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Monday, August 13, 2018

FREE Legal Forms: AK, CA, HI, ID, OR, WA


   
by Gregory Williams, Esq. |  What are some free resources for reliable and trusted legal forms in Washington State, Alaska, California, Hawaii, Idaho and Oregon? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

WASHINGTON STATE
FREE Washington State Legal Forms is a website designed, developed, and maintained by Attorney Gregory Williams. It both provides free access to trusted legal forms and offers reliability reviews for each source website.

Free forms are categorized and include, but are not limited to, the following subjects:

ALASKA, CALIFORNIA, HAWAII, IDAHO, & OREGON

We've received an overwhelming response to our FREE Legal Forms websites, and we're in the process of enhancing the websites for these states by (1) adding security certificates, (2) making them mobile friendly, and (3) migrating them to a safer and more reliable hosting provider (to see these enhancements, visit our WA State website). In the meantime, these websites will be down. Please check back soon!



 
   


PLEASE NOTE

The information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Title VII Definition of Employee

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, what is the definition of the term “employee”? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF EMPLOYER

The relevant law is found under 42 U.S.C. § 2000e, and it defines the term “employee” as follows:
...
(f) The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States...
42 U.S.C. § 2000e (emphasis and hyperlinks added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Sunday, August 5, 2018

Title VII Definition of Employer

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, what is the definition of the term “employer”? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF EMPLOYER

The relevant law is found under 42 U.S.C. § 2000e, and it defines the term “employer” as follows:
(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
42 U.S.C. § 2000e (emphasis added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Saturday, July 28, 2018

Remedies For Breach of Conciliation Agreements

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the remedies for breach of conciliation agreements? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

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 statussexual 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.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

The WSHRC was established by the Washington State Legislature in 1949, and it "is a state agency responsible for administering and enforcing the Washington Law Against Discrimination." WSHRC Official Website, last accessed 4/18/18. One of its powers, inter alia, is the ability "to receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in ... [the WLAD]." RCW 49.60.120(4).

"If the facts as stated in the complaint do not constitute an unfair practice under ... [WLAD], a finding of no reasonable cause may be made without further investigation." RCW 49.60.240(1)(a). However, "[i]f the facts as stated could constitute an unfair practice under ... [WLAD], a full investigation and ascertainment of the facts shall be conducted." Id. And "[i]f the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission's staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion." RCW 49.60.240(3) (emphasis added). Within the employment context, "the task of the commission [in effectuating conciliation] is to endeavor to eliminate the unfair practice through agreement with the respondent." Such agreements are termed "conciliation agreements."

REMEDIES FOR BREACH OF CONCILIATION AGREEMENTS

Occasionally, respondent's fail to honor the terms of WSHRC conciliation agreements. In that case, "[i]f an agreement and order for the elimination of an unfair practice made under RCW 49.60.240 is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:"
(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;
(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or
(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310.
WAC 162-08-109 (emphasis added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, July 24, 2018

Accent Discrimination In WA State

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, is it illegal for employers to discriminate against employees based upon foreign accentHere's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

WASHINGTON 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 (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military statusHIV/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.

ACCENT DISCRIMINATION IS NATIONAL ORIGIN DISCRIMINATION

In Washington, "[n]ational 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) (internal quotation marks and citation omitted) (hyperlinks added). Thus, under the the Washington Law Against Discrimination, national origin discrimination includes discrimination based upon foreign accent.

