WLAD: Definition of Disability

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), RCW Chapter 49.60, what is the definition of disability? 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 perceived 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. 

DEFINITION OF DISABILITY

For those employees claiming disability discrimination in Washington, one primary issue is whether their disability is recognized under WLAD? According to WLAD, a “disability” means the presence of a sensory, mental, or physical impairment that:

1. Is medically cognizable or diagnosable;
2. Exists as a record or history; or
3. Is perceived to exists whether or not it exists in fact.

RCW 49.60.040(7)(a).

Additionally, a disability exists whether it is temporary or permanent, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job or whether or not it limits any other activity within the scope WLAD. RCW 49.60.040(7)(b). And for purposes of this definition, “impairment” includes, but is not limited to:

1. Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or
2. Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organ brain syndrome, emotional or mental illness, and specific learning disabilities.

RCW 49.60.040(7)(c).

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

1. The impairment must have a substantially limiting effect upon the individual’s ability to perform his or her job, the individual’s ability to apply or be considered for a job, or the individual’s access to equal benefits, privileges, or terms or conditions of employment; or
2. The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.

RCW 49.60.040(7)(d). For purposes of RCW 49.60.040(7)(d), a limitation is not substantial if it has only a trivial effect.  Keep in mind that the laws on this subject can be complex and confusing and there are many more to consider in prosecuting a claim of disability discrimination.

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

Seizure, Derivative Contraband, and Search Warrants: WA State

by Gregory Williams, Esq. | Under Washington State law, can city police departments confiscate personal property derivative contraband without process when the seizure is incident to a search warrant? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

In 1992, Division II held that the State of Washington cannot confiscate otherwise legally held property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures.  State v. Alaway, 64 Wn.App. 796, 799-800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992)(internal quotation marks and internal citations omitted).  Blacks Law Dictionary, p. 1325 (Rev 8^th Ed. 2004), defines “confiscate” as follows: “CONFISCATE.  To seize (property) by authority of law”; and “derivative contraband” is property that is not contraband in and of itself but is used in connection with contraband.  State v. Alaway, 64 Wn.App. 796, 799-800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992).

Accordingly, city police departments can only seize property used in connection with contraband by using proper forfeiture procedures under Washington statutory law. Washington’s statutory forfeiture procedure for seizures of property is contained in RCW 69.50.505. State v. Alaway, 64 Wn.App. 796, 800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992).

Under relevant portions of Chapter 69.50.505(2) RCW, seizure of personal property without process may be made if: (a) The seizure is incident to … [a] search under a search warrant ; and RCW 69.50.505(3) essentially states that in the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture shall be deemed commenced by the seizure — in that case, the law enforcement agency under whose authority the seizure was made is required to, inter alia, cause notice to be served within fifteen days following the seizure on the owner of the property seized.  Chapter 69.50.505(2)-(3) RCW (emphasis added).

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.

–gw

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 (9^th Cir. 2010) (citing Webb v. Sloan, 330 F.3d 1158, 1164 (9^th Cir.2003); see Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9^th Cir.2002); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9^th 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

Illegal Contracts In Washington State

by Gregory Williams, Esq. | In the state of Washington, can one enforce a contract that is in violation of a statutory law? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

ILLEGAL & UNENFORCEABLE CONTRACTS

A contract that is in conflict with statutory requirements is illegal and unenforceable as a matter of law.  Failor’s Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 886 P.2d 147 (1994) (Medicaid reimbursement schedules promulgated in violation of statutory requirements were void and unenforceable).  Where a contract grows out of or is connected to an illegal act, Washington courts will not enforce the contract and will leave the parties as the court found them.  State v. Pelkey, 58 Wn.App. 610, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted).  Thus, as a general rule, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.  State v. Pelkey, 58 Wn.App. 610, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted).

STATE v. PELKEY

In Pelkey, a criminal defendant allegedly attempted to bribe a city police officer by giving him goods and money to be kept appraised of vice surveillance; however, Pelkey’s criminal case was ultimately dismissed, and Pelkey sought return of said goods and money.  The City argued that the property did not have to be returned, because no seizure had occurred and Pelkey filed his motion in the wrong court.  The court then refused to honor the parties’ so-called contractual agreement, leaving them as the court found them, after reasoning that a contract that is contrary to the terms and policy of an express legislative enactment [i.e., bribery] is illegal and unenforceable.  See State v. Pelkey, 58 Wn.App. 610, 794 P.2d 1286 (Div. 1 1990).

