This is a case summary of Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016). Subjects include the following:
» SUBSTANTIAL EVIDENCE STANDARD
» DISPARATE TREATMENT
» HOSTILE WORK ENVIRONMENT
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CASE SUMMARY – 5 Facts:
[1] Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.
[2] WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.
[3] After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.
[4] Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.
[5] [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).
Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016) (internal citations omitted) (hyperlink added).
ISSUE #1: Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?
[1-1] STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court reviews findings of fact for substantial evidence. Blackburn v. Department of Social and Health Services,, 186 Wn.2d 250, 256 (Wash. 2016) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings has the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).
[1-2] MEANING OF SUBSTANTIAL EVIDENCE: “‘Substantial evidence’ means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding.” Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).
[1-3] SUBSTITUTE JUDGMENT: As “long as the substantial evidence standard is met, a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently.” Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).
[1-4] DE NOVO REVIEW: The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).
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[1-5] DURATION AND FREQUENCY OF STATE’S PRACTICES: In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices.
One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents.
[1-6] OTHER STAFFING DECISIONS NOT SUBSTANTIALLY SIMILAR TO RACIAL STAFFING DIRECTIVE: Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.
[1-7] PLAINTIFF’S CHALLENGES NOT SUFFICIENT TO DISTURB TRIAL COURT’S FINDINGS: The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test. See id at 257.
ISSUE #2: Did the employees prevail on their disparate treatment claim?
[2-1] WLAD GENERALLY: “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).
[2-2] DISPARATE TREATMENT: Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).
[2-3] VALID JUSTIFICATION: “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991)) (internal citation parenthetical phrases omitted).
The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).
[2-4] BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ): “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).
[2-5] THE BFOQ TEST: “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).
[2-6] DISPARATE TREATMENT: In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction.
The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id.
[2-7] BFOQ DEFENSE: Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.
[2-8] TRIAL COURT ERRED IN CONCLUDING DISPARATE TREATMENT CLAIM FAILED: The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.
ISSUE #3: Did the employees prevail on their hostile work environment claim?
[3-1] HOSTILE WORK ENVIRONMENT: “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260.
“An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).
[3-2] THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d at 406-07).
[3-3] THIRD ELEMENT CRITERIA: “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment …: the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).
[3-4] STAFFING DECISION WAS NOT SEVERE OR PERVASIVE HARASSMENT: In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of severe or pervasive harassment.” Id.
[3-5] TRIAL COURT DID NOT ERR IN DISMISSING HOSTILE WORK ENVIRONMENT CLAIM: The Court held that “based on the trial court’s factual findings, which we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”
ISSUE #4: Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?
[4-1] REMEDIES: RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id.
[4-2] PLAINTIFFS ENTITLED TO RELIEF: Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).
[4-3] REMAND: The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.
NOTABLES & IMPLICATIONS:
TITLE VII
(1) “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257 (hyperlink added).
(2) “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).
(3) “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).
WASHINGTON LAW AGAINST DISCRIMINATION
(4) “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id.
(5) “The WLAD ‘shall be construed liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).
(6) “RCW 49.60.180 prohibits racial discrimination in employment.” Id. (hyperlink added).
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