Unlawful Retaliation: The Causal Link

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.

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UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] 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 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).

UNLAWFUL RETALIATION (WASHINGTON LAW AGAINST DISCRIMINATION)

ELEMENT #3: PROVING THE CAUSAL LINK

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