LEARN MORE

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

Negligent Supervision: WA State

by Gregory Williams, Esq. | Under Washington State law, what is the theory of negligent supervision? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

NEGLIGENT SUPERVISION

Negligent supervision creates a limited duty to control an employee for the protection of a third person, even when the employee is acting outside the scope of employment. S.H.C. v. Lu, 113 Wn.App. 511, 517, 54 P.3d 174 (Wash.App. Div. 1 2002) (citing Rodriguez v. Perez, 99 Wash.App. 439, 451, 994 P.2d 874, review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000) (citing Niece v. Elmview Group Home, 131 Wash.2d 39, 48, 929 P.2d 420 (1997))) (internal quotation marks omitted). Employer liability for negligent hiring, retention, and supervision arises from this duty. Id. (internal quotation marks omitted) (emphasis added). If an employee conducts negligent acts outside the scope of employment, the employer may be liable for negligent supervision. Id. (citing Rodriguez, 99 Wash.App. at 451, 994 P.2d 874) (internal quotation marks omitted). However, an employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others. Id. (citing Niece v. Elmview Group Home, 131 Wash.2d 39, 48-49, 929 P.2d 420 (1997)) (internal quotation marks omitted). In more simpler terms, a claim of negligent supervision is premised on a tortious or wrongful act by an unsupervised employee. Haubry v. Snow, 106 Wn.App. 666, 679, 31 P.3d 1186 (2001) (internal citations omitted).

THE PRIMA FACIE CASE

To establish a prima facie case, a plaintiff must show (1) an employee acted outside the scope of her employment; (2) the employee presented a risk of harm to other employees; (3) the employer knew or should have known of the risk; and (4) the employer’s failure to supervise was the proximate cause of injuries to other employees. Briggs v. Nova Services, 135 Wn.App. 955, 966-67, 147 P.3d 616 (2006) (internal citations 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

Negligent Misrepresentation -- Failure to Disclose

by Gregory Williams, Esq. | Under Washington State law, what are the elements to a claim of negligent misrepresentation based on a failure to disclose? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Restatement (Second) of Torts

The Washington State Supreme Court reaffirmed its adoption of the definition of negligent misrepresentation set forth in the Restatement (Second) of Torts:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (Wash. 2002) (internal quotation marks and citations omitted) (emphasis added). Negligent misrepresentation may be based on either an affirmative misstatement or a failure to disclose; this article will address the latter of the two bases.

The Elements: Failure To Disclose

In the case of  a factual dispute as to whether the defendant’s nondisclosure was material to the plaintiff’s decision to complete the transaction; a plaintiff claiming negligent misrepresentation–based on a failure to disclose–typically must prove each of the following by clear, cogent, and convincing evidence:

1. that the defendant had a duty to disclose to plaintiff the subject information;
2. that the defendant did not disclose this information to the plaintiff;
3. that the defendant was negligent in failing to disclose this information;
4. that the disclosure of this information would have caused plaintiff to act differently;
5. that plaintiff was damaged by the failure to disclose this information;

See 6A Wash.Prac., Wash. Pattern Jury Instr. Civ. WPI 165.02 (6th ed.). Please keep in mind that there are additional requirements within some of the elements presented above, but those more detailed requirements are beyond the scope of this article; this article is solely intended as a general presentation of legal theory.

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

The 8-Or-More-Employees Rule

by Gregory Williams, Esq. | Under Washington State Human Rights Commission regulations, who is counted as employed for purposes of both the Washington Law Against Discrimination and its definition of “employer“? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

The Washington State Law Against Discrimination (WLAD) defines “employer” as including 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. Only employers that fall within this definition are subject to WLAD. Accordingly, the Washington State Human Rights Commission has established the following regulations that dictate who is counted as employed for purposes of this definition:

...

(2) Time of calculation. A person will be considered to have employed eight if the person either:

(a) Had an employment relationship with eight or more persons for any part of the day on which the unfair practice is alleged to have occurred, or did occur; or 

(b) Had an employment relationship with an average of eight or more persons over a representative period of time including the time when the unfair practice is alleged to have occurred. 

An employment relationship is most readily demonstrated by a person’s appearance on the employer’s payroll. The representative period of time for (b) of this subsection will ordinarily be the twenty weeks prior to and including the date on which the unfair practice is alleged to have occurred. However, where this period will not accurately reflect the overall employment level, as in a seasonal industry, we will use the month during which the unfair practice is alleged to have occurred plus the preceding eleven months. 

