WLAD: Discriminatory Boycotts & Blacklists

by Gregory Williams, Esq. |  Under the Washington Law Against Discrimination (WLAD), what is the definition of “discriminatory boycotts and blacklists“? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

The right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right in the State of Washington. RCW 49.60.030(1). This right includes, but is not limited to the right to engage in commerce free from any discriminatory boycotts or blacklists. RCW 49.60.030(1)(f) (emphasis added).

RCW 49.60.030(1)(f)

Chapter 49.60.030(1)(f) RCW is the relevant law, and it defines the term “discriminatory boycotts and blacklists” as follows:

(f) DISCRIMINATORY BOYCOTTS OR BLACKLISTS” for purposes of this section shall be defined as the formation or execution of any express or implied agreement, understanding, policy or contractual arrangement for economic benefit between any persons which is not specifically authorized by the laws of the United States and which is required or imposed, either directly or indirectly, overtly or covertly, by a foreign government or foreign person in order to restrict, condition, prohibit, or interfere with or in order to exclude any person or persons from any business relationship on the basis of race, color, creed, religion, sex, honorably discharged veteran or military status, sexual orientation, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, or national origin or lawful business relationship: PROVIDED HOWEVER, That nothing herein contained shall prohibit the use of boycotts as authorized by law pertaining to labor disputes and unfair labor practices…

RCW 49.60.030(1)(f) (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Tort of Wrongful Discharge: 2 Approaches

by Gregory Williams, Esq. |  Under Washington State law, what approaches may plaintiffs utilize to establish a claim of wrongful discharge in violation of public policy? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

AT-WILL EMPLOYMENT RULE

Washington has been an “at-will” employment state since at least 1928, and under this this doctrine an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong. Conversely, an employee has the absolute right to quit his or her employment at-will. However, there are three recognized exceptions to the general at-will employment rule: (1) Contractual; (2) Statutory; and (3) Judicial. This article will address the “Judicial” exception.

THE JUDICIAL EXCEPTION: 2 APPROACHES

A tort is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability. In the State of Washington, there are two approaches to establishing the Tort of Wrongful Discharge–also known as the “Judicial” exception to the at-will employment rule–as follows: (1) Four-Scenarios Approach; and (2) Refined Approach.

The Four Scenarios Approach

First, under this tort’s common analytical framework, there are four scenarios that will potentially expose the employer to liability: (1) when employees are fired for refusing to commit an illegal act, (2) when employees are fired for performing a public duty or obligation, such as serving jury duty, (3) when employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims, and (4) when employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 286-87, 358 P.3d 1139 (Wash. 2015).

Under each scenario, the plaintiff is required to identify the recognized public policy and demonstrate that the employer contravened that policy by terminating the employee. Id. at 276. However, there is a second, more refined approach, to establishing liability under the Tort of Wrongful Discharge.

The More Refined Approach

In other instances, when the facts do not fit neatly into one of the four above-described categories, a more refined analysis may be necessary. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 287, 358 P.3d 1139 (Wash. 2015). In those circumstances, the courts look to the four-part Perritt framework for guidance. See id.

Under the Perritt framework, courts examine (1) the existence of a clear public policy (clarity element), (2) whether discouraging the conduct in which [the employee] engaged would jeopardize the public policy (jeopardy element), (3) whether the public-policy-linked conduct caused the dismissal (causation element), and (4) whether the employer is able to offer an overriding justification for the dismissal (absence of justification element). Id. at 277. (internal citations and quotation marks omitted) (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Employer Liability for Unpaid Contract Wages

by Gregory Williams, Esq. |  Under Washington State law, may an employer pay an employee a lower wage than such employer is obligated to pay such employee by contract? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

RCW 49.52.050 & 070

The applicable law is under both RCW 49.52.050 and .070 — Rebates of wages and Civil liability for double damages, respectively. The relevant portions of RCW 49.52.050 state as follows:

Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who

(2) Willfully and with intent to deprive the employee of any part of his or her wages, shall pay any employee a lower wage than the wage such employer is obliagted to pay such employee by any statute, ordinance, or contract

Shall be guilty of a misdemeanor

RCW 49.52.050 (emphasis added). And the relevant portions of RCW 49.52.070 state as follows:

Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of RCW 49.52.050(1) and (2) shall be liable in a civil action by the aggrieved employee or his or her assignee to judgment for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney’s fees: PROVIDED, HOWEVER, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations.

RCW 49.52.070 (emphasis added).

CLIPSE v. COMMERCIAL DRIVER SERVICES, INC.

The court in Clipse v. Commercial Driver Services, Inc., 189 Wn.App. 776, 358 P.3d 464 (Wash.App. Div. 2 2015) found that RCW 49.52.050(2) prohibits an employer from paying an employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract. Id. (internal citation and quotation marks omitted) (emphasis added). This court went on to reason that RCW 49.52.070 creates civil liability, including double damages, costs, and attorney fees, for violations of RCW 49.52.050. Id.

