Definition of Whistleblower in WA State

by Gregory Williams, Esq. | Under Washington State law, what is the definition of a “whistleblower“? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

SEVERAL DIFFERENT MEANINGS

According to Washington State law, the term “whistleblower” has several meanings as follows:

(i) An employee who in good faith reports alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, initiating an investigation by the auditor under RCW 42.40.040; or

(ii) An employee who is perceived by the employer as reporting, whether they did or not, alleged improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, initiating an investigation by the auditor under RCW 42.40.040.

RCW 42.40.020(10)(a)(i)-(ii).

In addition, for purposes of the provisions of chapter 42.40 RCW and chapter 49.60 RCW relating to reprisals and retaliatory action, the term “whistleblower” also means as follows:

(i) An employee who in good faith provides information to the auditor or other public official, as defined in subsection (7) of this section, in connection with an investigation under RCW 42.40.040 and an employee who is believed to have reported asserted improper governmental action to the auditor or other public official, as defined in subsection (7) of this section, or to have provided information to the auditor or other public official, as defined in subsection (7) of this section, in connection with an investigation under RCW 42.40.040 but who, in fact, has not reported such action or provided such information; or

(ii) An employee who in good faith identifies rules warranting review or provides information to the rules review committee, and an employee who is believed to have identified rules warranting review or provided information to the rules review committee but who, in fact, has not done so.

RCW 42.40.020(10(b)(i)-(ii).

ADDITIONAL DEFINITIONS

It’s important to note that some of the above mentioned terms are defined by Washington State law as follows:

“Auditor” means the office of the state auditor.

“Employee” means any individual employed or holding office in any department or agency of state government.

“Good faith” means the individual providing the information or report of improper governmental activity has a reasonable basis in fact for reporting or providing the information. An individual who knowingly provides or reports, or who reasonably ought to know he or she is providing or reporting, malicious, false, or frivolous information, or information that is provided with reckless disregard for the truth, or who knowingly omits relevant information is not acting in good faith.

“Improper governmental action” means any action by an employee undertaken in the performance of the employee’s official duties:

(i) Which is a gross waste of public funds or resources as defined in this section;

(ii) Which is in violation of federal or state law or rule, if the violation is not merely technical or of a minimum nature;

(iii) Which is of substantial and specific danger to the public health or safety;

(iv) Which is gross mismanagement; or

(v) Which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless state law or a common law privilege prohibits disclosure. This provision is not meant to preclude the discretion of agency management to adopt a particular scientific opinion or technical finding from among differing opinions or technical findings to the exclusion of other scientific opinions or technical findings. Nothing in this subsection prevents or impairs a state agency’s or public official’s ability to manage its public resources or its employees in the performance of their official job duties. This subsection does not apply to de minimis, technical disagreements that are not relevant for otherwise improper governmental activity. Nothing in this provision requires the auditor to contract or consult with external experts regarding the scientific validity, invalidity, or justification of a finding or opinion.

“Improper governmental action”does not include personnel actions, for which other remedies exist, including but not limited to employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, violations of the state civil service law, alleged labor agreement violations, reprimands, claims of discriminatory treatment, or any action which may be taken under chapter 41.06 RCW, or other disciplinary action except as provided in RCW42.40.030.

“Public official” means the attorney general’s designee or designees; the director, or equivalent thereof in the agency where the employee works; an appropriate number of individuals designated to receive whistleblower reports by the head of each agency; or the executive ethics board.

RCW 42.40.020.

EVEN MORE DEFINITIONS

And some of the above referenced definitions also contain legal terms that have been further defined as follows:

“Gross mismanagement” means the exercise of management responsibilities in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation.

“Gross waste of funds” means to spend or use funds or to allow funds to be used without valuable result in a manner grossly deviating from the standard of care or competence that a reasonable person would observe in the same situation.

“Substantial and specific danger” means a risk of serious injury, illness, peril, or loss, to which the exposure of the public is a gross deviation from the standard of care or competence which a reasonable person would observe in the same situation.

“Use of official authority or influence” includes threatening, taking, directing others to take, recommending, processing, or approving any personnel action such as an appointment, promotion, transfer, assignment including but not limited to duties and office location, reassignment, reinstatement, restoration, reemployment, performance evaluation, determining any material changes in pay, provision of training or benefits, tolerance of a hostile work environment, or any adverse action under chapter 41.06 RCW, or other disciplinary action.

RCW 42.40.020.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment 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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Pregnancy Discrimination is Sex Discrimination in WA

by Gregory Williams, Esq. | In the state of Washington, do courts analyze pregnancy discrimination using an accommodation analysis (similar to that in a disability context), or do they analyze pregnancy discrimination as a form of sex discrimination? 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, RCW Chapter 49.60, it is unlawful for an employer to discriminate against any person in compensation or in other terms or conditions of employment because of a protected class. Protected classes relating to employment discrimination include race or color; national origin; creed; sex or pregnancy; sexual orientation or gender identity; veteran or military status; presence of any sensory, mental, or physical actual disability or perceived disability; use of a service animal; HIV or hepatitis C; marital status; and age.

