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Tuesday, January 23, 2018

Title VII Definition of Commerce

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

DEFINITION OF COMMERCE

The relevant law is found under 42 U.S.C. § 2000e, and it defines the term “commerce” as follows:
...
(g) The term “commerce” means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
...
42 U.S.C. § 2000e (emphasis and hyperlinks added).


LEARN MORE

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

Saturday, January 20, 2018

Tortious Interference With Business Relations & At-Will Employees

by Gregory Williams, Esq. | Under Washington State law, may an at-will employee base a claim of tortious interference with business relations on the employee's termination of employment? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding). 

THE ELEMENTS

The elements of the tort of interference with business relations are as follows:
1. The existence of a valid contractual relationship or business expectancy;
2. Knowledge of the relationship or expectancy on the part of the interferor;
3. Intentional interference inducing or causing a breach or termination of the relationship or expectancy; and
4. Resultant damage to the party whose relationship or expectancy has been disrupted.
Scymanski v. Dufault, 80 Wn.2d 77, 82, 491 P.2d 1050 (Wash. 1971) (internal citations omitted).

THE AT-WILL EMPLOYEE

However, "generally, at-will employees do not have a business expectancy in continued employment." Woody v. Stapp, 146 Wn.App. 16, 24, 189 P.3d 807 (Wash.App. Div. 3 2008) (referencing Raymond v. Pac. Chem., 98 Wash.App. 739, 747, 992 P.2d 517 (1999) (at-will employment clearly limited an employee's expectation of job security), rev'd on other grounds, Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001)) (emphasis added) (hyperlink added to original).

CONCLUSION

At-will employees pursuing a claim of tortious interference with business relations, based on the employee's termination of employment, will likely be unable to establish the first element -- the existence of a valid contractual relationship or business expectancy; and, consequently, such a claim will likely fail.


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.

The U.S. Anti-Injunction Act

by Gregory Williams, Esq. | What is the U.S. Anti-Injunction ActHere’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE U.S. ANTI-INJUNCTION ACT

Pursuant to the Anti-Injunction Act, 28 U.S.C. 2283, a court of the United States may not grant an injunction to stay proceedings in a State court except (1) as expressly authorized by Act of Congress, (2) where necessary in aid of its jurisdiction, or (3) to protect or effectuate its judgments. Atlantic CoastLine Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 282-83, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).

“Courts must construe the exceptions to the Anti-Injunction Act narrowly and resolve doubts in favor of letting the state action proceed.” Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997) (hyperlink added to original). “Rooted firmly in constitutional principles, the Act is designed to prevent friction between federal and state courts by barring federal intervention in all but the narrowest of circumstances.” Sandpiper Village Condominium Ass’n., Inc. v. Louisiana-Pacific Corp., 428 F.3d 831, 842 (9th Cir. 2005) (hyperlink added to original).

1.  “EXPRESS AUTHORIZATION” EXCEPTION

Under the first exception of the Anti-Injunction Act (Express Authorization), a court of the United States may grant an injunction to stay proceedings in a State court when expressly authorized by Act of Congress.

For example, the Supreme Court has held that the statute governing removal procedures, 28 U.S.C. §1446, provides “express authorization” to enjoin State proceedings in removed cases. Quackenbush, 121 F.3d at 1378 (internal citations omitted).  The relevant portion of 28 U.S.C. §1446 follows:
A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action
Id. (emphasis added).

2.  “IN AID OF JURISDICTION” EXCEPTION

Under the 2nd exception of the Anti-Injunction Act (In Aid Of Jurisdiction), “parallel in personam actions in state court seriously impede a federal court’s ability to adjudicate a case only where the state court proceeding threatens to render the exercise of the federal court’s jurisdiction nugatory.”  Bennet v. Medtronic, 285 F.3d 801, 806 (9th Cir. 2002) (quoting Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202 (7th Cir. 1996) (internal quotation marks omitted). "Thus, there are only very limited circumstances where such a threat exists in personam cases." Id. (internal citations omitted). In reality, the threat created by a concurrent State court action is most severe when federal jurisdiction is dependent upon a res. Id. "For that reason, the most prominent ‘in aid of jurisdiction’ exception is for in rem actions." Id.

Thus, the court in Sandpiper found that the general rule remains as follows:
[W]here a suit is strictly in personam there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined, because the subsequent action neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with the law.
Sandpiper Village Condominium Ass’n, 428 F.3d at 844 (Holding that the US District Court did not meet “in aid of jurisdiction exception” and ruled that it violated Anti-Injunction Act when it attempted to enjoin a Minnesota state court from entering judgment) (alteration to original) (internal citations omitted).