THE NINTH CIRCUIT

Moreover, the Ninth Circuit has found that employers face a heavy burden in accent discrimination cases as they could easily "use an individual’s foreign accent as a pretext for national origin discrimination." See id. at 579 (internal quotation marks and citation omitted). Accordingly, courts tend to thoroughly scrutinize adverse employment decisions against employees based upon claims of inadequate oral communication skills. See id. Ultimately, an employer’s adverse employment decision (e.g., promotion, termination, write-ups, etc.) "may be predicated upon an individual’s accent when--but only when--it interferes materially with job performance." Id. (quoting Fragante v. City and Cy. of Honolulu, 888 F.2d 591, 596 (9th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990)). Otherwise, the employer may be facing liability under the Washington Law Against Discrimination for national origin discrimination based upon foreign accent.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, June 19, 2018

Monell Liability

by Gregory Williams, Esq. | Can a municipality, local government unit, or local government official be subject to liability for violation of civil rights? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

SECTION 1983

To state a claim under 42 U.S.C. § 1983 (§ 1983) –Civil Action For Deprivation of Rights– a plaintiff must not only allege the violation of a right secured by the Constitution and laws of the United States, the plaintiff must also show that the alleged deprivation was committed by a “person” acting under color of state law.  West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40, 56 USLW 4664 (1988) (citation omitted) (quotation marks omitted).  If a defendant’s conduct satisfies the state action requirement of the Fourteenth Amendment, that conduct is also action under color of state law and will support a suit under §1983.  Id. at 49 (quotation marks omitted).

MUNICIPALITIES, LOCAL GOVERNMENT UNITS, 
AND LOCAL GOVERNMENT OFFICIALS

Under § 1983 –which imposes liability upon every person who, acting under color of the law of any state or territory or the District of Columbia, causes a deprivation of federal rights– municipalities, local government units, and local government officials sued in their official capacities are “persons” and can be subject to liability.  14A C.J.S. Municipalities § 433 (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); 42 U.S.C.A. § 1983; 14A C.J.S. Official Capacity Actions, § 445 (2006) (citing Monell, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)).  And a municipal official under a § 1983 action in his or her official capacity is treated as an action against the municipality entity itself.  14A C.J.S. Official Capacity Actions, § 445 (2006) (citations omitted).

MONELL LIABILITY

In order to establish Monell liability against municipalities, local government units, and local government officials sued in their official capacities, a plaintiff must show a constitutional right violation resulting from either (A) an employee acting pursuant to an expressly adopted official policy; (B) an employee acting pursuant to a longstanding practice or custom; or (C) an employee acting as a “final policymaker.”  Delia v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010) (citing Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.2003); see Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir.2002); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992)) (quotation marks omitted).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw

Monday, June 18, 2018

Washington State Employees & Employment Discrimination

by Gregory Williams, Esq. | Under Washington law, may State employees pursue discrimination claims against the State based on violations of the Washington Law Against Discrimination (WLAD)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON 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 (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 (i.e., discharge, expel, or otherwise discriminate) against a person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.

WA STATE CONSTITUTION

The answer to the issue presented is more procedural than substantive.  As an initial matter, Article II, section 26, of the Washington State Constitution provides that “The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” Skokomish Indian Tribe v. France, 269 F.2d 555, 561 (9th Cir. 1959) (emphasis added); Wash. Const. art. II, § 26. However, when the WLAD was enacted in 1949, it did not specifically waive the State’s sovereign immunity to suit in court.  Blair v. Washington State University, 108 Wn.2d 558, 576, 740 P.2d 1379 (Wash. 1987) (internal citation omitted).

WA STATE CIVIL PROCEDURE (RCW 4.92)

As of the date of this article, the vehicle for State employees to hold Washington State liable for violations of WLAD is found elsewhere (NOTE: State whistleblowers are subject to additional requirements under RCW 42.40 and the Washington State Human Rights Commission; however, this article will not address those requirements). The relevant law is found under Washington State Civil Procedure, Chapter 4.92.090 RCW, and is in part as follows:

(1) The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

Id. (emphasis added). Moreover, the Washington Supreme Court has held that a discrimination action under WLAD is a tort.  Blair v. Washington State University, 108 Wn.2d 558, 576, 740 P.2d 1379 (1987) -- incidentally, a “tort” is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.

