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Top 3 Employment Discrimination Laws


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By Gregory Williams, Esq. | Under both federal and Washington State law, there are several commonly litigated employment discrimination laws. (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding). Here are my top 3 employment discrimination laws in Washington State (based on my point of view as an employment discrimination attorney in Washington) . . .

#3  –  The Civil Rights Act of 1866 (Section 1981)

The Civil Rights Act of 1866 (Section 1981) is a federal law that prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981.  A plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). And the employment-at-will relationship is a contract for Section 1981 purposes. Common claims include Disparate Treatment, Hostile Work Environment, and Unlawful Retaliation.

Section 1981 is also known as “Equal rights under the law” and it states as follows:

(a)       STATEMENT OF EQUAL RIGHTS

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b)       “MAKE AND ENFORCE CONTRACTS” DEFINED

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c)       PROTECTION AGAINST IMPAIRMENT

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

#2  –  Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (hereinafter, “Title VII”) “makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex[;] … makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit[;] … and requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.” (“Laws Enforced by EEOC”) (emphasis added). Retrieved from https://www.eeoc.gov/laws/statutes/index.cfm.

Note that Title VII only covers race, color, religion, national origin and sex. Two other federal anti-discrimination laws broaden the protected classes as follows:

(1) Age Discrimination In Employment Act (ADEA) which protects people who are 40 or older from both discrimination on account of age and unlwaful retaliation against a person “because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit”; and

(2) Americans with Disabilities Act (ADA) that prohibits discrimination and unlawful retaliation against a qualified person with a disability. The ADA also “makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.” Further, the ADA requires that “employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business.”

See id.

#1  –  The Washington Law Against Discrimination

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).

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.


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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.

–gw

Top 3 Hostile Work Environment Issues


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By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), hostile work environment (also known as “harassment”) is a form of unlawful employment discrimination (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Generally, to establish a claim of hostile work environment, the plaintiff must establish the following: the harassment was unewlcome; the harassment was becasue of membership in a protected class; the harassment affected the terms and conditions or employment; and the harassment can be imputed to the employer.

Here are my top 3 hostile work environment issues under the WLAD (based on my point of view as an employment discrimination attorney in Washington) . . .

#1  –  The Harassment was Unwelcome & Because of Protected Class

In order to establish harassment, “the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406 (Wash. 1985).

Moreover, the harassment must be on account of the plaintiff’s membership in one or more protected classes. See id. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had not been in” the protected classSee id.

#2  –  The Harassment Affected Terms or Conditions of Employment

“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. at 406-07. To be actionable, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

#3  –  The Harassment is Imputed to Employer

Harassment is imputed to the employer where there is sufficient proof that an owner, manager, partner or corporate officer personally participates in the harassment. Id. at 407.

Otherwise, “to hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” Id.

 


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Keep in mind that the laws on this subject can be complex and confusing and there are many more to consider in prosecuting a claim of employment discrimination. 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.

–gw

Top 3 Issues In Defining Disability


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wa-flagBy Gregory Williams, Esq. | In the State of Washington, it’s unlawful to discrimination in employment based on disability. (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Under the Washington Law Against Discrimination (WLAD), a “disability” means the presence of a sensory, mental, or physical impairment that: (1) is medically cognizable or diagnosable; (2) exists as a record or history; or (3) is perceived to exists whether or not it exists in fact. RCW 49.60.040(7)(a).

Here are my top 3 issues in defining disability under the WLAD (based on my point of view as an employment discrimination attorney in Washington) . . .

#1  –  Impairments

The definition of disability includes the term “impairments.” For purposes of this definition, “impairment” includes, but is not limited to:

1.  Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine;

-or-

2.  Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organ brain syndrome, emotional or mental illness, and specific learning disabilities.

RCW 49.60.040(7)(c).

#2  –  Reasonable Accommodations & Impairments

The term “imparment” has special meaning in relation to the definition of “reasonable accommodations.” An employer’s “failure to provide reasonably accommodations” to a qualified employee may be actionable as an employment discrimination legal theory under WLAD.

Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:

1.  The impairment must have a substantially limiting effect upon the individual’s ability to perform his or her job, the individual’s ability to apply or be considered for a job, or the individual’s access to equal benefits, privileges, or terms or conditions of employment;

-or-

2.  The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.

RCW 49.60.040(7)(d) (emphasis added).

#3  –  Substantial Limitations

To qualify for a reasonable accommodation in employement, an employee must have, inter alia, an impairment that has a “substanially limiting effect” as described in #2 above. Accordingly, for purposes of RCW 49.60.040(7)(d), a limitation is not substantial if it has only a trivial effect.


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Keep in mind that the laws on this subject can be complex and confusing and there are many more to consider in prosecuting a claim of disability discrimination. 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.

–gw

Top 3 Wrongful Termination Theories


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wa-flagBy Gregory Williams, Esq. | In the State of Washington, a person who believes that they were wrongfully terminated may use the termination to support various legal theories for purposes of litigation (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Here’s my countdown of the top 3 wrongful termination theories in Washington State (based on my point of view as an employment discrimination attorney in Washington) . . .

#3  –  Disparate Treatment

Disparate treatment occurs when an employer treats some people less favorably than others because of membership in a protected class. See Alonso v. Qwest Communications Co., 178 Wn.App 734, 744, 315 P.3d 610 (Div. 2 2013) (internal citations omitted). 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.

To establish a prima facie case based on wrongful termination, the plaintiff must show that his/her employer simply treats some people less favorably than others because of their protected classId. (internal citations omitted). An employee typically must prove that he/she (1) was within the protected class, (2) was terminated; (3) was replaced by a person outside the protected class; and (4) was qualified to do the job.  See Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993), amended, 122 Wn.2d 483, 865 P.2d 507 (1994).

#2  –  The Tort of Wrongful Discharge

Washington State recognizes the tort of wrongful discharge as an exception to the general principle that absent a definite contract, employees are terminable at-will; at “tort” is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.

The purpose of the tort exception is to prevent employers from utilizing the employee at-will doctrine to subvert public policy. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 275, 358 P.3d 1139 (2015) (internal citations omitted). Under this theory of liability, employer size is not an issue unlike claims under the Washington Law Against Discrimination.

 

#1  –  Unlawful Retaliation

The Washington Law Against Discrimination also prohibits retaliation against a party asserting a claim based on a perceived violation of his/her civil rights or participating in an investigation into alleged workplace discrimination. Id. at 753 (citing RCW 49.60.210). To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him (e.g., termination of employment), and (3) there is a causal link between the activity and the adverse action. Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

 


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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.

–gw

Top 3 Employment Discrimination Theories


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wa-flagBy Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), there are several common emploment discrimination theories that plaintiff’s litigate (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Here’s my countdown of the top 3 employment discrimination theories under the WLAD (based on my point of view as an employment discrimination attorney in Washington) . . .

#3  –  Disparate Treatment

Disparate treatment occurs when an employer treats some people less favorably than others because of membership in a protected class. See Alonso v. Qwest Communications Co., 178 Wn.App 734, 744, 315 P.3d 610 (Div. 2 2013) (internal citations omitted). To establish a prima facie case, the plaintiff must show that [his/her] employer simply treats some people less favorably than others because of their protected class.” Id. (internal citations omitted).

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.

#2  –  Hostile Work Environment

Hostile work environment is also known “Harassment,” and it’s actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. See id. 749 (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)). In order to establish a prima facie hostile work environment claim, the plaintiff must alleged facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)).

#1  –  Unlawful Retaliation

The Washington Law Against Discrimination also prohibits retaliation against a party asserting a claim based on a perceived violation of his/her civil rights or participating in an investigation into alleged workplace discrimination. Id. at 753 (citing RCW 49.60.210). To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action. Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

 


 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.