3.  “RELITIGATION” EXCEPTION

Under the 3rd exception of the Anti-Injunction Act (Relitigation), a federal court is permitted to prevent State court litigation of an issue that was previously presented to and decided by a federal courtG.C. & K.B. Inv., Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003) (citing Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988)). The Relitigation Exception enables federal courts to protect the res judicata effect of their judgments.  Sandpiper Village Condominium Ass’n., Inc., 428 F.3d 831 at 847 (internal quotation marks omitted).

A FINAL THOUGHT

The U.S. Anti-Injunction Act can be a handy litigation tool in an employment-discrimination-attorney's arsenal. In practice, I've had the opportunity to use the Act (i.e., Express Authorization Exception) to defeat defendant-employers' motions for removal.


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.

Interpreting Releases In Washington State

by Gregory Williams, Esq. | Under Washington State contract law, how are “releases” interpreted? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

A RELEASE IS A CONTRACT

In Washington State, the term "release" has been defined as a contract in which one party agrees to abandon or relinquish a claim or cause of action against another. Boyce v. West, 71 Wn.App. 657, 862 P.2d 59 (Div. 3 1993) (emphasis added). Washington courts apply basic principles of contract law to releases. Saben v. Skagit County, 136 Wn.App. 869, 152 P.3d 1034 (Div. 1 2006). Moreover, Washington courts follow the objective manifestation theory of contracts, looking for the parties’ intent as objectively manifested rather than their unexpressed subjective intent. See Renfro v. Kaur, 156 Wn.App. 655, 662, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010) (internal citations and quotation marks omitted).

THE CONTEXT RULE

The context rule is used for interpretation. Western Washington Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wn.App. 488, 495-96, 7 P.3d 861 (Div. 2 2000), rev. denied, 143 Wn.2d 1003, 21 P.3d 292 (Wash. 2001) (internal citations and quotation marks omitted). Thus, Washington courts determine intent not only from the actual language of the release, but also from viewing the release as a whole, the subject matter and objective of the release, all the circumstances surrounding the making of the release, the subsequent acts and conduct of the parties to the release, and the reasonableness of the respective interpretation advocated by the parties. See id. at 495 (internal citations and quotation marks omitted).

EXTRINSIC EVIDENCE

Extrinsic evidence may be used to determine the meaning of specific words used. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (internal citations and quotation marks omitted). However, standard dictionary definitions of words are generally accepted as the ordinary and common meaning.  Allstate Ins. Co. v. Neel, 25 Wn.App. 722, 725, 612 P.2d 6 (Div. 1 1980) (court utilized Merriam-Webster Dictionary to define “own” and determined that parents’ auto policy did not cover child).

It is important to note that extrinsic evidence may not be used (1) to establish a party’s unilateral or subjective intent as to the meaning of a contract word or term; (2) to show an intention independent of the instrument, or (3) to vary, contradict, or modify the written word.  Renfro v. Kaur, 156 Wn.App. at 661 (internal citations and quotation marks 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.

Friday, January 19, 2018

WLAD: Definition of Person

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “person” ? 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 statussexual orientation (including gender identity); race; color; creed; national 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.

DEFINITION OF PERSON

Chapter 49.60.040(19) RCW is the relevant law, and it defines the term “person” as follows:

(19) “PERSON” includes 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; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

RCW 49.60.040(19) (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.

Washington Contract Law and Sham Consideration

by Gregory Williams, Esq. | Under Washington contract law, may consideration to establish an enforceable contract be based upon an agreement to do that which one is already obliged to do? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW OF CONSIDERATION

Generally, the issue of whether a contract is supported by consideration is a question of law.  Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 840 P.2d 851 (1992). And every contract must be supported by a consideration to be enforceable. Huberdeau v. Desmarais, 79 Wn.2d 432, 439-40, 486 P.2d 1074 (1971) (internal citations and quotation marks omitted).  Consideration may consist of an act, a forbearance, the creation, modification or destruction of a legal relationship, or a return promise given in exchange. Id. at 439 (internal citations and quotation marks omitted). Overall, there is consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do. Browning v. Johnson, 70 Wn.2d 145, 149, 422 P.2d 314 (1967) (internal quotation marks and citations omitted).

PREEXISTING OBLIGATIONS

However, an agreement to do that which one is already obliged to do does not constitute consideration to support a contract.  Boardman v. Dorsett, 38 Wn.App. 338, 341, 685 P.2d 615 (Div. 3 1984) (internal citations and quotation marks omitted). In addition, a gratuitous promise, even if reduced to a writing, remains unenforceable. Huberdeau, 79 Wn.2d 432. According to the Restatement of Contracts, the surrender of an invalid claim by one who has neither an honest nor a reasonable belief in the validity of the claim will not constitute considerationId. at 439 (internal citations omitted). Importantly, the policy behind the requirement that an enforceable contract be supported by consideration has its roots in the common-law idea that one ought not be held to his gratuitous promises.  Id. at 440 (internal citations and quotation marks omitted).