(3)  PART TIME EMPLOYEES: Part time and full-time employees are counted the same. But on-call employees (such as volunteer firefighters) are considered employed at all times when they are subject to call. 

(4)  AREA OF CALCULATION:  A person who employs eight or more persons is an “employer” under WLAD; even if less than eight of the employees work in Washington. 

(5) MULTIPLE PLACES OF EMPLOYMENT. A legal entity that employs eight or more persons is an “employer” under WLAD; even if some of the employed work in different locations or lines within the business. 

(6) CONNECTED CORPORATIONS. “Corporations and other artificial persons that are in common ownership or are in a parent-subsidiary relationship will be treated as separate employers unless the entities are managed in common in the area of employment policy and personnel management. In determining whether there is management in common we will consider whether the same individual or individuals do the managing, whether employees are transferred from one entity to another, whether hiring is done centrally for all corporations, and similar evidence of common or separate management.” 

(7) PERSONS ON LAYOFF. Not counted. 

(8) PERSONS ON LEAVE. Counted; but persons that are on unpaid leave are not counted. 

(9) EMPLOYEE OR INDEPENDENT CONTRACTOR. Not counted. 

(10) PAY. “Anyone who is paid for work and who otherwise meets the standards in this section will be counted. This includes paid interns and work study program participants. Pay includes compensation for work by the hour, by commission, by piecework, or by any other measure. For the treatment of unpaid persons, see subsection (11) of this section.” 

(11) UNPAID PERSONS. “An unpaid person will be counted if he or she is generally treated in the manner that employers treat employees. That is, if management selects the person (particularly if selected in competition with other persons), assigns work hours, disciplines the unpaid person like an employee, or provides employment benefits such as industrial insurance, then the person will be counted as an employee. The typical volunteer firefighter would be counted. A person who comes into the food bank when he or she pleases, is put to work if there is anything to do, who leaves when he or she pleases, who has no expectation of paid employment, and who receives no employment benefits, would not be counted.” 

(12) FAMILY MEMBERS. Not counted if the person is employed by his/her parents, spouse, or child; but other family members are counted. 

(13) DOMESTIC HELP. Not counted if the person is hired by the employer to simply perform domestic services for the employer. 

(14) DIRECTORS OF CORPORATIONS (AND SIMILAR OFFICERS OF OTHER PRIVATE/PUBLIC ARTIFICIAL LEGAL ENTITIES). Not counted if based solely on the fact that they serve in that capacity. 

(15) OFFICERS. Counted as employee if officer of a corporation or officer of other private/public artificial legal entity — unless (a) he/she receives no pay from the corporation or other entity; and (b) he/she does not participate in the management of the corporation or other entity beyond participation in formal meetings of the officers. 

(16) PARTNERS. Not counted as employed by the partnership or by each other. 

(17) MEMBERS OF A PROFESSIONAL SERVICE CORPORATION. Counted as employees of the corporation if they render professional services for it. 

(18) TEMPORARY EMPLOYEE PLACEMENT SERVICES. If a person is placed with an on-site employer by a temporary employee placement service, then that person will be counted as an employee of the temporary placement service; and will also be counted as an employee of the on-site employer if the on-site employer generally treated them in the manner that employers treat employees (see the factors listed in WAC 162-16-230).

See WAC 162-16-220 (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.

–gw

Right to Inspect Personnel Files in WA

by Gregory Williams, Esq. | Under Washington Labor Regulations, does an employee have a right to inspect their personnel file? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Chapter 49.12.240 RCW is the relevant law, and it provides as follows:

Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).

RCW 49.12.240 (emphasis added). 

Thus, it appears that employees working in Washington State have a right to inspect their personnel file at least once a year upon proper request.

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

Behind Closed Doors: WA ESD Appeals & WLAD

by Gregory Williams, Esq. | Occasionally, one of my employment discrimination clients (I only represent employees) will vigorously attempt to convince me that they received favorable findings against their employer during their unemployment benefits appeal conducted through the Washington State Office of Administrative Hearings; and that the findings will help them win their subsequent discrimination lawsuit under the Washington Law Against Discrimination (WLAD).  Unfortunately, I usually have bad news for those clients.

The issue is whether findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing may be admitted in a separate employment discrimination lawsuit outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

The Washington State Employment Security Department (ESD) was created in 1939.  Its mission is to “partner to connect employers and job seekers – supporting transitions to new jobs and empowering careers.” If an individual applies for unemployment benefits through the ESD and is denied; then the individual can request an appeal.  In that case, the ESD will forward the appeal to the Washington State Office of Administrative Hearings (OAH) which is not part of the ESD.  The OAH will then assign an administrative law judge to hear the case.