CONCLUSION

Thus, depending on the circumstances of each case, I believe that an employer that willfully pays a lower wage than it’s obligated to pay under contract is taking a substantial risk; and, with few exceptions, it may be found liable for double damages, costs, and attorney fees.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Disparate Treatment via Hostile Work Environment

By Gregory Williams, Esq. |  Under the Washington State direct evidence approach, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Washington Law Against Discrimination

Under the Washington Law Against Discrimination, 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, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability. RCW 49.60.180(2). These categories are also known as protected classes.

Disparate Treatment

Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class. Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)). A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

Direct Evidence Test

The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:

1.  The defendant employer acted with a discriminatory motive; and

2.  The discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491).

Significant/Substantial Factor

The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive (1st element) was a significant or substantial factor in the subject employment decision/action. And employee-plaintiffs must establish that the subject employment action was adverse to their interests.

However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). And a demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

Conclusion

Thus, I believe that an employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: Common Statute-Based Theories of Wrongful Termination

By Gregory Williams, Esq. |  Under the Washington Law Against Discrimination (WLAD), what are common statute-based theories of wrongful termination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE SCOPE

This article will address only one of several possible categories of “wrongful termination” that are exceptions to Washington’s “at-will” employment doctrine: the statute-based exception. In addition, experience has taught me that most statute-based “wrongful termination” claims are established through circumstantial evidence utilizing the McDonnell Douglas Framework for analysis; however, there is also a “Direct Evidence” approach. I will apply only the McDonnell Douglas Framework to the theories in this article. But, first, a little background might help to understand the concepts.

THE AT-WILL DOCTRINE

Washington has been an at-will employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)).

According to this doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotations omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual. Again, I will only be addressing the statutory exception.

STATUTORY EXCEPTIONS

Under the statutory exception, both Congress and the Washington State Legislature have modified the employment at-will doctrine by limiting employers‘ rights to discharge employees. Id. at 153 (referencing National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1994); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994); chapter 49.60 RCW (Washington’s law against discrimination); see also chapter 49.12 RCW (prohibiting discharge of employees for testifying in investigations regarding labor conditions, worker earnings, or sex discrimination); RCW 49.44.090 (prohibiting discharge of employee for being age 40 and over)).

These are examples of statutory laws that provide an exception to the at-will doctrine that protects the employee’s rights and limits the employer’s ability to discharge an employee at-will. Under WLAD, I typically litigate statutory exceptions to the at-will doctrine by utilizing the circumstantial evidence method (i.e., McDonnell Douglas Framework) based on (1) Disparate Treatment and (2) Unlawful Retaliation. I will present only prima facie cases under this method.

(1)  DISPARATE TREATMENT

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability. RCW 49.60.180(2).

This statute forms the basis for disparate treatment discrimination claims based on the wrongful termination approach. Under the first step of McDonnell Douglas, the employee makes out a prima facie discrimination case by showing that he or she: (1) was within the protected group; (2) was discharged; (3) was replaced by a person outside the protected group; and (4) was qualified to do the job. Keep in mind that there are two more steps under McDonnell Douglas that are beyond the scope of this article.

(2)  UNLAWFUL RETALIATION

WLAD provides additional protections for employees against retaliation. Specifically, it is unlawful for an employer to retaliate against a person for opposing what the person reasonably believed to be discrimination on the basis of a protected class and/or providing information to or participating in a proceeding to determine whether discrimination or retaliation occurred.

Under the first step of McDonnell Douglas, the employee makes out a prima facie case of unlawful retaliation by producing evidence of: (1) a protected activity by the employee; (2) an adverse action by the employer, and (3) a causal connection between the employee’s activity and the employer’s adverse action. Here, the second element–an adverse action by the employer–is established by way of the alleged wrongful termination. Again, there are two more steps under McDonnell Douglas that are beyond the scope of this article.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: HIV or Hepatitis C Infection

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), do individuals suffering from HIV or hepatitis C infection fall within a protected class? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under 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; sex; marital status; sexual orientation; race; creed; color; national origin; honorably discharged veteran or military status, HIV or Hepatitis C infection; or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

UNFAIR PRACTICES: HIV OR HEPATITIS C INFECTION

Pursuant to the WLAD, the following acts, inter alia, are considered unfair practices:

(1) No person may require an individual to take an HIV test, as defined in chapter 70.24 RCW, or hepatitis C test, as a condition of hiring, promotion, or continued employment unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification for the job in question.

