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.
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.