The state laws relating to the ESD are contained in Title 50 RCW; and the relevant law states as follows:

Any finding, determination, conclusion, declaration, or final order made by the commissioner, or his or her representative or delegate, or by an appeal tribunal, administrative law judge, reviewing officer, or other agent of the department for the purposes of Title 50 RCW, shall not be conclusive, nor binding, nor admissible as evidence in any separate action outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts or was reviewed pursuant to RCW 50.32.120.

RCW 50.32.097 (emphasis added).

Thus, I believe that findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing are generally not admissible in a subsequent employment discrimination lawsuit outside the scope of Title 50 RCW between the employee and the employee’s present or prior employer.

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

Section 1981

by Gregory Williams, Esq. | What is Section 1981 – Equal rights under the law? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Section 1981 prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes ‘to make and enforce.’” See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). The relevant law is entitled “Equal rights under the law” and it states as follows:

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

(b) “MAKE AND ENFORCE CONTRACTS” DEFINED
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) PROTECTION AGAINST IMPAIRMENT
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

Discriminatory intent is required to support a claim under Section 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).

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

Disparate Treatment Via Hostile Work Environment

by Gregory Williams, Esq. | Under the Washington State direct evidence approach, may an employee-plaintiff build a prima facie case of disparate treatment based on a hostile work environment? 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 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.

Disparate Treatment

Disparate treatment is a form of employment discrimination, and it occurs when an employer treats some people less favorably than others based on protected class. Accordingly, to establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status. Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)). A plaintiff may establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination. Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

Direct Evidence Test

The plaintiff can establish a prima facie case under the direct evidence test by offering direct evidence of the following:

1. The defendant employer acted with a discriminatory motive; and
2. The discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (hyperlink added).

Significant/Substantial Factor

The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive–the 1st element–was a significant or substantial factor in the subject employment decision. Obviously, employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.

However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay. Id. at 748 (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). And a demotion or adverse transfer, or a hostile work environment, may amount to an adverse employment action. Id. at 746 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).

Conclusion

An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.   

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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

Ambiguous Contracts in WA State: Summary Judgment

by Gregory Williams, Esq. | How do Washington state courts view ambiguous contracts at summary judgment? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Summary judgment is not appropriate on an ambiguous contract. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore not subject to summary judgment)(quotation marks and internal citations omitted). Whether a written contract is ambiguous or not is a question of law for the courts. Dice v. City of Montesano, 131 Wn.App, 675, 128 P.3d 1253 (Div. 2 2006), rev. denied, 158 Wn.2d 1017, 149 P.3d 377 (2006).

Contract provisions can be ambiguous if two reasonable meanings can be attributed to the contract or if a material contract term is uncertain or capable of being understood as having more than one meaning. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (holding the term “incident” as it appeared in the release of liability was ambiguous and therefore the release was not subject to summary judgment)(quotation marks and internal citations omitted).

In Marshall v. Thurston County, id., Marshall filed a claim for damages in 2001 against Thurston County based on flooding to his property, and Marshall eventually signed a release agreement with the County that exculpated the County from liability related to the 2001 claim, as well as further claims arising from the “incident.” However, in 2009 Marshall brought a new lawsuit for damages against the County as a result of additional flooding occurring after the release was signed.  The County asserted that Marshall’s 2009 claim was barred by the previously executed release of liability, but the court found that the dispute turned on the meaning of the word “incident.” The court then reasoned that the 2001 claim suggested two reasonable interpretations of “incident” and held that the release was ambiguous; “therefore summary judgment was not appropriate based on the meaning of the release.” Id.

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

Washington Priority of Action Rule: Same Relief

by Gregory Williams, Esq. | Under the Washington Priority of Action Rule, how do Washington state courts determine if the relief is the same? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

The Washington Priority of Action Rule will only apply if the two relevant cases involve identical (1) subject matter, (2) parties, and (3) relief.  Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990).  These factors must be established before the Washington Priority of Action Rule should be applied.  Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). The identity of the above elements must be such that a decision in one tribunal would bar proceedings in the other because of res judicata.  State ex rel. Evergreen Freedom Foundation v. Washington Educ. Ass’n, 111 Wn.App. 586, 607, 49 P.3d 894 (Div. 2 2002).  If the Rule applies, the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved.  Am. Mobile Home, 115 Wn.2d at 316-17.