–gw

Top 3 Reasons Unlawful Retaliation Claims Fail


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By Gregory Williams, Esq. | In the State of Washington, unlawful retaliation claims fail for a variety of reasons. (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

The Washington Law Against Discrimination (WLAD) prohibits an employer from retaliating against a person for opposing a discriminatory practice forbidden by WLAD or for participating in a proceeding to determine whether discrimination occurred. See RCW 49.60.210. To establish a prima facie claim of unlawful retaliation, a plaintiff must show that (1) [he/she] engaged in statutorily protected activity, (2) [his/her] employer took an adverse employment action against [him/her], and (3) there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Co., 178 Wn.App. 734, 754, 315 P.3d 610 (2013).

Here’s my countdown of the top 3 reasons why unlawful retaliation claims fail in Washington (based on my point of view as an employment discrimination attorney) . . .

#3  –  No Causation

A plaintiff bringing suit based on unlawful retaliation, RCW 49.60.210, must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision. Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 96 (Wash. 1991).

Two common ways (but not the only ways) to establish causation include (1) proximity in time, and (2) abrupt change in performance reviews. It should be clear how an abrupt change in performance reviews from satisfactory to poor can support an argument for causation; however, “proximity in time” requires further explanation.

“Proximity in time” supports an argument for causation if the plaintiff can show the employer’s knowledge that the plaintiff engaged in protected activities and that the proximity in time between the protected action and the allegedly retaliatory employment action is minimal.

This element can pose a problem in litigation if the employee-plaintiff is unable to argue either “proximity in time” or “change in performance reviews”, and there is no other evidence that retaliation was a substantial factor motivating the adverse employment decision.

#2  –  No Adverse Employment Action

To establish an adverse employment action, “the employee must show that a reasonable employee would have found the challenged action materially adverse, meaning that it would have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Boyd v. State, 187 Wn.App. 1, 13, 349 P.3d 864 (Div. 2 2015) (internal citations and quotation marks omitted).  It includes but is not limited to a demotion or adverse transfer, or a hostile work environment. Id. (internal citations and quotation marks omitted).

The problem typically occurs when the employee alleges an adverse employment action that is merely bothersome; because a viable “adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Alonso v. Qwest Communications Co., 178 Wn.App. 734, 746, 315 P.3d 610 (2013).

#1  –  No Protected Activity

An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that he reasonably believed to be discriminatory. Id. at 753.

However, a general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status. Id.

A common problem that occurs is when an employee-plaintiff either completely fails to complain of discrimination to the employer or fails to properly complain of discrimination to the employer by omitting reference to one or more specific protected classes.

 


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If you’ve experienced unlawful retaliation at work or if you’d 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.

Top 3 Employment Discrimination Governmental Agencies


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wa-flagBy Gregory Williams, Esq. | In the state of Washington, governmental agencies can help employees fight employment discrimination. (Please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Here’s my countdown of the top 3 employment discrimination governmental agencies in Washington (based on my point of view as an employment discrimination attorney) . . .

#3  –  Municipal Civil Rights Departments

Some municipalities (e.g., Seattle Office for Civil Rights and Tacoma Human Rights Commission) have established departments that work to resolve employment discrimination and retaliation complaints, inter alia, based on protected classes. The services offered by these departments vary from city to city. And, unfortunately, not all municipalities in Washington maintain such departments.

#2  –  United States Equal Employment Opportunity Commission

The United States Equal Employment Opportunity Commission enforces Federal laws prohibiting employment discrimination. You may seek recourse through the Commission if you experience employment discrimination that involves:

1.  Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

2.  Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

3.  Denial of a reasonable workplace accommodation that you need because of your religious beliefs or disability.

4.  Retaliation because you complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.

Visit the EEOC Website to learn more.

#1  –  Washington State Human Rights Commission

The Washington Law Against Discrimination (WLAD), RCW 49.60, is a 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. Protected classes include the following: 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. WLAD also prohibits retaliation against persons who engage in protected activity in relation to discriminatory practices, and those who file health care and state employee whistleblower complaints.

The Washington State Human Rights Commission (WSHRC) is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. The WSHRC works to prevent and eliminate discrimination through complaint investigation, alternative dispute resolution, and eduction, training and outreach activities.

Visit the WSHRC Website to get more information.

 


 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.

–gw