The Rundown

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The Hate Crime Offense (WA State)

The Hate Crime Offense (WA State)

Under Washington State laws, what is the hate crime offense? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our external blog or an official governmental website. 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 Hate Crime Offense (WA State)

The Hate Crime Offense (WA State)

In Washington State, “[a] person is guilty of a hate crime offense if the person maliciously and intentionally commits one of the following acts because of their perception of another person’s race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability:

(a) Assaults another person;

(b) Causes physical damage to or destruction of the property of another; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property.

The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same gender expression or identity, or the same mental, physical, or sensory disability as the victim.

Words alone do not constitute a hate crime offense unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute a hate crime offense if it is apparent to the victim that the person does not have the ability to carry out the threat.

RCW 9A.36.080(1)* (emphasis and paragraph formatting added). For purposes of this article, the above law may also be referred to as “subsection (1).”

NOTE: “It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, had a particular gender expression or identity, or had a mental, physical, or sensory disability.” RCW 9A.36.080(3)*.

A Class C Felony

“Commission of a hate crime offense is a class C felony.” RCW 9A.36.080(7)*. And the associated penalties “do not preclude the victims from seeking any other remedies otherwise available under law.” See RCW 9A.36.080(8)*.

Definitions

For the purposes of the hate crime offense, the following definitions apply:

(a) “Gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

(b) “Sexual orientation” means heterosexuality, homosexuality, or bisexuality.

(c) “Threat” means to communicate, directly or indirectly, the intent to:

(i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or

(ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.

RCW 9A.36.080(6)*.

Prosecution — Permissible Inferences

“In any prosecution for a hate crime offense, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, gender expression or identity, or mental, physical, or sensory disability if the person commits one of the following acts:

(a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage;

(b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a Nazi emblem, symbol, or hakenkreuz;

(c) Defaces religious real property with words, symbols, or items that are derogatory to persons of the faith associated with the property;

(d) Places a vandalized or defaced religious item or scripture on the property of a victim who is or whom the actor perceives to be of the faith with which that item or scripture is associated;

(e) Damages, destroys, or defaces religious garb or other faith-based attire belonging to the victim or attempts to or successfully removes religious garb or other faith-based attire from the victim’s person without the victim’s authorization; or

(f) Places a noose on the property of a victim who is or whom the actor perceives to be of a racial or ethnic minority group.

RCW 9A.36.080(2)*. “This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) through (f) of this subsection.” Id.

Scope

Nothing under the relevant law–RCW 9A.36.080* (Hate crime offense—Definition and criminal penalty)–“confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.” RCW 9A.36.080(9)*.

Conclusion

In conclusion, Washington State’s approach to hate crimes underscores a commitment to protecting individuals from acts of violence and intimidation rooted in bias against their identity. By defining hate crimes and outlining specific behaviors that constitute such offenses, the law aims to foster a safer environment for all residents. The recognition of various forms of discrimination, from race and religion to gender identity and disability, reflects a broader societal effort to combat prejudice and promote inclusivity. Furthermore, the legal provisions not only establish criminal penalties but also ensure that victims retain the right to seek additional remedies, reinforcing the state’s dedication to justice and equality. As communities continue to navigate issues of hate and discrimination, these laws serve as vital tools in the fight against intolerance.

need help?

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.

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WA State Declines to Adopt the Apex Doctrine

WA State Declines to Adopt the Apex Doctrine

In Washington State, have courts adopted the “apex doctrine” (hereinafter, “Apex Doctrine”)? 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 APEX DOCTRINE: GENERALLY

Fundamentally, the Apex Doctrine is a legal principle that provides protection to certain high-ranking officials from being required to testify in depositions. It is acknowledged in different ways across various jurisdictions, leading to significant variations in its application; and not all jurisdictions have adopted it.

(Employment Law Tip: In Washington State, it’s not uncommon for employment-discrimination plaintiff’s to seek depositions of their employer’s relevant “high-ranking officials.”)

THE POLICY BEHIND THE DOCTRINE

The primary goal of the Apex Doctrine is to prevent undue harassment and misuse of the discovery process. It recognizes that adversaries may seek to leverage depositions of senior officials to gain an advantage in legal disputes, potentially disrupting their ability to perform their duties. By limiting the circumstances under which these officials can be deposed, the Apex Doctrine aims to strike a balance between the need for relevant testimony and the protection of those in leadership positions from unnecessary scrutiny.

