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant’s articulated reasons
(1) had no basis in fact,
(2) were not really motivating factors for its decision,
(3) were not temporally connected to the adverse employment action, or
(4) were not motivating factors in employment decisions for other employees in the same circumstances.
Id. (internal citation omitted) (emphasis and paragraph formatting added). The fourth element allows a plaintiff to prove pretext by using comparison.
PROVING PRETEXT BY COMPARISON
Accordingly, to prove pretext by comparison in Washington State, a plaintiff must show that
Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.1994)) (paragraph formatting added).
Arguably, acts of comparable seriousness need not be violations of identical company disciplinary rules. See, e.g., Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (Court previously held that “acts of comparable seriousness need not be violations of identical company disciplinary rules”) (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted).
OCCASIONAL LENIENCY NOT ENOUGH
However, plaintiffs may need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, “incomplete or arbitrary comparisons reveal nothing concerning discrimination.” Id. (internal citations omitted).
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