HEGWINE V. LONGVIEW FIBRE

In Washington, an employer who refuses to hire a job applicant because of her pregnancy is liable for sex discrimination under chapter 49.60 RCW (Washington Law Against Discrimination or WLAD), absent demonstration of a business necessity or proof of a bona fide occupational qualification. Hegwine v. Longview Fibre Co., Inc., 162 Wn.2d 340, 344, 172 P.3d 688 (Wash. 2007) (citing RCW 49.60.180(1) and WAC 162-30-020). The court in Hegwine ultimately held, “[U]nder the plain language of the WLAD and its interpretative regulations, pregnancy related employment discrimination claims are matters of sex discrimination. Such claims are not subject to an accommodation analysis similar to that used in the disability context.” Id. at 349.

CONCLUSION

Consequently, I believe that in the state of Washington, courts analyze pregnancy discrimination as a form of sex discrimination.

L E A R N   M O R E

If you would like to learn more, then consider contacting a pregnancy 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 Dog Guide

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “dog guide”? 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 “DOG GUIDE”

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

“Dog guide” means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.

RCW 49.60.040 (emphasis added).

L E A R N   M O R E

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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Accent Discrimination in WA State

by Gregory Williams, Esq. | Under Washington State law, is it unlawful for an employer to discriminate against an employee based on accent? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

The Washington Law Against Discrimination (WLAD) makes it unlawful for employers to discriminate based upon a person’s national origin. See RCW 49.60.180(3).

National origin discrimination includes discrimination against an employee because he/she shares the linguistic characteristics of a national origin group. Xieng v. Peoples Nat. Bank of Washington, 63 Wn.App. 572, 578 (Wash.App. Div. I 1991), aff’d, 120 Wn.2d 112 (Wash. 1993) (quotation marks and internal citation omitted). Employers face a heavy burden in accent discrimination cases, because they could easily use an individual’s foreign accent as a pretext for national origin discrimination. Id. at 579 (internal citation and quotation marks omitted).

Thus, courts tend to thoroughly scrutinize adverse employment decisions against employees based upon claims of inadequate oral communication skills. Id.

9TH CIRCUIT

Moreover, the federal Ninth Circuit concluded that an employer’s adverse employment decision (e.g., promotion, termination, write-ups, etc.) may be predicated upon an individual’s accent only when it interferes materially with job performance. Id. Otherwise, the employer may be facing liability for accent discrimination under the WLAD.

L E A R N   M O R E

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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Age Discrimination in Washington State

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what are the limitations for “age” as a protected class? Here’s my point of view (please review our disclaimer before proceeding).

WLAD: AGE DISCRIMINATION

It’s unlawful to discrimination in Washington State based on age; but one must be within the proper age group to claim discrimination under WLAD. Generally, Washington’s prohibition against age discrimination is contained in RCW §49.60.205 as follows:

Age discrimination—Limitation. No person shall be considered to have committed an unfair practice on the basis of age discrimination unless the practice violates RCW 49.44.090. It is a defense to any complaint of an unfair practice of age discrimination that the practice does not violate RCW 49.44.090.

Id.

40 YEARS OF AGE OF OLDER

Section RCW §49.44.090, as referenced above, states as follows:

It shall be an unfair practice:

(1) For an employer or licensing agency, because an individual is forty years of age or older, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment: PROVIDED, That employers or licensing agencies may establish reasonable minimum and/or maximum age limits with respect to candidates for positions of employment, which positions are of such a nature as to require extraordinary physical effort, endurance, condition or training, subject to the approval of the executive director of the Washington state human rights commission or the director of labor and industries through the division of industrial relations.

(2) For any employer, licensing agency or employment agency 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 respecting individuals forty years of age or older: PROVIDED, That nothing herein shall forbid a requirement of disclosure of birth date upon any form of application for employment or by the production of a birth certificate or other sufficient evidence of the applicant’s true age after an employee is hired.

Nothing contained in this section or in RCW 49.60.180 as to age shall be construed to prevent the termination of the employment of any person who is physically unable to perform his or her duties or to affect the retirement policy or system of any employer where such policy or system is not merely a subterfuge to evade the purposes of this section; nor shall anything in this section or in RCW 49.60.180 be deemed to preclude the varying of insurance coverages according to an employee’s age; nor shall this section be construed as applying to any state, county, or city law enforcement agencies, or as superseding any law fixing or authorizing the establishment of reasonable minimum or maximum age limits with respect to candidates for certain positions in public employment which are of such a nature as to require extraordinary physical effort, or which for other reasons warrant consideration of age factors.

Id. (emphasis added).

Thus, one must be at at least forty years old to claim age discrimination in WA under the WLAD.

L E A R N   M O R E

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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Definition of Protected Classes

by Gregory Williams, Esq. | Under Washington’s Law Against Discrimination (WLAD), RCW Chapter 49.60, what are “protected classes“? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

PROTECTED CLASSES IN WA

Under WLAD, it’s illegal for an employer to discriminate based on protected classes in employment. Protected classes relating to employment discrimination include the following:

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 refer to our Disclaimer, Terms of Use & Privacy notice for more information.

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The Washington Law Against Discrimination

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 WLAD. 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.

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.

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