Thus, a Washington State employee may hold the State liable for violating the WLAD. However–and this is critical–before an employee can both file suit against the State pursuant to WLAD and attempt to establish liability, the employee must first conform to the stringent presentment and filing prerequisites under RCW 4.92See, e.g.Blair v. Washington State University, 108 Wn.2d at 576 (There is no indication of legislative intent to exempt discrimination actions from the requirements of RCW 4.92.110). 


LEARN MORE

If you would like to learn more about the Washington Law Against Discriminationthe stringent presentment and filing requirements under RCW 4.92, or whistleblower retaliation, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, June 15, 2018

Significant Differences Between Title VII & WLAD Backpay Provisions

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination (WLAD), are there significant differences between their respective backpay provisions? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE DAMAGES PROVISIONS

The relevant damages provision of Title VII states as follows:
(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5(g)]
42 U.S.C. § 1981a(b)(2) (hyperlink added). And the relevant damages provision of WLAD states as follows:
(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have 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 this chapter or the United States Civil Rights Act of 1964....
RCW 49.60.030(2) (emphasis added) (hyperlinks added). Title VII and WLAD differ significantly in terms of plain language, operative-term usage, and scope.


DIFFERENCE IN PLAIN LANGUAGE

The plain language of Title VII and WLAD show that each law treats backpay differently than the other. The court in Martini explained the difference, as follows:
The remedies section of Washington's law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington's law against discrimination provides for a general award of "actual" (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.
Martini v. The Boeing Company, 137 Wn.2d 357, 374-75 (Wash. 1999). Accordingly, WLAD provides a much broader mandate for an award of backpay than Title VII. Both laws can be further distinguished based on their operative terms.


DIFFERENCE IN OPERATIVE-TERM USAGE

Title VII and WLAD each use different operative terms in relation to an award of backpay for breaches of their respective provisions. The court in Martini also addressed this issue, as follows:
The use of the word "may" in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute. 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court "may" order affirmative action which "may" include reinstatement with or without back pay). In contrast, Washington's law against discrimination is more categorical, mandating that a victim of a violation of the statute "shall have a civil action ... to recover the actual damages." RCW 49.60.030(2) (emphasis added).
Martini v. The Boeing Company, 137 Wn.2d at 375 (hyperlinks added). Thus, "[t]he legislative command to award damages is ... stronger in Washington's statute than in title VII." Id., 137 Wn.2d at 375.


DIFFERENCE IN SCOPE

Lastly, the scope of WLAD is broader than Title VII based on both covered protected classes and the mandated policy for interpreting their respective provisions. Particularly, unlike WLAD, Title VII neither covers discrimination based on marital status, age, or disability; nor contains a direction for liberal interpretationId., 137 Wn.2d at 372-73.


CONCLUSION & IMPLICATIONS

Title VII and WLAD have significantly different remedies provisions -- espectially in relation to backpay. Under Title VII, backpay is treated as an equitable remedy, whereas under WLAD it is treated as actual or compensatory damages. Ultimately, "[t]he legislative command to award damages is ... stronger in Washington's statute ...." Id., 137 Wn.2d at 375.

Arguably, the differences in available relief might produce an effective argument against an assertion of the Priority of Action Rule.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Title VII: Religious Exemption & Non-Religious Discrimination

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, are religious organizations exempt from the reach of employment discrimination claims NOT based on religionHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE RELIGIOUS ENTITIES EXEMPTION


The relevant law is contained in 42 U.S.C. §2000e-1(a) as follows:

(a) Inapplicability of subchapter to certain aliens and employees of religious entities. 
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Id.  Simply put, according to this religious exemption, “Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-1, exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.” Saeemodare v. Mercy Health Services-Iowa Corp., C 05-4136-MWB (US Dist. Ct.  N.D. Iowa, Western Division, 2006) (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329 (1987)) (internal quotation marks omitted) (emphasis added).

