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Monday, March 18, 2019

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


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

OREGON & WASHINGTON

We recently upgraded our FREE Oregon Legal Forms and FREE Washington State Legal Forms websites. These community resources were designed and developed by Attorney Gregory Williams, and he is the webmaster. Each website provides access to trusted legal forms and offers reliability reviews for your reference. Free forms are categorized and include, but are not limited to, the following subjects:
  • Bankruptcy
  • Divorce 
  • Child Support
  • Family Law
  • Parenting Plans
  • Power of Attorney
  • Wills & Health Care Directives 
  • and much more...

ALASKA, ARIZONA, CALIFORNIA, HAWAII, & IDAHO

We've received an overwhelming response to our FREE Legal Forms websites, and we're in the process of upgrading the following states by (1) adding security certificates, (2) making them mobile friendly, and (3) migrating them to a safer and more reliable hosting provider. 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.

WA State Torts: Wrongful Termination in Violation of Public Policy

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


WRONGFUL TERMINATION

Washington has been an “at-will” employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223 (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)). According to this doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Id., 43 P.3d 1223 (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotations omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id., 43 P.3d 1223.

However, there are three recognized exceptions to that general at-will employment rule: (1) The Statutory Exception; (2) The Judicial Exception and; (3) The Contractual Exception. This article will address the Judicial Exception.


THE JUDICIAL EXCEPTION: WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY


Washington courts have recognized a narrow public policy exception to an employer’s right to discharge an employee; this exception is commonly known as “wrongful termination in violation of public policy.” Id., 43 P.3d 1223 (referencing Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to “for-cause” employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy)). Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy. Id., 43 P.3d 1223. By recognizing this public policy exception, Washington State Supreme Court has expressed its unwillingness to shield an employer’s action which otherwise frustrates a clear manifestation of public policy. See id. at 154, 43 P.3d 1223.

This legal theory is known as a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. In Washington State, there are typically two ways to prove the tort of wrongful termination in violation of public policy: (1) via the Four-Scenarios Framework; and (2) via the Perritt Framework.


THE FOUR-SCENARIOS FRAMEWORK

"In Thompson v. St. Regis Paper Co., ... [the Washington State Supreme Court] adopted the tort of wrongful discharge in violation of public policy as a narrow exception to the at-will doctrine." Martin v. Gonzaga University, 425 P.3d 837, 842-43, 191 Wn.2d 712 (Wash. 2018) (citing Thompson, 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984)). "[This tort] has generally been limited to four scenarios:

[1] where employees are fired for refusing to commit an illegal act;
[2] where employees are fired for performing a public duty or obligation, such as serving jury duty;
[3] where employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims; and
[4] where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing."

Id., 191 Wn.2d 712 (citing Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)) (internal citations and quotations marks omitted). "The elements of wrongful termination in violation of public policy were set forth in Thompson and refined in Wilmot [v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18 (1991),]" as follows[:]

[1] First, ... [the plaintiff] has the burden to show that his discharge may have been motivated by reasons that contravene a clear mandate of public policy ... [;]
[2] Second[,] ... [t]he plaintiff [is required] to show that the public-policy-linked conduct was a significant factor in the decision to discharge the worker[:]
[a] [t]he plaintiff must first establish a prima facie case by producing evidence that the public-policy-linked conduct was a cause of the firing, and may do so by circumstantial evidence[;]
[b] [i]f the plaintiff succeeds in presenting a prima facie case, the burden then shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for the discharge ... [;]
[c] [i]f the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer's stated reason is legitimate, the [public-policy-linked conduct] was nevertheless a substantial factor motivating the employer to discharge the worker."
Martin, 425 P.3d at 843, 191 Wn.2d 712 (internal citations and quotation marks omitted).


THE PERRITT FRAMEWORK

"In Gardner, ... [the Washington State Supreme Court] adopted a four-part framework based on a treatise written by Henry Perritt to resolve a wrongful discharge suit that did not fit neatly into one of those four recognized ... [scenarios]." Id., 191 Wn.2d 712 (citing Gardner, 128 Wn.2d at 941, 913 P.2d 377 (citing HENRY H. PERRITT JR., WORKPLACE TORTS: RIGHTS AND LIABILITIES (1991))) (emphasis added). "The Perritt test has four factors: 

(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).
(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).
(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).
(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element)." 

Id. (internal citations and quotation marks omitted).