EXAMPLE:  HUBERDEAU v. DESMARAIS

For example, in Huberdeau v. Desmarais; Huberdeau, a real estate seller, contracted for the sale of his land to Desmarais, a farmer. After the parties executed a contract for sale, the farmer was spontaneously granted by the U.S. Department of Agriculture a personal Hop Growing License–not attached to the land–authorizing the farmer to grow and sell a certain amount of hops. Subsequently, the seller required the then financially distressed farmer to sign a writing in which the farmer agreed that the Hop Growing License (an unalienable personal right) would be considered part of the land and the new writing would be part of their previous real estate contract in the event of breach by the farmer. The Supreme Court held that the seller gave and the farmer received no new, different or additional consideration in support of the new writing, that the promise to transfer the Hop Growing License was gratuitous and unsupported by consideration, and that therefore the promise was unenforceable. Id., 79 Wn.2d 432.


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.

Effective Date For Constructive Discharge: WA State

by Gregory Williams, Esq. | Under Washington law, when does a constructive discharge become effective? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

CONSTRUCTIVE DISCHARGE (OBJECTIVE STANDARD)

To establish constructive discharge, an employee must show that an employer engaged in a deliberate act, or a pattern of conduct, that made working conditions so intolerable that a reasonable person would have felt compelled to resign.  Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485 (Div. 2 2013) (citing Sneed v. Barna, 80 Wn.App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wn.2d 1023, 919 P.2d 600 (1996)) (quotation marks omitted).

This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant.  Id. (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wn.App. 542, 551, 85 P.3d 959 (2004)) (quotation marks omitted).

EFFECTIVE DATE

A constructive discharge becomes effective on either the date the employee gives notice to the employer or the last day of actual employment.  Id. at 486-87 (referencing Douchette v. Bethel Sch. Dist. No. 403, 58 Wn.App. 824, 795 P.2d 162 (1990), aff’d, 117 Wn.2d 805, 816 n. 9, 818 P.2d 1362 (1991)) (quotation marks omitted) (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.

Ninth Circuit: Section 1981 Claims & The Corporate Plaintiff

by Gregory Williams, Esq. | Under §1981, may corporations raise race discrimination claims in the Ninth Circuit? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DOMINO'S PIZZA, INC. v. MCDONALD

The U.S. Supreme Court addressed the issue presented in Domino’s Pizza, Inc. v. McDonald when it ruled as follows:

Since [the single-shareholder corporation] settled its claims and is not involved in this case, we have no occasion to determine whether, as a corporation, it could have brought suit under §1981. We note, however, that the Courts of Appeals to have considered the issue have concluded that corporations may raise § 1981 claims.

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, n. 1, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (referencing, e.g., Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 706 (C.A.2 1982)) (emphasis added).

In various statutory contexts, several circuits have concluded that corporations have standing to assert race discrimination claims. See, e.g., Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004) (Section 1981 claim); Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 882 (8th Cir. 2003) (Fair Housing Act claims); Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1072 (10th Cir. 2002) (Sections 1981 and 1982 claims); Gersman v. Group Health Ass’n, 931 F.2d 1565, 1568, 289 U.S. App. D.C. 332 (D.C. Cir. 1991) (Section 1981 claim), vacated on other grounds, 502 U.S. 1068, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992); Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 591 (7th Cir. 1989) (Section 1983 claim), abrogated on other grounds, Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 706 (2d Cir. 1982) (Title VI claim); Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 13-14 (1st Cir. 1979) (Section 1981 claim).

THE NINTH CIRCUIT

Particularly, the Ninth Circuit has found, “When a corporation has acquired a racial identity, either as a matter of law or by imputation, then it can be the direct target of discrimination and has standing to pursue a claim under § 1981.”  Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir. 2004) (emphasis added) (hyperlinks added to original).

THE PLAIN LANGUAGE OF THE STATUTE

Further, it appears that the plain language of the statute may allow a corporation to have standing. The relevant statute 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 (emphasis added). Note that the statute uses the term "person," not "corporation," and it is undefined.

