(1) Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.
(2) In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.
(3) The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.
(4) That jury instruction required Ms. Allison to show that her discharge was motivated ‘to any degree by retaliation.’
(5) On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.
(6) [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.
(7) [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.
-Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 81 (Wash. 1991).
ISSUE #1: What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?
The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010). The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020). In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted). Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88.
The Court evaluated the issue based on several argument categories as follows: (1) arguments based on the language of RCW 49.60; (2) arguments based on Federal and Washington state case law; (3) arguments based on public policy considerations; and (4) the Wilmot case.
(1) LANGUAGE OF RCW 49.60: The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85. The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD Id. at 88.
(2) FEDERAL & STATE CASE LAW: The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91. “Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.
(3) PUBLIC POLICY CONSIDERATIONS: The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other. It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95. This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.
(4) THE WILMOT CASE: The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim. Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.
The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96. It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.
ISSUE #2: Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?
(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)
Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.
The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.
DISCRIMINATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.
RETALIATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.
The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”
The Court also addressed attorney’s fees.
NOTABLES & IMPLICATIONS:
[~1] RCW 49.60.030(2) has been interpreted as granting parties to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).
[~2] “The ‘but for’ standard of causation adopted by the Court of Appeals in Allison will negatively affect enforcement of the law against discrimination.” Id. at 88.
MCDONNELL DOUGLAS APPROACH
[~3] Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).
[~4] Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).
[~5] Under the McDonnell Approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).
[~6] The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).
[~7] The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).
[~8] The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).
[~9] The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.
[~10] “Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).