by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the limitations for complainants or aggrieved persons that simultaneously pursue other available civil/criminal remedies in addition to, or in lieu of, filing an administrative discrimination complaint with the commission? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).
SIMULTANEOUS REMEDIES & LIMITATIONS
The commission has promulgated rules that limit a complainant’s ability to simultaneously seek remedies for discrimination through the commission and other forums. The relevant rule is WAC 162-08-062, and it provides as follows:
CONCURRENT REMEDIES–OTHER REMEDIES
Except as otherwise provided by RCW 49.60.340, the law against discrimination preserves the right of a complainant or aggrieved person to simultaneously pursue other available civil or criminal remedies for an alleged violation of the law in addition to, or in lieu of, filing an administrative complaint of discrimination with the commission, with the following limitations:
(1) ABEYANCE – REAL ESTATE TRANSACTIONS
A complaint of an unfair practice in a real estate transaction filed concurrently with the commission and another federal, state or local instrumentality with whom the commission has entered into a cooperative agreement under the terms of RCW 49.60.226 or other provision of law will be held in abeyance during the pendency of the other proceeding unless the other proceeding has been deferred pending state action under the terms of the cooperative agreement.
(2) ABEYANCE – GENERAL RULE
A complaint of an unfair practice other than in real estate transactions will be held in abeyance during the pendency of a case in federal or state court litigating the same claim, whether under the law against discrimination or a similar law, unless the executive director or the commissioners direct that the complaint continue to be processed. A complaint of an unfair practice other than in real estate transactions will not be held in abeyance during pendency of a federal, state, or local administrative proceeding, unless the executive director or commissioners determine that it should be held in abeyance.
(3) [RELIEF FOR SAME HARM OR INJURY]
No complainant or aggrieved person may secure relief from more than one governmental agency, instrumentality or tribunal for the same harm or injury.
(4) [RES JUDICATA ISSUES]
Where the complainant or aggrieved person elects to pursue simultaneous claims in more than one forum, the factual and legal determinations issued by the first tribunal to rule on the claims may, in some circumstances, be binding on all or portions of the claims pending before other tribunals.
WAC 162-08-062 (some hyperlinks added).
IMPLICATIONS: EMPLOYMENT DISCRIMINATION LAWSUITS
The above rule appears to say, inter alia, that if the commission files a charge of discrimination on behalf of a claimant, and the claimant simultaneously maintains an associated lawsuit in state or federal court (whether under the law against discrimination or similar law), then the commission will merely hold the charge in abeyance during the pendency of the lawsuit; however, the executive director or the commissioners may direct that the complaint continue to be processed notwithstanding the existence of an associated court action.
If the state/federal court is the first to rule on the claims after making factual and legal determinations, then, in some circumstances, those determinations may be binding on the commission in its disposition of the associated charge of discrimination. QUERY: under what circumstances will the determinations of state or federal courts be binding on the commission? In any event, the complainant or aggrieved person may not secure relief from the commission and a federal or state court for the same harm or injury.
LEARN MORE
If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.
–gw