WLAD: Perceived Protected Classes

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 Washington State. 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. It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

WASHINGTON 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 and hyperlinks 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 ambit of WLAD (e.g., perceived sexual orientation).

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