Generally, the Washington Supreme Court has established the following factors to determine if the relief is the same for purposes of the Washington Priority of Action Rule: (1) whether the form of relief available to each tribunal is the same (FORM OF RELIEF); and (2) whether the first tribunal can resort to another to equalize any disparity in the amount of relief available between the first and second lawsuits (EQUALIZE DISPARITY)?  See, State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn. App. 586, 607, 49 P.3d 894 (2002) (holding that remedy was the same in both suits because the type of relief available to both courts was the same and because the administrative agency could otherwise seek relief in superior court in the first case to equalize any disparity in the amount of relief available in the administrative tribunal).

In Evergreen Freedom Found., plaintiff attempted to amend its citizens lawsuit in superior court by adding claims that were contemporaneously being pursued by an administrative agency with statutory authority to preempt plaintiffs’ lawsuit; plaintiff sought, inter alia, the same form of remedy (i.e., a fine) as the administrative agency based on exactly the same RCW statute.  The court ruled that the relief was the same in both actions and upheld the trial court’s application of the priority of action rule, because the relief in both cases was a monetary fine pursuant to RCW 42.17.395(4), and because any disparity in the amount of relief available could be eliminated if the administrative tribunal ushered the claim to superior court; the court then analyzed res judicata and concluded jurisdiction in the second court was improper under Washington Priority of Action Rule.  State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn. App. 586, 49 P.3d 894 (2002).

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.

–gw

WLAD: Perceived Protected Classes

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), may an employee claim to be within a protected class based upon both the employer‘s perception and associated treatment – even when the employee is not actually within the protected class? Here’s my point of view (NOTE:  please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

The right to be free from discrimination because of membership in a protected class is recognized as and declared to be a civil right in the State of Washington. See RCW 49.60.030(1). This right includes, but is not be limited to the right to obtain and hold employment without discrimination. RCW 49.60.030(1)(a).  Protected classes include 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 perceived 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.

WASHINGTON ADMINISTRATIVE CODE

The issue is whether perceived membership in one or more of the above protected classes can form the basis for discrimination claim under the WLAD? In Washington, a court must give great weight to a statute’s interpretation by the agency which is charged with its administration, absent a compelling indication that such interpretation conflicts with the legislative intent.   See Marquis v. City of Spokane, 130 Wn.2d 97, 111, 922 P.2d 43, (Wash. 1996) (citing Washington Water Power Co. v. Washington State Human Rights Comm’n, 91 Wash.2d 62, 68-69, 586 P.2d 1149 (1978)).  The Washington State Human Rights Commission (WSHRC) is a state agency that is charged with the administration of the Washington Law Against Discrimination. And according to the WSHRC, “Protected Class” means as follows:

[T]he persons who are members of (or who are treated as members of) one of the groups against whom discrimination is declared to be an unfair practice by the law against discrimination. Protected classes include persons between the ages of forty and seventy, persons of any race, creed, color, national origin, sex, or marital status, and persons who are handicapped.

WAC 162-04-010 (emphasis added).

CONCLUSION

Thus, one may argue that if an employer discriminates against an employee based on the employer’s perception that the employee is within a protected class, then that employee may base an associated WLAD claim against the employer upon that perceived protected class; but not all perceived protected classes fall under the amibt of WLAD (e.g., perceived sexual orientation) -- I will address this issue in another article.

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

Constructive Discharge Test

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, a constructive discharge (quitting your job) can equate to an actual discharge in support of a claim of unlawful employment discrimination. Take our Constructive Discharge test:

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

Protected Classes

by Gregory Williams, Esq. | View our video to learn about protected classes under the Washington Law Against Discrimination:

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

Reasonable Accommodations Test

by Gregory Williams, Esq. | Failure to provide reasonable accommodations is a form of unlawful employment discrimination in Washington. Take our reasonable accommodations test:

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

Hostile Work Environment Test

by Gregory Williams, Esq. | Hostile work environment is a form of unlawful employment discrimination in Washington; it is also known as harassment. Take our Hostile Work Environment test:

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

Disparate Treatment Test (Adverse Action)

by Gregory Williams, Esq. | Disparate treatment based on adverse action is a form of unlawful employment discrimination in Washington. Take our disparate treatment test:

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

WLAD: Definition of Employee

by Gregory Williams, Esq. | What is the definition of “employee” under the Washington Law Against Discrimination (WLAD)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

Chapter 49.60.040(10) RCW is the relevant law, and it defines the term “employee” in the negative as follows:

(10) “EMPLOYEE” does not include any individual employed by his or her parents, spouse, or child, or in the domestic service of any person.