THE BECKER-ROSE RULE

"[I]n Becker and Rose, [the Washington State Supreme Court] ... clarified that the Perritt [F]ramework should not be applied to a claim that falls within ... [the Four-Scenarios Framework] of wrongful discharge in violation of a public policy." Id., 191 Wn.2d 712 (citing Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 258-59, 359 P.3d 746 (2015) ("When the plaintiffs case does not fit neatly within one of these scenarios, a more refined analysis may be necessary, and the four-factor Perritt analysis may provide helpful guidance. But such detailed analysis is unnecessary here." (footnote and citation omitted)); Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 277-78, 287, 358 P.3d 1139 (2015) ("We note that in other instances, when the facts do not fit neatly into one of the four above-described categories, a more refined analysis may be necessary. In those circumstances, the courts should look to the four-part Perritt framework for guidance. But that guidance is unnecessary here.")).


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.

Monday, March 11, 2019

WA State Torts: Public Disclosure of Public Facts

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


PUBLIC DISCLOSURE OF PRIVATE FACTS

"Washington recognizes a common law right to privacy." White v. Township of Winthrop, 128 Wn.App. 588, 593-94, 116 P.3d 1034, (Div. 3 2005) (citing Reid v. Pierce County, 136 Wash.2d 195, 207, 961 P.2d 333 (1998)). A violation of this right is considered a tort. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained.

"Public Disclosure of Private Facts" is a privacy tort in Washington State. Washington courts "base actions for ... [commission of this tort] as articulated in RESTATEMENT (SECOND) OF TORTS § 652D (1977):

'One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.'

White, 128 Wn.App at 593-94 (citing Reid, 136 Wash.2d at 205, 961 P.2d 333) (internal citations omitted).


EXAMPLES

"As concerns the general nature of matters protected by the right of privacy:

'Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread [b]efore the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.'"

White, 128 Wn.App. at 594 (citing Cowles Publ'g Co. v. State Patrol, 109 Wash.2d 712, 721, 748 P.2d 597 (1988)) (internal citations omitted).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State 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.

Monday, March 4, 2019

WA State Torts: Defamation

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


DEFAMATION

Defamation is a tort in Washington State. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. To succeed on a claim of defamation, a plaintiff must typically prove the following four elements:
  1. false and defamatory language on the part of the defendant;
  2. an unprivileged communication of the defamatory language by the defendant to a third person; 
  3. fault on the defendant's part; and
  4. damages.
See Robel v. Roundup Corporation, 148 Wn.2d 35, 55 (Wash. 2002).


THE THRESHOLD QUESTION

However, "before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion." Id. The issue of "[w]hether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court." Id. (internal citations omitted).


THE DUNLAP 3-FACTOR TEST

In order to determine whether words "should ... be viewed as nonactionable opinions, ... [the courts] consider the 'totality of the circumstances' surrounding those statements: 'To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts. Id. at 56 (citing Dunlap v. Wayne, 105 Wash. 2d 529, 539, 716 P.2d 842 (1986) (regarding as a nonactionable opinion, not a statement of fact, opposing counsel's statement to plaintiff's employer that plaintiff had been soliciting a kickback).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State 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.

Monday, February 25, 2019

The Implied Right of Action Rule

by Gregory Williams, Esq. | Under Washington State laws, what is the Implied Cause of Action Rule? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990). This judicial canon has its roots in federal law as well as the Restatement of Torts.


THE JUDICIAL CANON

The Implied Cause of Action Rule is a judicial canon directing that "when a statute ... [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland's Statutes and Statutory Construction § 55.03 (4th ed. 1973)." Bennett v. Hardy, 113 Wn.2d 113 Wn.2d 912, 920, 784 P.2d 1258, (1990) (alteration in original) (emphasis added) (internal quotation marks omitted) (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state's labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee's labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) ("[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy")).

"The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy." Bennett v. Hardy, 113 Wn.2d at 920 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).


THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that "The Restatement of Torts recognizes the implied right of action [as well]:
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
Bennett v. Hardy, 113 Wn.2d at 920 (citing Restatement (Second) of Torts § 874A (1979)).


THE ELEMENTS

Washington courts have borrowed "from the test used by federal courts in determining whether to imply a cause of action." Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:
1. whether the plaintiff is within the class for whose "especial" benefit the statute was enacted;
2. whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;
3. whether implying a remedy is consistent with the underlying purpose of the legislation.
Id. at 920-21 (internal citations omitted) (emphasis added).

Lastly, the court may make two important assumptions under the Implied Right of Action Rule: (1) "[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and [(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights." See id. at 919-20.


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.

Monday, February 18, 2019

WA State Human Rights Commission: Damages for Humiliation & Suffering

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) laws, what is the maximum amount of damages that an appointed administrative law judge can award to an employment discrimination claimant for humiliation and mental sufferingHere's my point of view (NOTE: please read our DISCLAIMER before proceeding.)

