WLAD: Changes In Work Schedule & Unlawful Retaliation

Under Washington Law Against Discrimination (WLAD), may changes in an employee’s work schedule be considered an adverse employment action for purposes of an unlawful retaliation claim? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

FEDERAL COURTS: 9TH CIRCUIT

The Washington State Supreme Court, in majority, has not clearly defined the term “adverse employment action.” However, Federal law and the United States Supreme Court offer some useful guidance on the issue of whether changes to an employee’s work schedule constitute an adverse employment action under WLAD.

The term “adverse employment action” is not defined in Title VII of the Civil Rights Act of 1964; accordingly, the federal courts have devoted attention to this issue, but they have not reached a consensus.  See Islamic Society of Fire Department Personnel v. City of New York, 205, F.Supp.2d 75, 82 (E.D.N.Y. 2002).  Some courts, such as the Fifth and Eighth Circuits, have held that an “adverse employment action” relates only to “ultimate employment actions,” such as hiring, firing, promotions and demotions. Id. (internal citation and quotation marks omitted). 

However, the Ninth Circuit (which includes Washington state) has adopted the EEOC’s broad definition of an adverse employment action which takes an “expansive view” of what may be considered an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Specifically, the Ninth Circuit has held that changes in work schedules is reasonably likely to deter employees from engaging in protected activity and is thus an adverse employment action. Id. The basis for this holding was validated by U.S. Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405 (2006) (holding that an adverse employment action must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of unlawful conduct by the employer).

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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