WASHINGTON STATE SUPREME COURT DECLINES TO ADOPT THE APEX DOCTRINE

In 2023, the Washington State Supreme Court–in Stratford v. Umpqua Bank, 534 P.3d 1195 (2023)–addressed the applicability of the Apex Doctrine in Washington State. It found that “[n]o reported Washington opinion has explicitly adopted the apex doctrine, at least not in name.” Id. Accordingly, the Court determined the Doctrine, which restricts the deposition of senior officials unless certain conditions are fulfilled, has not been accepted because it conflicts with current discovery rules and the overarching right to discovery. See id. 

Ultimately, the Court elected not to adopt the Doctrine in Washington State and concluded it “is not widely followed; its application is inconsistent and its acceptance is waning.” Id. 

(Employment Law Tip: In Washington State, this ruling could be considered a win for employment-discrimination plaintiffs statewide.)

CONCLUSION

In conclusion, the Apex Doctrine serves as a significant legal principle aimed at protecting high-ranking officials from undue deposition, but its inconsistent adoption across jurisdictions highlights its contentious nature. While the Doctrine seeks to balance the need for relevant testimony with the protection of senior officials, the Washington State Supreme Court’s decision not to embrace it underscores a growing skepticism regarding its validity. As legal frameworks continue to evolve, the future of the Apex Doctrine remains uncertain, with its relevance increasingly challenged by existing discovery rules and the fundamental right to access evidence in legal proceedings.

need help?

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.

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WSHRC: Relationship of Commission to Complainant

WSHRC: Relationship of Commission to Complainant

Under the Washington State Administrative Code (hereinafter, “WAC”), what are the  Washington State Human Rights Commission (hereinafter, “WSHRC”) regulations concerning the relationship of Commission to complainant? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. 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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WSHRC: PRACTICE AND PROCEDURE: RELATIONSHIP OF COMMISSION TO COMPLAINANT

Washington Administrative Code (WAC) 162-08-061* outlines the Washington State Human Rights Commission’s neutral and public-focused role in investigating discrimination complaints. The Commission is tasked with determining whether there is “reasonable cause” to believe an unfair practice has occurred under Washington’s Law Against Discrimination (RCW 49.60*), without favoring either party. Its ultimate goal is to eliminate and prevent discrimination—not merely to secure individual remedies for complainants.

While the Commission often seeks to restore a complainant to their prior position, it prioritizes broader systemic remedies when necessary. Notably, the Commission operates independently of a complainant’s personal interests; it may pursue different outcomes if doing so better serves the public interest. Complainants focused solely on personal relief are encouraged to consider pursuing their claims in court, as the law preserves their right to do so.

THE BLACK LETTER LAW: WAC 162-08-061

The relevant WAC provision states as follows:

WAC 162-08-061
Relationship of commission to complainant.

(1) Commission’s role and objectives. In investigating cases the commission seeks to ascertain the facts in order to make an impartial finding of “reasonable cause” or “no reasonable cause.” It has no predisposition in favor of either complainants or respondents. If “reasonable cause” is found, then the objective of the commission is to obtain the remedy that will best eliminate the unfair practices and prevent their recurrence. The judgment as to what will eliminate an unfair practice for purposes of reaching an agreement under RCW 49.60.240* is made initially by the executive director, or other staff persons pursuant to the executive director’s direction, and ultimately by the commissioners. The judgment as to what will eliminate an unfair practice and carry out the purposes of the human rights law after hearing under RCW 49.60.250* is made by the administrative law judge. The commission was not designed to compete with the courts as a forum for the vindication of private rights; its task is to work for the public good of eliminating and preventing discrimination. Although the facts and circumstances giving rise to a claim of discrimination may sometimes give rise to other claims based upon other statutes or principles of common law, the commission will investigate only claims of unfair practices arising under chapter 49.60* RCW et seq. The law against discrimination expressly preserves the right of complainants and/or aggrieved parties to seek other civil or criminal remedies in court or other available forums, either simultaneously with a complaint filed with the commission or in lieu of such a complaint, subject to any limitations or conditions provided in WAC 162-08-062* or elsewhere.