(Some of the links in this article will take the reader to one of our company websites: Washington State Human Rights Commission Digest)


THE WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination, 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 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. See RCW 49.60.230; RCW 42.40. 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.


THE WASHINGTON STATE HUMAN RIGHTS COMMISSION

The 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 education, training and outreach activities.


THE RELEVANT LAW: RCW 49.60.250

One of WSHRCs powers is "[t]o receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in th[e] [Washington Law Against Discrimination]." RCW 49.60.120(4). Accordingly, the relevant law is found under RCW 49.60.250, and it states as follows:

Hearing of complaint by administrative law judge—Limitation of relief—Penalties—Order—Arbitration.
. . . 
(5) If, upon all the evidence, the administrative law judge finds that the respondent has engaged in any unfair practice, the administrative law judge shall state findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, an admission or restoration to full membership rights in any respondent organization, or to take such other action as, in the judgment of the administrative law judge, will effectuate the purposes of this chapter, including action that could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed twenty thousand dollars, and including a requirement for report of the matter on compliance. Relief available for violations of RCW 49.60.222 through 49.60.224 shall be limited to the relief specified in RCW 49.60.225.
. . . 
RCW 49.60.250(5) (emphasis added).


CONCLUSION

Under WSHRC laws, the maximum amount of damages that an appointed administrative law judge can award to an employment discrimination claimant for humiliation and mental suffering is $20,000. This limitation only applies to arbitration proceedings through the Washington State Human Rights Commission; it does not apply to plaintiffs that litigate employment discrimination claims through other avenues such as Washington State or federal courts.


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.

Monday, February 11, 2019

Suing Co-Workers for Hostile Work Environment (Harassment)

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, what are two common approaches for employees (or former employees) to sue co-workers for creating a hostile work environmentHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


WASHINGTON LAW AGAINST DISCRIMINATION

According to 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 is a WLAD legal theory, and plaintiffs typically pursue this claim against co-workers via two approaches: (1) RCW 49.60.180; and (2) RCW 49.60.220.


THE RCW 49.60.180 APPROACH

Under the first approach, the relevant hostile work environment (harassment) statute is RCW 49.60.180(3), and it states as follows:
It is an unfair practice for any employer:
. . .
(3) To discriminate against any person in compensation or in other terms or 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: 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.
. . .
Id. (emphasis added). Accordingly, to establish a prima facie claim of hostile work environment against an employer, 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 employerSee, e.g., Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985)Notice that under RCW 49.60.180(3), the term "employer" is vague; WLAD defines that term as follows:
(11) "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.
RCW 49.60.040(11) (emphasis added).

Thus, under the RCW 49.60.180 Approach, the plaintiff suing a co-worker for creating a hostile work environment typically alleges either (1) that the harassing co-worker was the plaintiff's employer; or (2) that the harassing co-worker was acting in the interest of the employer when the unlawful harassment occurred. I will elaborate on when a co-worker is "acting in the interest of the employer" in another article.


THE RCW 49.60.220 APPROACH

The second common approach to suing co-workers for creating a hostile work environment (harassment) in violation of WLAD is based upon RCW 49.60.220 (hereinafter, "Aiding & Abetting Statute), and it states as follows:
It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.
Id.  WLAD defines the term "person" to "include[ ] one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons . . . ." RCW 49.60.040(19). Therefore, under the Aiding & Abetting Statute, a "person" can include, but is not limited to, a co-worker, supervisor, or manager.

The Aiding & Abetting Statute "focuses on conduct that encourages others to violate the WLAD." Jenkins v. Palmer, 116 Wn.App 671, 675, 66 P.3d 1119 (Div. 2 3003). It's important to note that "[t]he references to 'aid, abet, encourage, or incite' and to 'prevent any other person from complying' show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD." Id. at 675-76 (citing RCW 49.60.220) (emphasis added).

Thus, arguably, a co-worker may be liable under WLAD for creating a hostile work environment if (1) that co-worker aids, abets, encourages, or incites the employer or any person acting in the interest of the employer (e.g., a manager) in the commission of the unlawful hostile work environment (harassment); or (2) that co-worker attempts to obstruct or prevent any other person (e.g., a manager) from complying with WLAD provisions regarding hostile work environment (harassment). See id. at 671-77.