CONCLUSION


Religious organizations may not claim the religious exemption against a Title VII discrimination claim based on a protected class other than religion; stated differently, the Title VII exemption will only apply to a plaintiff's claims of religious discrimination by a religious organization.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Wednesday, May 9, 2018

Definition of Prima Facie Case

by Gregory Williams, Esq. | Under Washington State laws, what is a prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE DICTIONARY

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id.


THE CASELAW

The Washington State Supreme Court has declared, "* * * A 'prima facie case' is one where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted by a jury or other trier of the fact." Nopson v. City of Seattle, 33 Wn.2d 772, 812, 207 P.2d 674, (1949) (citing McCoy v. Courtney, 25 Wash.2d 956, 962, 172 P.2d 596, 600, 170 A.L.R. 603) (hyperlink added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, May 8, 2018

Disparate Treatment: A Closer Look


by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, how does a plaintiff establish a prima facie case of disparate treatment? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework (Framework) has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen, 189 Wn.2d at 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis added).
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis & hyperlink added). 

(To learn about the entire Framework and how it is applied, read our recent article entitled: The McDonnell Douglas Burden-Shifting Framework)


DISPARATE TREATMENT

Disparate treatment is a legal theory that occurs "when an employer treats some people less favorably than others" because of membership in a protected class. Alonso v. Qwest Communications Company, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013). "To esablish a prima facie disparate treatment case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status." Id. (citing Johnson v. Dep't of Soc. & Health servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)) (hyperlink added). There are several formulations for the elements of a prima facie case of disparate treatment. For example, take our disparate treatment tests based on (1) adverse employment action and (2) termination of employment:



LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Saturday, May 5, 2018

The Tort of Battery

by Gregory Williams, Esq. | Under Washington State laws, what is the tort of batteryHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


DEFINITION OF A TORT

A tort is "[a] civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another." Black's Law Dictionary 1526 (8th ed. 2004).


THE TORT OF BATTERY

In Washington State, a "battery" is a tort defined as "an intentional and unpermitted contact with the plaintiff's person." Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 504, 325 P.3d 193 (2014). The plaintiff must show that the defendant did the following to establish liability for battery:
(a) he [or she] acts intending to cause a harmful or offensive contact with the [plaintiff or a third party], or an imminent apprehension of such contact, and
(b) a harmful or offensive contact with the [plaintiff] directly or indirectly results.
Id. (citing Restatement (Second) of Torts § 13 (1965)).


THE INTENT ELEMENT

Establishing intent on the part of the defendant is an element of battery. "[T]he 'intent' element of battery is satisfied where a defendant knows to a 'substantial certainty' that his actions will result in the harmful or offensive touching." Id. at 504-05 (internal citations omitted). Thus, an individual "commits a battery where he or she performs '[a]n act which, directly or indirectly, is the legal cause of a harmful contact with another's person' and that act is intentional, is not consented to, and is otherwise unprivileged." Id. at 505 (citing, Garratt v. Dailey, 46 Wn.2d 197, 200, 279 P.2d 1091 (1955) (quoting Restatement (Second) of Torts § 13 (1934)) (internal quotation marks omitted). And "[t]hese elements are met where the plaintiff's consent to the contact is procured by fraud or duress." Id. (citing, Garratt, 46 Wn.2d at 201 (quoting Restatement (Second) of Torts § 13(b)) (internal quotation marks omitted).


THE OFFENSIVE CONTACT ELEMENT

"A bodily contact is offensive if it offends a reasonable sense of personal dignity." Id. (citing, Restatement (Second) of Torts § 19). Accordingly, "an offensive contact does not have to result in physical injury to constitute a battery." Id. (referencing, Seigel v. Long, 169 Ala. 79, 53 So. 753 (1910) (facts established claim for battery where defendant pushed plaintiff's hat back in order to see his face); Crawford v. Bergen, 91 Iowa 675, 60 N.W. 205 (1894) (facts established claim for battery where defendant placed his hand on the plaintiff's shoulder and asked him an insulting question)).


EXAMPLE: KUMAR v. GATE GOURMET, INC.