(2) Independence from complainant. The commission’s primary objective is to eliminate and prevent discrimination, which may or may not be consistent with the goals or objectives of a particular complainant or aggrieved person. In negotiating a settlement or seeking an order, the commission generally works for provisions restoring the complainant as nearly as possible to the position he or she would be in if he or she had not been discriminated against, because this is usually an effective way to eliminate the discrimination and prevent its recurrence. But where, in the commission’s judgment, provisions fully restoring the complainant (for instance, reinstatement to the job with back pay) would be inadequate to eliminate a pattern of discrimination, the commission will hold out for additional terms, even though the respondent is willing to settle on the basis of full relief for the complainant only. Except as may be otherwise provided for complaints alleging unfair practices in real estate transactions, the commission may determine that discrimination will be effectively eliminated and prevented by an order that does not afford the complainant every item of relief to which he or she may have a legal claim. The commission assumes that persons who complain to it are as interested in the elimination and prevention of discrimination in general as in their individual cases. If a person is interested only in relief for himself or herself, he or she is advised to seek his or her remedy directly in court pursuant to RCW 49.60.020*, 49.60.030* and/or WAC 162-08-062*.

WAC 162-08-061* (emphasis added).

RELATED ARTICLES

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

» WA State Human Rights Commission Complaints

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

» WSHRC: From Complaint to Conclusion

LEARN MORE

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

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Promissory Estoppel (WA State)

Promissory Estoppel (WA State)

Under Washington State laws, what is the doctrine of promissory estoppel? 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 DOCTRINE OF PROMISSORY ESTOPPEL

The doctrine of promissory estoppel is based upon the “principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promisee to rely on the promise and if the promisee did actually rely on the promise to the promisee’s detriment.” Black’s Law Dictionary 591 (8th ed. 2004). Accordingly, to establish a viable claim of promissory estoppel, the plaintiff must show:

(1) a promise which

(2) the promisor should reasonably expect to cause the promisee to change his position and

(3) which does cause the promisee to change his position

(4) justifiably relying upon the promise, in such a manner that

(5) injustice can be avoided only by enforcement of the promise.

Chen v. State, 86 Wn.App. 183, 194 n.1 (Div. 2 1997), petition denied, 133 Wn.2d 1020, 948 P.2d 387 (1997) (citing Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 172, 876 P.2d 435 (1994), quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 259 n. 2, 616 P.2d 644 (1980)) (emphasis added).

THE “PROMISE” REQUIREMENT

“Promissory estoppel requires the existence of a promise.” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435) (hyperlink added). “A promise is defined as ‘a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435 (quoting Restatement (Second) of Contracts, § 2(1))).

CONCLUSION

In conclusion, the doctrine of promissory estoppel serves as a vital legal principle that ensures fairness and prevents unjust outcomes when a promise, lacking formal consideration, leads a promisee to alter their position based on that promise. By establishing specific criteria—including the existence of a promise, reasonable reliance, and the necessity of enforcement to avert injustice—this doctrine safeguards individuals from detrimental reliance on assurances that may otherwise go unfulfilled. As courts continue to interpret and apply this doctrine, it underscores the importance of honoring commitments in both personal and commercial contexts, fostering trust and accountability in our interactions.

need help?

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.

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The Tort of Outrage and Racially Discriminatory Action

The Tort of Outrage and Racially Discriminatory Action

Under Washington State law, can racially discriminatory action in employment form the basis for the tort of outrage (hereinafter, “tort of outrage” or “intentional infliction of emotional distress”)? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our external blog or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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

A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. The tort of outrage is one type of tort (also known as intentional infliction of emotional distress). It is defined under the Restatement (Second) of Torts § 46, as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.”

Contreras v. Crown Zellerbach Corp.*, 88 Wn.2d 735, 745, n. 1, 565 P.2d 1173 (Wash. 1977) (emphasis added).

The Tort of Outrage and Racially Discriminatory Action

RACIALLY DISCRIMINATORY ACTION & THE TORT OF OUTRAGE

Racially discriminatory action can form the basis for a claim of outrage. According to the Washington State Supreme Court:

In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.

Id.* at 739, 565 P.2d 1173 (emphasis added). Within the context of employment discrimination, positions of authority are significant when evaluating associated claims based on the tort of outrage.

