Disparate Treatment via Hostile Work Environment

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

Latest posts by Gregory A. Williams, Esq. (see all)

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

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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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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The Policy Behind WLAD

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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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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WA Law Against Discrimination: Suing Supervisors

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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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).

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.

-gw

 

Disparate Impact vs. Disparate Treatment Discrimination

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), What is the difference between disparate treatment and disparate impact discrimination? 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.

Discrimination may occur because of the disparate treatment of persons or because actions result in a disparate impact upon different people. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (Wash. 1986).

DISPARATE TREATMENT

To prove “disparate treatment” a plaintiff must show that an employer treated an individual employee or group of employees differently because of sex, race, age, religion or some other improper differentiation. Id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); [s]ee also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)). This is what most people envision when they think of employment discrimination. But discrimination can also occur in the form of disparate impact.

DISPARATE IMPACT

To prove a “disparate impact” from discrimination upon a person or group of persons, a plaintiff must show that an employment practice, which was facially neutral, resulted in discrimination against persons because of their age, sex or other improper distinction. Id. (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See Fahn v. Cowlitz Cy, 93 Wash.2d 368, 610 P.2d 857 (1980); Stieler v. Spokane Sch. Dist. 81, 88 Wash.2d 68, 558 P.2d 198 (1977)).

For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (a protected class). The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class; and the court found a viable claim of disparate impact discrimination reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.

LEARN MORE

Ultimately, there is a tangible difference between disparate treatment and disparate impact discrimination. 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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Constructive Discharge & Effective Dates

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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By Gregory Williams, Esq. | Under the Washington Law Against Discrimination, when does a constructive discharge become effective? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CONSTRUCTIVE DISCHARGE

To establish a prima facie claim of constructive discharge, the employee must prove the following: (1) that the employer deliberately made working conditions intolerable; (2) that a reasonable person in the employee’s position would be forced to quit; (3) that the employee did quit because of the conditions and not for any other reason; and (4) that the employee suffered damage as a result of being forced to quit. Haubry v. Snow, 106 Wn.App. 666, 677, fn 16, 31 P.3d 1186 (Div. 1 2001) (citing Hill v. GTE Directories Sales Corp., 71 Wash.App. 132, 143, 856 P.2d 746 (1993)) (internal citations omitted). The intolerable element may be shown by aggravated circumstances or continuous pattern of discriminatory treatment. Id. at fn 17 (citing Sneed v. Barna, 80 Wash.App. 843, 849, 912 P.2d 1035 (1996)).

EFFECTIVE DATE

A constructive discharge becomes effective on either the date the employee gives notice to the employer or the last day of actual employment. Id. at 486-87 (referencing Douchette v. Bethel Sch. Dist. No. 403, 58 Wn.App. 824, 795 P.2d 162 (1990), aff’d, 117 Wn.2d 805, 816 n. 9, 818 P.2d 1362) (quotation marks omitted).

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.

–gw

Washington Law Against Discrimination

Gregory A. Williams, Esq.

Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.

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

The WLAD, RCW 49.60, is a powerful state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions based on protected classes. This article will address solely the area of employment.

DECLARATION OF CIVIL RIGHTS

In the state of Washington, 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. RCW 49.60.030(1). This right includes, but is not be limited to the right to obtain and hold employment without discrimination. RCW 49.60.030(1)(a).

PROTECTED CLASSES

The essence of unlawful employment discrimination is the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers; to be unlawful, these generalizations must be based on protected classes under the Washington Law Against Discrimination. See Barnes v. Washington Natural Gas Co., 22 Wn.App. 576, 582, 591 P.2d 461 (Div. 1 1979).

Protected classes under WLAD include age; color and race; creed; families with children; honorably discharged veteran or military status; national origin; marital status; sex; sexual orientation and gender identity; the presence of any sensory mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and whistleblower.

SCOPE OF THE LAW

The Washington Law Against Discrimination is a broad and powerful remedial statue that was originally enacted in 1949 as an employment discrimination law. See Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002) (internal citations omitted); Laws of 1949, ch. 183. Remarkably, Washington State enacted WLAD 15 years before the Civil Rights Act of 1964. And WLAD is potent. It contains a sweeping policy statement both denouncing discrimination in a variety of forms and mandating that the law be liberally construed for the accomplishment of the purposes thereof. Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85-86, 821 P.2d 34 (1991); RCW 49.60.020.

Enforcement of WLAD is substantially dependent on employees‘ willingness to fight for their rights and either file charges or testify in discrimination cases. See id. at 86. Thus, Plaintiffs that litigate discrimination claims take on the “role of a private attorney general vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

UNFAIR PRACTICES OF EMPLOYERS

Washington Law Against Discrimination makes it unlawful for employers to engage in certain practices. The following are declared to be unfair practices by employers:

(1) To refuse to hire any person because of membership in a protected class, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

(2) To discharge or bar any person from employment because membership in a protected class.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of membership in a protected class: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to membership in a protected class, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

See RCW 49.60.180.

RETALIATION

Washington Law Against Discrimination also protects individuals against employer retaliation for engaging in protected activity under certain circumstances. The relevant law is RCW 49.60.210 and it states as follows:

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.

(3) It is an unfair practice for any employer, employment agency, labor union, government agency, government manager, or government supervisor to discharge, expel, discriminate, or otherwise retaliate against an individual assisting with an office of fraud and accountability investigation under RCW 74.04.012, unless the individual has willfully disregarded the truth in providing information to the office.

RCW 49.60.210.

THE WA STATE HUMAN RIGHTS COMMISSION

Washington Law Against Discrimination “created a state agency, later designated in 1971 as the Washington State Human Rights Commission, and granted it jurisdiction and powers to carry out the provision of WLAD and the policies and practices of the commission connected therewith.” Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 237, 59 P.3d 655 (2002) (internal citations and quotation marks omitted) (emphasis added). The Commission is authorized to receive, impartially investigate, and pass upon complaints alleging unfair practices defined by WLAD. Id.

Essentially, the Commission has power 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.

CIVIL LAWSUITS

However, notwithstanding the existence of the Washington State Human Rights Commission, employees and former employees are not required to exhaust administrative remedies through the Commission before pursuing civil remedies through the court system based on violations of the Washington Law Against Discrimination. However, this does not hold true for certain federal antidiscrimination laws subject to jurisdiction of the United States Equal Employment Opportunity Commission. See EEOC website. This article addresses solely Washington State law (WLAD) and does not discuss federal discrimination law.

If the employee (or former employee) wants to bypass the Washington State Human Rights Commission, or the Commission dismisses the charge of discrimination, or the Commission elects not to file the charge, then the employee might be able to file a civil lawsuit based on violations of WLAD in a court of competent jurisdiction.

REMEDIES

Remedies for violations of the Washington Law Against Discrimination are broad. Any person deeming himself or herself injured by any act in violation of WLAD can bring a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by WLAD or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.). See RCW 49.60.030(2).

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.