(2) No person may discharge or fail or refuse to hire any individual, or segregate or classify any individual in any way which would deprive or tend to deprive that individual of employment opportunities or adversely affect his or her status as an employee, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of the results of an HIV test or hepatitis C test unless the absence of HIV or hepatitis C infection is a bona fide occupational qualification of the job in question.

(3) The absence of HIV or hepatitis C infection as a bona fide occupational qualification exists when performance of a particular job can be shown to present a significant risk, as defined by the board of health by rule, of transmitting HIV or hepatitis C infection to other persons, and there exists no means of eliminating the risk by restructuring the job.

(4) For the purpose of this chapter, any person who is actually infected with HIV or hepatitis C, but is not disabled as a result of the infection, shall not be eligible for any benefits under the affirmative action provisions of chapter 49.74 RCW solely on the basis of such infection.

(5) Employers are immune from civil action for damages arising out of transmission of HIV or hepatitis C to employees or to members of the public unless such transmission occurs as a result of the employer‘s gross negligence.

RCW 49.60.172.

CONCLUSION

Thus, it appears that individuals suffering from HIV or hepatitis C infections fall within a protected class under the Washington Law Against Discrimination.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: Definition of National Origin

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “national origin”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under 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, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “NATIONAL ORIGIN”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “national origin” as follows:

“National origin” includes “ancestry.”

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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The Policy Behind WLAD

By Gregory Williams, Esq. | What is the policy behind the Washington Law Against Discrimination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE POLICY BEHIND WLAD

The policy of the Washington Law Against Discrimination as contained under chapter 49.60 RCW is as follows:

This chapter shall be known as the “law against discrimination.” It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and the commission established hereunder is hereby given general jurisdiction and power for such purposes.

RCW 49.60.010 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: Definition of Sex

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “sex“? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under 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, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “SEX”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “sex” as follows:

“Sex” means gender.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WA Law Against Discrimination: Suing Supervisors

By Gregory Williams, Esq. | Under Washington law, can individuals sue their supervisors for violating the Washington Law Against Discrimination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE WASHINGTON LAW AGAINST DISCRIMINATION

I believe that supervisors, along with their employers, can be held liable for their discriminatory acts. As an initial matter, the Washington Law Against Discrimination (WLAD) expressly mandates liberal construction of its provisions in order to accomplish the broad purposes of the law. Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 357, 20 P.3d 921 (2001) (citing RCW 49.60.020). Therefore, Washington courts view with caution any construction that would narrow the coverage of the law. Id. (citing Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996)) (internal quotations omitted).

In Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921 (2001), the Washington State Supreme Court consolidated two separate conflicting appeals containing one common and one separate issue. This article will only address the common issue: whether a supervisor who discriminates against an employee can be held individually liable under Washington’s Law Against Discrimination, chapter 49.60 RCW? Id. The first of the two consolidated appeals was Brown v. Scott Paper World Wide Company (hereinafter, “Scott Paper”); and the second was Raymond v. Pacific Chemical (hereinafter, “Raymond”). Id.

BROWN v. SCOTT PAPER WORLD WIDE COMPANY

In Scott Paper, a female paper mill employee was promoted to both the highest union position in the mill and the lead position on the paper machine. Id. at 354-55. However, she endured years of sexual harassment at work where she was shunned by coworkers, was the victim of pranks, and was referred to in derogatory, sexist terms such as “boobs” and “beaver” Brown. Id. (quotation marks omitted). Subsequently, her human resources manager temporarily disqualified her from advancement pursuant to questionable reasons, and this was the first time the company had disqualified anyone under similar circumstances. Id.

Eventually, she was suspended for kicking a coworker, and the employer conditioned her return upon acknowledgement and development of a plan meeting certain criteria; but when her medical provider proposed a plan, the employer rejected it. However, she was eventually returned to her original position by arbitrator decision after she filed a grievance. Id.

Nevertheless, the employee subsequently filed suit in superior court for sexual harassment and discrimination based on sex and disability; and she included the employer and six of its supervisors (Supervisors) as defendants. However, upon the Supervisors’ motion, the trial court dismissed the claims against them ruling that they were not “employers“ under RCW 49.60; but the Court of Appeals reversed.

RAYMOND v. PACIFIC CHEMICAL

In Raymond, the employer both recalculated an employee’s compensation and reassigned the employee after he had worked for the employer as a sales representative for four years; the employee believed that this resulted in a substantial reduction in his pay. Id. at 356. The employee further asserted that his supervisors picked on him in order to drive him out of the company when he subsequently returned to work from a vacation; and, although the employer supported its actions by citing the employee‘s alleged performance/behavioral issues, it was a scheme to drive him out along with other older salespersons. Id.