Positions of authority

“When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior.” Contreras*, 88 Wn.2d at 741, 565 P.2d 1173 (citing Restatement (Second) of Torts § 46 comment e). Thus, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. (internal citations omitted).

CONCLUSION

In conclusion, I believe racially discriminatory actions in employment can form the basis for the tort of outrage. The tort of outrage, or intentional infliction of emotional distress, is a crucial legal framework for addressing severe emotional harm caused by extreme and outrageous conduct. Defined under the Restatement (Second) of Torts § 46, this tort highlights the accountability of individuals whose actions lead to significant emotional distress, even in the absence of physical injury.

Notably, racially discriminatory actions can serve as a foundation for such claims, as established by Washington case law. Furthermore, the dynamics of authority between the parties play a vital role in evaluating these claims, emphasizing that abusive behavior from those in positions of power can significantly exacerbate the impact of the distress. Depending on the circumstances of each case, understanding these elements may be useful for adequately addressing the complexities of emotional distress claims in civil law.

READ MORE OF OUR RELATED ARTICLES

We invite you to read more of our blog articles concerning this topic (for purposes of this section, “IIED” means “intentional infliction of emotional distress” or “tort of outrage”):

» IIED & Supervisors*

» IIED, Vicarious Liability & Proscribing Bad Behavior*

» The Tort of Outrage

» WA Tort of Outrage: A Brief History*

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

Learn More

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

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Unfair Practices of Labor Unions (WLAD)

Unfair Practices of Labor Unions (WLAD)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, what are considered unfair practices of labor unions? 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)

The WLAD, enacted in 1949, is a potent statute covering a broad array of categories, including the following:

RCW 49.60.030
Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, 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 is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD also protects, inter alia, employees from the unfair practices of labor organizations.

DEFINITION OF LABOR ORGANIZATION

The WLAD defines the term “labor organization” as follows:

…

(16) “Labor organization” includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment.

RCW 49.60.040(16) (emphasis and hyperlinks added).

UNFAIR PRACTICES OF LABOR UNIONS

The WLAD prohibits both labor unions and labor organizations from engaging in unfair practices, as follows:

RCW 49.60.190
Unfair practices of labor unions.

It is an unfair practice for any labor union or labor organization:

(1) To deny membership and full membership rights and privileges to 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.

(2) To expel from membership 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.

(3) To discriminate against any member, employer, employee, or other person to whom a duty of representation is owed 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.

RCW 49.60.190*. Under the WLAD, labor unions engaging in unfair practices are subject to liability.

WLAD REMEDIES

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

need help?

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.

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Notices of Disqualification

Notices of Disqualification

Under Washington State laws and court rules, what are notices of disqualification when engaged in civil litigation? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. 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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NOTICES OF DISQUALIFICATION — DISQUALIFICATION OF JUDGES

The General Law

“Notices of disqualification” concern disqualification of judges during civil litigation. The relevant Washington State law concerning disqualification of judges is, in part, as follows:

Disqualification of judge, transfer to another department, visiting judge—Change of venue generally, criminal cases.

(1) No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding if that judge has been disqualified pursuant to RCW 4.12.050. …

RCW 4.12.040(1) (emphasis and hyperlink added).

The Notice of Disqualification — RCW 4.12.050

Thus, pursuant to RCW 4.12.050*, any party to a lawsuit may disqualify a judge of a superior court from hearing a matter–subject to certain limitations–as follows:

Notice of disqualification.

(1) Any party to or any attorney appearing in any action or proceeding in a superior court may disqualify a judge from hearing the matter, subject to these limitations:

(a) Notice of disqualification must be filed and called to the attention of the judge before the judge has made any discretionary ruling in the case.

(b) In counties with only one resident judge, the notice of disqualification must be filed not later than the day on which the case is called to be set for trial.

(c) A judge who has been disqualified under this section may decide such issues as the parties agree in writing or on the record in open court.

(d) No party or attorney is permitted to disqualify more than one judge in any matter under this section and RCW 4.12.040*.

(2) Even though they may involve discretion, the following actions by a judge do not cause the loss of the right to file a notice of disqualification against that judge: Arranging the calendar, setting a date for a hearing or trial, ruling on an agreed continuance, issuing an arrest warrant, presiding over criminal preliminary proceedings under CrR 3.2.1*, arraigning the accused, fixing bail, and presiding over juvenile detention and release hearings under JuCR 7.3* and 7.4*.