WLAD REMEDIES

If a plaintiff proves that an employer engaged in an unfair practice under WLAD, then that plaintiff may seek associated remedies against the employer. The relevant statute is RCW 49.60.030(2), and it 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 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
. . . 
Id. (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, January 15, 2019

The McDonnell Douglas Burden Shifting Framework

by Gregory Williams, Esq. | Under Washington State law, what is the McDonnell Douglas Burden-Shifting Framework (hereinafter, "McDonnell Douglas Framework" or "McDonnell Douglas") and how is it appliedHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


 THE ORIGIN OF THE FRAMEWORK

The McDonnell Douglas Framework is also known as a burden-shifting scheme. "The burden-shifting schemes, developed initially in the federal courts, were an effort to formulate uniform rules for making a prima facie case." Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993) (hyperlink added). "These rules were never intended as a charge to the jury." Id. (citing, United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). "Recognizing the 'lack of harmony' among judges on the rules applicable to establishing a prima facie case under title VII, the Supreme Court addressed the difficulty by formulating a 3-step burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)." Id. (hyperlink added).


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 & 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 & 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 & hyperlink added). 

THE POLICY BEHIND THE FRAMEWORK

"The purpose of establishing the prima facie elements under McDonnell Douglas is to 'eliminate[ ] the most common nondiscriminatory reasons for the plaintiff's rejection,' namely, that the plaintiff is unqualified for the position or that the position no longer exists." Mikkelsen, 189 Wn.2d at 531 (citing, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (emphasis added) (hyperlink added).


WASHINGTON STATE ADOPTS THE FRAMEWORK

Intentional discrimination is difficult to prove. See Mikkelsen, 189 Wn.2d at 526 (internal citations omitted). Direct, 'smoking gun' evidence of discriminatory motivation is uncommon, because there will rarely be "eyewitness testimony as to the employer's mental processes." Id. (internal citations omitted). As a result, Washington State courts have "repeatedly emphasized that plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action." Id. (internal citations and quotation marks omitted). Accordingly, the Washington State Supreme Court "has adopted the standard articulated by McDonnell Douglas in discrimination cases that arise out of RCW 49.60.180 and the common law." Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993) (citing, Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 364, 753 P.2d 517 (1988); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 136, 769 P.2d 298 (1989)) (emphasis added) (hyperlinks added).


SUMMARY JUDGMENT

At summary judgment, the following are special considerations, inter alia, when applying the McDonnell Douglas Framework to WLAD claims:
[1] Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation. 
[2] When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.
[3] To overcome summary judgment, the plaintiff needs to show only that a reasonable jury could find that discrimination was a substantial factor in the employer's adverse employment action. 
See Mikkelsen, 189 Wn.2d at 527-28. 


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, January 8, 2019

WLAD: Harassment & Offensive Conduct At Work

by Gregory Williams, Esq. | Pursuant to a claim of hostile work environment under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the first element -- that the harassment was offensive and unwelcome? 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.

HOSTILE WORK ENVIRONMENT

Generally, to establish a prima facie claim of hostile work environment against an employer, 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 employerSee, e.g., Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985)This article will address solely the first (1st) element — that the harassment was offensive and unwelcome.

OFFENSIVE & UNWELCOME CONDUCT

To establish offensive and unwelcome conduct, the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive. See idTypically, an employee's internal complaints about the harassment, based on a protected class, are evidence that the employee subjectively believed he/she was being harassed. Thus, an employee's properly drafted complaints of discrimination to the employer/management can be a powerful step in establishing this element.


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, December 15, 2018

Definition of State Employee Whistleblower

by Gregory Williams, Esq. | Under Washington State law, what is the definition of state employee whistleblower status? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

I. 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; creednational originhonorably 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.

II. DEFINITION OF STATE EMPLOYEE WHISTLEBLOWER

In Washington State, there are generally two categories for state employee whistleblower status: (1) reporting and/or perceived reporting; and (2) reprisals and/or retaliatory action.

(1) Regarding Reporting & Perceived Reporting

According to Washington State law, the term “whistleblower” means 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; 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.


(2) Regarding Reprisals & Retaliatory Action

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, 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, 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.


III. 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. RCW 42.40.020(1).

“Employee” means any individual employed or holding office in any department or agency of state government. RCW 42.40.020(2).

“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. RCW 42.40.020(3).

“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;

(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; or

(vi) Which violates the administrative procedure act or analogous provisions of law that prohibit ex parte communication regarding cases or matters pending in which an agency is party between the agency's employee and a presiding officer, hearing officer, or an administrative law judge. The availability of other avenues for addressing ex parte communication by agency employees does not bar an investigation by the auditor. RCW 42.40.020(6)(a)(i)-(vi).

“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 RCW 42.40.030. RCW 42.40.020(6)(b).

“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(7).

IV. FURTHER 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. RCW 42.40.020(4).

“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. RCW 42.40.020(5).

“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. RCW 42.40.020(8).

“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(9).


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.