In Kumar v. Gate Gourmet, Inc., the employer (Gate Gourmet, Inc.) prohibited employees from both bringing food with them to work and leaving the premises to obtain food -- the policy was based upon security concerns. A group of employee-plaintiffs decided to sue their employer for violation of their religious beliefs when the employer provided them with beef/pork-based foods (in violation of their religion) for lunch that were deceptively designated by the employer as turkey-based, and the vegetarian options actually included animal by-products. When the employees complained, the employer refused to alter the plaintiffs' meals.

One claim, inter alia, was based on the tort of battery. Accordingly, the employees essentially alleged that "Gate Gourmet deceived them into eating food in violation of their religious beliefs, knowing that this would cause an offensive contact." See id. at 505. The Washington State Supreme Court held that the "allegations are sufficient to support a claim for battery at this stage." Id. 


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Thursday, May 3, 2018

McDonnell Douglas Framework (Step 1): The Prima Facie Case

by Gregory Williams, Esq. | Under the McDonnell Douglas Framework, (Framework), as applied by Washington State courts, how does a plaintiff establish step 1 -- the prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).
(To learn about the entire Framework and how it is applied, read our recent article entitled: The McDonnell Douglas Burden-Shifting Framework)

THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis and hyperlink added). 

A CLOSER LOOK: STEP 1 -- THE PRIMA FACIE CASE

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id. 

In Washington State, legal theories under the Washington Law Against Discrimination (proven via circumstantial evidence) have unique and separate formulations for the prima facie case. For example, here are prima facie case requirements for two common legal theories, inter alia:

1. HOSTILE WORK ENVIRONMENT (HARASSMENT): to establish a prima facie case of hostile work environment, the plaintiff must show: (1) that the harassment was unwelcome; (2) that the harassment was based on membership in a protected class; (3) that the harassment affected the terms and conditions of employment; and (4) that the harassment can be imputed to the employer. Glasgow v. Georgia-Pacific Corporation, 103 Wn.2d 401, 406-07, 693 P.2d 708 (Wash. 1985). Take our Hostile Work Environment Video Test:

2. UNLAWFUL RETALIATION: to establish a prima facie case of unlawful retaliation, the plaintiff must show (1) that the he/she engaged in a protected activity (e.g., complaining to the employer about job discrimination based on a protected class, participating in an investigation to determine whether discrimination occurred, etc.); (2) that the plaintiff experienced an adverse employment action; and (3) that there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Company, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013) (citing, Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 279 P.3d 902 (Div. 2 2012), overruled on other grounds by Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014)). Take our Unlawful Retaliation Video Test:


Additional legal theories under the Washington Law Against Discrimination include, but are not limited to, the following: disparate treatment, disparate impact, failure to provide reasonable accommodations, etc. Again, each theory has its own requirements for a prima facie case. Moreover, some elements of the prima facie case may contain additional requirements.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Saturday, April 28, 2018

McDonnell Douglas Framework (Step 2): The Employer's Burden

by Gregory Williams, Esq. | Under the McDonnell Douglas Framework, (Framework), as applied by Washington State courts, how does a defendant-employer prove step 2 -- the employer's burden? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
(To learn about the entire Framework and how it is applied, read our recent article entitled: The McDonnell Douglas Burden-Shifting Framework)

THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis added)..
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis & hyperlink added). 

A CLOSER LOOK: STEP 2 -- THE EMPLOYER'S BURDEN

According to the Framework, "after the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Id. at 533 (citing Scrivener, 181 Wn.2d at 446, 334 P.3d 541) (hyperlink added). "The employer need not persuade the court that it was actually motivated by the proffered reasons." Id. (citing, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (internal quotation marks omitted) (hyperlink added). "The employer's burden is merely one of production, rather than persuasion." Id. (citing, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)) (hyperlink added). "The employer need only introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." Id. (citing St. Mary's Honor Ctr., 509 U.S. at 509) (hyperlink added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.