…

RCW 4.12.050* (emphasis, hyperlinks, and asterisks added).

The Discretionary Ruling Limitation — Timeliness

There are several limitations concerning disqualification of judges. “One limitation is that a notice of disqualification must be filed ‘before the judge has made a discretionary ruling in the case.'” Austin v. King Cnty., 58124-8-II (Wash. App. Jul 02, 2024) (footnote omitted). NOTE:

[The affidavit of prejudice]

“What RCW 4.12.050* calls a ‘notice of disqualification’ is also referred to as an ‘affidavit of prejudice,’ based on previous versions of RCW 4.12.050.”

Austin, 58124-8-II at 3 n.1 (citing Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 961-62, 453 P.3d 992 (2019)) (emphasis and hyperlink added).

“In other words, an affidavit of prejudice is timely if it is filed before the superior court judge makes any order or ruling involving discretion.” Id. at 3 (citing Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 962, 453 P.3d 992 (2019)) (internal quotation marks omitted).

A Matter of Right if All Requirements Met

“If the requirements of RCW 4.12.050(1)* are met, a party can disqualify the judge presiding over the action as a matter of right.” Id. (citing State v. Gentry, 183 Wn.2d 749, 759, 356 P.3d 714 (2015)) (hyperlink added). “A timely notice of disqualification must be granted.” Id. (citing Godfrey, 194 Wn.2d at 961).

A Question of Law Reviewed De Novo

“Whether a judge has made a discretionary decision under RCW 4.12.050* is a question of law that … [courts] review de novo.” Id. (citing State v. Lile, 188 Wn.2d 766, 776, 398 P.3d 1052 (2017)) (hyperlink added).

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

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Adverse Employment Actions: A Closer Look

Adverse Employment Actions: A Closer Look

Under Washington State laws, what are considered adverse employment actions when pursuing a claim of unlawful retaliation? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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UNLAWFUL RETALIATION — THE PRIMA FACIE CASE

“To establish a prima facie case of retaliation for a protected activity under the [Washington Law Against Discrimination,] … an employee must show that[:]

(1) he engaged in a statutorily protected activity,

(2) the employer took an adverse employment action against the employee, and

(3) there is a causal connection between the employee‘s activity and the employer‘s adverse action.

Boyd v. State*, 187 Wn.App. 1, 11-12, 349 P.3d 864 (Div. 2 2015) (citing Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 797, 120 P.3d 579 (2005); Scrivener v. Clark Coll.*, 181 Wn.2d 439, 446, 334 P.3d 541 (2014)) (hyperlinks added) (footnote omitted).

ELEMENT #2 — ADVERSE EMPLOYMENT ACTION

Within the context of unlawful retaliation claims, “[a]n adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Boyd*, 187 Wn.App. at 13 (citing Alonso v. Qwest Commc’ns Co.*, 178 Wn.App. 734, 746, 315 P.3d 610 (2013)).

THE GENERAL STANDARD

To establish an adverse employment action, “[t]he employee must show that a reasonable employee would have found the challenged action materially adverse, meaning that it would have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Id. (citing Burlington N., 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation marks and citations omitted).

Ultimately, “whether a particular action would be viewed as adverse by a reasonable employee is a question of fact appropriate for a jury.” Id. at 13-14 (citations omitted).

Demotions, Adverse Transfers, or Hostile Work Environments

An adverse employment action “includes[, but is not limited to,] a demotion or adverse transfer, or a hostile work environment.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004) (quoting Robel v. Roundup Corp.*, 148 Wn.2d 35, 74 n.24, 59 P.3d 611 (2002))).

Materially Adverse Reassignments

“Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position.'” Id. (citing Tyner v. Dep’t of Soc. & Health Servs., 137 Wn.App. 545, 565, 154 P.3d 920 (2007)) (internal quotation marks and citations omitted).

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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.

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Cat’s Paw Theory of Liability (WA State)

Cat's Paw Theory of Liability (WA State)

In Washington State, what is the cat’s paw theory of liability? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. 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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CAT’S PAW THEORY OF LIABILITY — SUBORDINATE BIAS LIABILITY

In Washington State, the “cat’s paw” theory of liability is consistent with the law on subordinate bias liability. See Boyd v. State*, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015). “Under the cat’s paw theory, the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker.” Id.* at 21 n.1 (citing Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)).

