Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, is there a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer? Here’s my point of view.
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status*.
It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.
(*NOTE: The link will take the reader directly to our Williams Law Group Blog.)
WLAD ANTIRETALIATION PROVISION
The relevant WLAD antiretaliation provision is as follows:
Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.
(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
RCW 49.60.210(1) (emphasis added). The term “employer” is vague.
WLAD DEFINITION OF EMPLOYER
The WLAD definition of the term “employer” is found under RCW 49.60.040(11) and states as follows:
(11) “Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.
Id. The issue is whether this definition also applies to prospective employers. In other words, does the WLAD prohibit retaliatory discrimination by prospective employers against job applicants? The Washington State Supreme Court addressed this issue in Certification From the U.S. District Court for the Eastern District of WA in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) .
CERTIFICATION FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT–ESD 171
In Cert. From U.S. District Court for Eastern Dist. of WA in Jin Zhu v. North Central Educational Service District-ESD 171, the plaintiff (Zhu) was a job applicant who claimed that “a prospective employer refused to hire [him] in retaliation for prior opposition to discrimination against a different employer[.]” See id. at 506. Zhu subsequently filed suit against the prospective employer in federal district court alleging, inter alia, that it violated WLAD’s antiretaliation statute, RCW 49.60.210(1).
Plaintiff Zhu ultimately “prevailed on his WLAD antiretaliation claim and was awarded damages.” Id. at 507. The defendant (ESD 171) then filed a motion asking, inter alia, “that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.” Id. (hyperlink added). Accordingly, “the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme Court]:”
Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?
Zhu, 404 P.3d at 507 (internal quotation marks omitted) (hyperlink added).
(*NOTE: The link will take the reader directly to our Washington Employment Law Digest Blog.)
DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER
The Washington State Supreme Court answered the certified question in Zhu affirmatively and addressed the plain language and scope of WLAD’s antiretaliation provision, WLAD’s definition of employer, and the policy of WLAD.
The Court ultimately held that “[i]n accordance with the plain language of the Washington Law Against Discrimination, Chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1)”; therefore, Zhu stated a valid cause of action based on his claim of unlawful retaliation. See Zhu, 404 P.3d at 506 (hyperlinks added).
During its analysis, the Court also expounded on WLAD’s definition of the term “employer” as follows:
[The WLAD definition of employer (RCW 49.60.040(11))] clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.
Zhu, 404 P.3d at 509 (emphasis and hyperlink added).
CONCLUSION
Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, there is a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer.
READ MORE
We invite you to read more of our blog articles about this topic:
Definition of Prima Facie Case*
The McDonnell Douglas Burden Shifting Framework*
The Prima Facie Case: Unlawful Retaliation
Top 3 Reasons Unlawful Retaliation Claims Fail
Top 3 Causation Standards: Unlawful Retaliation
Unlawful Retaliation: Adverse Employment Action
Unlawful Retaliation: The Actual-Knowledge Standard
Unlawful Retaliation: The Causal Link
Unlawful Retaliation: The Functionally-Similar Test
Unlawful Retaliation: Statutorily Protected Activity
*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.
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