Thereafter, the employer terminated the 51-year-old employee for insubordination and replaced him with a younger less experienced employee; and the employer either fired or encouraged three other mature workers to retire early. Id. The employee then sued the employer and several of its supervisors (Supervisors) based on age discrimination. And similar to the case in Scott Paper, upon the Supervisors’ motion the trial court dismissed the claims against them; however, unlike the case in Scott Paper, the Court of Appeals affirmed Raymond.  Thus, there was a conflict between Court of Appeals panels on this issue, and the case was appealed to the state supreme court.

WASHINGTON SUPREME COURT:  The Scott Paper Case

The Washington State Supreme Court in Scott Paper addressed the issue of whether supervisors can be individually liable for employment discrimination by, inter alia: (1) analyzing the plain language of the statute; (2) distinguishing the State and Federal definitions of “employer” under the respective discrimination laws; and (3) applying the legislative intent of RCW 49.60.220.

1. PLAIN LANGUAGE OF THE STATUTE

Washington State courts interpret chapter 49.60 RCW by first analyzing the plain language of the statute. See Brown v. Scott Paper Worldwide Co., 143 at 357 (citing Martini v. Boeing Co., 137 Wash.2d 357, 365, 971 P.2d 45 (1999)). In this case, the Scott Paper Court focused on the definition of the term “employer.” WLAD defines “employer” as “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. (citing RCW 49.60.040). However, according to the definition, the term “employer” can be interpreted as either of the following:

a. Any person acting in the interest of an employer

[or]

b. Any person…who employs eight or more persons

Accordingly, plaintiff-employees suing defendant-supervisors/managers under WLAD could argue interpretation to hold them liable while defendant-supervisors/managers could argue interpretation to escape liability.

The Supreme Court then explained that although the Court of Appeals panels in Scott Paper and Raymond recognized that the statute’s grammatical structure was subject to different interpretations; they disagreed as to the correct reading. Id. at 357-58. Consequently, the Supreme Court found that the definition under RCW 49.60.040, by its very terms, contemplates individual supervisor liability; and a supervisor acting in the interest of an employer who employs eight or more people can be held individually liable for his or her discriminatory acts. Id. at 358.

2. STATE AND FEDERAL STATUTES DEFINE EMPLOYER DIFFERENTLY

Next, the Supreme Court in Scott Paper firmly put an end to any attempts by supervisors/managers to argue that the narrower Federal definition of “employer” should also be used under the Washington Law Against Discrimination. The Court found significant grammatical and statutory construction differences to the extent that Federal case law was useless to its analysis.

Under Title VII of the Civil Rights Act of 1964, the definition of “employer” is as follows:

“[E]mployer” means a person engaged in an industry affecting commerce who has fifteen or more employees … and any agent of such a person.”

Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Civil Rights Act of 1964, 42 U.S.C. § 2000e(b)). Whereas the definition of “employer” under WLAD is as follows:

“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.

Chapter 49.60.040 RCW. Grammatically, the Court found that the two definitions were significantly different and the Federal definition was essentially unavailing. Id. at 359.

Moreover, the Court found substantial differences in statutory construction between the State and Federal definition – reasoning that the definition under RCW 49.60.040 contains the word “includes,” which is a term of enlargement; while, in contrast, title VII uses the word “means,” which is a term of limitation. Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Queets Band of Indians v. State, 102 Wash.2d 1, 4, 682 P.2d 909 (1984) (citing 2A Norman J. Singer, Statutes and Statutory Construction § 47.07, at 82 (4th ed.1973))) (quotation marks omitted).

3. LEGISLATIVE INTENT

Lastly, the Supreme Court in Scott Paper considered the policy behind Washington Law Against Discrimination and found that the legislative intent to hold supervisors individually liable for acts of employment discrimination is evidenced by chapter 49.60 RCW’s clear mandate to eliminate all forms of discrimination. Brown v. Scott Paper Worldwide Co., 143 at 359-60 (citing RCW 49.60.010) (quotation marks omitted).

In fact, the Supreme Court suggested that there are two policies for supervisor-manager liability under Washington Law Against Discrimination: (1) “Aiding and Abetting” under RCW 49.60.220; and (2) the Definition of “Employer” under RCW 49.60.040.

Particularly, the Court found that the Legislature’s intent to hold supervisors personally liable is manifested in RCW 49.60.220; and the inclusion of this provision establishes that the Legislature intended to reach individual wrongdoers in the workplace, not just the employers themselves. Brown, 143 at 360 (quotation marks omitted). The relevant law states as follows:

Unfair practice to aid violation.

It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.

RCW 49.60.220.

Moreover, the Supreme Court suggested the second policy for supervisor-manager liability under the Washington Law Against Discrimination definition of “employer” when it reasoned, in accord with the Court of Appeals panel in Scott Paper, that “[I]t would be a strained construction to hold supervisors personally accountable for their acts when they aid another in discrimination but not accountable when their own actions are directly discriminatory.” Brown, 143 at 360-61 (internal citation omitted).

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