THE GENERAL RULE

The general rule is as follows:

[I]f a supervisor* performs an act motivated by … animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.

Id.* at 20 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (footnote omitted)) (alteration in original) (internal quotation marks omitted) (emphasis and hyperlink added). Note: the term proximate cause is undefined.

PROXIMATE CAUSE

“Under Washington law, in order for the act to be a proximate cause, it must be a substantial factor.” Id.* (citing City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn.App. 333, 356, 325 P.3d 213 (2014) (“a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus was a substantial factor in the decision”)) (internal quotation marks omitted) (emphasis added).

INDEPENDENT INVESTIGATIONS & CAUSATION

Oftentimes, the employer-defendant under a cat’s paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless: “[A]n independent investigation does not necessarily relieve the employer of liability for an adverse employment action.” Id.* (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011)).

If the independent investigation “relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor.” Id.* at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.*

However: “[I]f the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action … then the employer will not be liable.” Id.* at 18 (citing Staub, 131 S.Ct. at 1193) (alteration in original).

ORIGINS OF CAT’S PAW THEORY OF LIABILITY

“The term ‘cat’s paw’ originated in the fable, ‘The Monkey and the Cat,’ by Jean de La Fontaine[:]

As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.

Id.* at 21 n.1 (citing Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)], 51 Washburn L.J. 159, 159 (2011) (footnotes omitted)) (citation alteration in original).

THE CAT & THE MONKEY

“In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey.” Id.* (citing Edward G. Phillips, Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).

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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.

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Discrimination Because of Marital Status (WSHRC)

Discrimination Because of Marital Status (WSHRC)

Under the Washington State Human Rights Commission regulations, what is the rule concerning discrimination because of marital status? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. 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 STATE HUMAN RIGHTS COMMISSION

Created by the Washington State Legislature in 1949, the Washington State Human Rights Commission (WSHRC) is a key state agency tasked with both administering and enforcing the Washington Law Against Discrimination (WLAD). See Washington State Human Rights Commission Website, https://www.hum.wa.gov/about-us* (last visited August 21, 2024). Its “mission … is to eliminate and prevent discrimination in Washington State through the fair application of the law, efficient use of resources, and establishment of productive partnerships in the community.” Id.

DISCRIMINATION BECAUSE OF MARITAL STATUS

WSHRC regulations are contained under Title 162 WAC* (WAC is the acronym for Washington Administrative Code). The general rule concerning discrimination because of marital status is found therein, as follows:

WAC 162-16-250
Discrimination because of marital status.

(1) General rule. It is an unfair practice to discriminate against an employee or job applicant because of marital status. Examples of unfair practices include, but are not limited to:

(a) Refusing to hire a single or divorced applicant because of a presumption that “married persons are more stable.”

(b) Refusing to promote a married employee because of a presumption that he or she “will be less willing to work late and travel.”

WAC 162-16-250(1)* (hyperlinks and paragraph formatting added).

EXCEPTIONS TO THE RULE

There are exceptions to the general rule, as follows:

WAC 162-16-250
Discrimination because of marital status.

…

(2) Exceptions to the rule. There are narrow exceptions to the rule that an employer, employment agency, labor union, or other person may not discriminate on the basis of marital status:

(a) If a bona fide occupational qualification applies (please see WAC 162-16-240*).

(b) If an employer is enforcing a documented conflict of interest policy limiting employment opportunities on the basis of marital status:

(i) Where one spouse would have the authority or practical power to supervise, appoint, remove, or discipline the other;

(ii) Where one spouse would be responsible for auditing the work of the other;

(iii) Where other circumstances exist which would place the spouses in a situation of actual or reasonably foreseeable conflict between the employer’s interest and their own; or

(iv) Where, in order to avoid the reality or appearance of improper influence or favor, or to protect its confidentiality, the employer must limit the employment of close relatives of policy level officers of customers, competitors, regulatory agencies, or others with whom the employer deals.

WAC 162-16-250(2)* (hyperlinks and paragraph formatting added).

WLAD REMEDIES

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

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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.