Under Washington State law, how is the actual-knowledge standard applied to causation issues for purposes of unlawful retaliation cases? Here’s my point of view.
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UNLAWFUL RETALIATION (WA STATE)
“To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link [(i.e., causation)] between the employee’s protected activity and the adverse employment action.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis and hyperlink added).
The focus of this article is the third element: causal link (or causation). “An employee [shows a causal link (i.e., causation)] ‘by [revealing] … that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (Wash. 2018) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).
SUMMARY JUDGMENT (WA STATE)
“[T]o avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. at 235 (internal citation omitted). “Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added).
The 2nd element (i.e., the employer had knowledge of the action) is at issue; one associated standard of causation applied to unlawful retaliation cases is the “actual knowledge” standard (hereinafter, “actual-knowledge standard”).
CAUSATION: THE ACTUAL KNOWLEDGE STANDARD (WA STATE)
Under this standard, “the employer [must] have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235. (internal citations omitted).
The policy behind the actual-knowledge standard is that “[b]ecause retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.
But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added). “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).
At summary judgment, “[t]he proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original) (emphasis added).
READ MORE ARTICLES
We invite you to read more of our blog articles concerning this topic:
Definition of Prima Facie Case*
Employment-Discrimination Hotlines & Unlawful Retaliation
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 and the Prospective Employer
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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