RCW 49.60.040(10) (emphasis added). 

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

6 Reasons Employment Discrimination Lawsuits Fail

by Gregory Williams, Esq. | The following is a list of six typical reasons that employment discrimination claims fail in Washington based upon my experience practicing employment discrimination law in Washington State. The list is not exclusive, not scientifically prioritized, and is general in nature; I have drawn from both Washington State and Federal law. This article is solely offered as my point of view (NOTE:  please read our DISCLAIMER before proceeding).

And now, the countdown…

#6 -- THE DISCRIMINATING MANAGER HIRED YOU

The “Same-Actor-Inference” is a potential employer defense to a claim of employment discrimination. It’s applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. However, there is a bright note; in Washington, the Supreme Court has declined to adopt the Same-Actor-Inference with respect to unlawful retaliation claims.

#5 -- YOU WERE NOT PERFORMING SATISFACTORILY

Under the Washington Law Against Discrimination, disparate treatment discrimination is intentional discrimination, and it’s the most easily understood type discrimination. A substantial number of disparate treatment discrimination cases are based upon wrongful termination.  Under this basis, a common method to prove discrimination is for the plaintiff to show that he/she is a member of a protected class, had satisfactory job performance, was discharged from employment, and was replaced by someone outside the protected class. However, oftentimes plaintiffs in employment discrimination lawsuits are not performing satisfactorily at the time of termination, and, thus, their disparate treatment claims may fail.

There is good news; disparate treatment discrimination based on wrongful termination is only one of a variety of potential theories of discrimination that might be claimed depending on the facts of each case. In addition, there are several approaches to making a case, and I have only addressed one based upon what is commonly known as the McDonnell-Douglas Formulation. Consult with an attorney to learn more (see #1 below).

#4 -- IMPROPERLY BASED DISCRIMINATION

Under Washington Law Against Discrimination, language and/or conduct at work may be considered unlawful only when it’s because of a protected class.  Protected classes include race or color; national origin; creed; sex or pregnancy; sexual orientation or gender identity; veteran or military status; presence of any sensory, mental, or physical actual disability or perceived disability; use of a service animal; HIV or hepatitis C; marital status; and age.

The problem generally occurs when an employee complains of discrimination to their employer but fails to indicate that the discrimination occurred on account of their protected class. This may destroy a hostile work environment claim which requires, inter alia, that the harassing language or conduct occur because of the plaintiff’s protected class.

#3 -- YOU CAN’T HOLD THE EMPLOYER RESPONSIBLE

To hold an employer responsible for hostile work environment discrimination under Washington Law Against Discrimination, an employee must, inter alia, impute conduct to the employer. Where an owner, manager, partner, or corporate officer personally participates in the discriminatory conduct, employer liability is imputed automatically. However, if the harassment is by a supervisor, co-workers or others, then the employer is liable only if it authorized, knew or should have known of the harassment and failed to take reasonably prompt and adequate corrective action.

The lesson here is that reporting discrimination to the employer immediately after it occurs sets the foundation for employer liability; but remember #4 above — a properly drafted discrimination complaint should indicate, among other things, that the discrimination occurred on account of the employee’s protected class.

#2 -- YOU NEVER COMPLAINED

In number #4 above, the discrimination complaint was not properly drafted. However, under this category, the complaint was never filed.

A common claim associated with employment discrimination is unlawful retaliation. One way to form this claim is through a burden shifting framework which initially requires the plaintiff-employee to establish a prima facie case. A plaintiff-employee may typically establish a prima facie case of unlawful retaliation by producing evidence of (1) a protected activity by the employee, (2) an adverse action by the employer, and (3) the employer’s knowledge of the protected activity.  The third element further requires the plaintiff-employee to show that the protected activity was a substantial factor for the adverse employer action.

One common type of protected activity that creates a partial basis for an unlawful retaliation claim is opposing practices forbidden by the Washington Law Against Discrimination. However, if an employee experiencing discrimination never complains to the employer, then the employee may not have effectively opposed discrimination under these circumstances (the employer may also claim that it lacks knowledge of the employee’s protected activity); and the claim of unlawful retaliation may fail.

#1 -- YOU DIDN’T CONSULT WITH AN ATTORNEY ASAP

Timelines are critical in employment discrimination cases. An employee should consider consulting with an attorney at the first instance of discriminatory language or conduct at work; and develop a proper plan of action to guard against future discrimination.

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