Under the Washington Law Against Discrimination (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 (40+);
sex (including pregnancy);
marital status;
sexual orientation (including gender identity); race; color;
creed;
national origin;
honorably discharged veteran or
military status;
HIV/AIDS and
hepatitis C status; 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 state employee or health care
whistleblower status. It is also an unfair practice for an
employer to
retaliate against an
employee because the
employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.
Hostile work environment (also known as harassment) is a form of unlawful employment discrimination.
WLAD: HOSTILE WORK ENVIRONMENT
Generally, to establish a
prima facie claim of
hostile work environment under WLAD, the
employee must produce competent evidence of each of the following four elements:
(1) that the harassment was offensive and unwelcome;
(2) that it occurred because of the employee’s membership in a protected class;
(3) that it affected the terms and conditions of employment/membership; and
(4) that the harassment can be imputed to the employer.
See Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (emphasis and hyperlinks added)
. For purposes of this article, the fourth element--imputed to the employer--is at issue.
HOSTILE WORK ENVIRONMENT: 4TH ELEMENT (IMPUTATION)
Under WLAD claims of hostile work environment, plaintiffs may attempt to impute harassment to employers based on the level of the offending employee.
Managers: According to the court in
Glasgow, "[w]here an owner,
manager, partner or corporate officer personally participates in the harassment, [the imputation] element is met by such proof."
Id. at 407, 693 P.2d 708 (emphasis added). This is also known as automatic imputation.
Supervisors & Co-Workers: "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. (emphasis added). "This may be shown by proving [the following:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer's knowledge or constructive knowledge of it and
(b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment."
Id. (emphasis added).
GLASGOW & TITLE VII
"The
Glasgow formulation of the elements of ... harassment is taken from federal cases interpreting Title VII."
Sangster v. Albertson's, Inc., 99 Wn.App. 156, 164, 991 P.2d 674 (Wash.App. Div. 3 2000) (
citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708) (hyperlink added). "Since
Glasgow was decided, several
federal cases have held that there should not be
automatic imputation where the harasser is a supervisor at the employment site
but does not occupy an upper level management position."
Sangster, 99 Wn.App. at 164 (
citing Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir.1997);
Torres v. Pisano, 116 F.3d 625 (2nd Cir. 1997);
Andrade v. Mayfair Mgt., Inc., 88 F.3d 258 (4th Cir.1996)) (emphasis and hyperlink added). "In response to those cases, the United States Supreme Court clarified federal law in
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) and [
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998)]."
Id. at 164, 991 P.2d 674 (emphasis added). Through these cases, the court established the
Faragher-Ellerth Affirmative Defense.
FARAGHER-ELLERTH AFFIRMATIVE DEFENSE & WLAD
The
Faragher-Ellerth Affirmative Defense (Affirmative Defense) applies to the imputation element of Title VII hostile work environment claims: the harassment can be imputed to the employer. The Affirmative Defense determines whether an employer is vicariously liable for a hostile work environment created by a
supervisor.
Id. at 164, 991 P.2d 674 (emphasis added).
In Washington State, courts have also allowed defendant employers to assert the Affirmative Defense against plaintiffs'
WLAD-based hostile work environment claims pursuant to alleged misconduct of high level managers.
See id., 991 P.2d 674 (finding (1) that imputation was based on the conduct of the store manager who was also plaintiff's supervisor; (2) that
Glasgow did "not discuss the effect of failure to use an anti-sexual harassment complaint procedure"; and (3) that
Glasgow "did not attempt to articulate defenses which may have been available to the employer[ ]" -- thus,
Glasgow was not controlling).
THE AFFIRMATIVE DEFENSE
"When no tangible employment action is taken, a defending employer may raise [the] [A]ffirmative [D]efense to liability or damages, subject to proof by a preponderance of the evidence,
see F. Rule Civ. Proc. 8(c)."
Id. at 165, 991 P.2d 674 (hyperlink added). "The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.... No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
Id. (citing Burlington, 118 S.Ct. at 2270;
Faragher, 118 S.Ct. at 2293 (block indents added). "Thus, if the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment."
Id. "This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action, and then only if the employer can prove both elements of the affirmative defense."
Id.