Federal courts have found that the plain language of a statute may allow a corporation to have standing when not specifically included by definition. For example, the court in Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth. found that although Title VI does not specifically define the term “person,” the Dictionary Act does: “In determining the meaning of any Act of Congress, unless the context indicates otherwise,” the word person” include[s] corporations.” Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., 745 F.3d 703, n. 4 (4th Cir. 2014) (citing 1 U.S.C. § 1). Moreover, § 2000d prohibits a “person” from being discriminated against “on the ground of race, color, or national origin, “not” on the ground of his or her race, color, or national origin.” Id. (see Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 705 (2d Cir. 1982) (observing the same) (emphasis added); see also Mohamad v. Palestinian Auth., 132 S.Ct. 1702, 1707-08, 182 L.Ed.2d 720 (2012) (observing that Congress often uses the word “individual” to mean something different from its use of the word “person” )).

CONCLUSION

Thus, it seems that in the Ninth Circuit, corporations may raise race discrimination claims under §1981 when the corporation has acquired a racial identity.

LEARN MORE

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

Thursday, January 18, 2018

WLAD: Discrimination & The Contingency Adjustment

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

THE LODESTAR FORMULA

WLAD entitles prevailing plaintiffs to reasonable attorneys’ fees typically calculated using a lodestar formula; to calculate a lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. And occasionally a risk multiplier will be warranted, because the lodestar figure does not adequately account for the high risk nature of a case. Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 544, 151 P.3d 976, (Wash. 2007) (quotation marks omitted).

THE CONTINGENCY ADJUSTMENT (MULTIPLIER)

Accordingly, after the lodestar amount is calculated the court may consider adjusting the award to reflect additional factors; this is also known as a “contingency adjustment.” Id. at 541. The contingency adjustment is based on the notion that attorneys generally will not take high risk contingency cases, for which they risk no recovery at all for their services, unless they can receive a premium for taking that risk. Id. In addition, the WLAD places a premium on encouraging private enforcement, and the possibility of a multiplier works to encourage civil rights attorneys to accept difficult cases. Id. at 542 (internal citation omitted); RCW 49.60.020.

Adjustments to the lodestar are considered under two broad categories: (1) the contingent nature of success, and (2) the quality of work performed. Id. (quotation marks omitted). In adjusting the lodestar to account for the risk factor, the trial court must assess the likelihood of success at the outset of the litigation. Id. at 541 (internal citations and quotation marks omitted). This is necessarily an imprecise calculation and must largely be a matter of the trial court’s discretion. Id.  


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.

WLAD: Discrimination & Attorneys' Fees

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), do courts allow prevailing plaintiffs attorneys' fees to be paid by the defendant-employer? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

WLAD places a premium on encouraging private enforcement, and it entitles prevailing plaintiffs to "reasonable attorneys' fees." RCW 49.60.030(2). These fees are typically calculated using a lodestar formula.

THE LODESTAR FORMULA

To calculate a lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007) (citing Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)) (internal quotation marks omitted). The hours reasonably expended must be spent on claims having a "common core of facts and related legal theories." Id. (internal citations and quotation marks omitted). The court should discount hours spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time. Id. (internal citations and quotation marks omitted).

In order to reverse an attorney fee award, an appellate court must find the trial court manifestly abused its discretion. Id. (internal citations and quotation marks omitted). That is, the trial court must have exercised its discretion on untenable grounds or for untenable reasons. Id. (internal citations and quotation marks omitted).

THE CONTINGENCY ADJUSTMENT

After the lodestar amount is calculated, the court may consider adjusting the award to reflect additional factors; this is also know as a "contingency adjustment"; however, I will address this in a separate 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.

WLAD: Definition of Marital Status

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

WASHINGTON LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital statussexual orientation (including gender identity); race; color; creed; national 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.

DEFINITION OF MARITAL STATUS

Chapter 49.60.040(17) RCW is the relevant law, and it defines the term “Marital Status” as follows:

(17) “MARITAL STATUS” means the legal status of being married, single, separated, divorced, or widowed.

RCW 49.60.040(17) (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.

WLAD: Imputing Harassment to Employers

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 fourth element -- that the harassment can be imputed to the employer? 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 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 the fourth (4th) element: that harassment can be imputed to the employer.

HARASSMENT IMPUTED TO THE EMPLOYER

The fourth element was addressed in Glasgow v. Georgia-Pacific Corp. as follows:
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff's supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. This my be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of ... harassment [based on a protected class] at the work place as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonable calculated to end the harassment. . . . 
[A]n employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being . . . harassed [based on a protected class].
Id. at 407-08 (emphasis added) (alteration in original).


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.

WLAD: Harassment & Terms and Conditions of Employment

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 third element -- that the harassment affected the terms and conditions of employment or membership? 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 the third (3rd) element: that it affected the terms and conditions of employment.

TERMS & CONDITIONS OF EMPLOYMENT

To establish the third element, the employee must prove that the wrongful conduct affected his or her terms or conditions of employment.  Conduct affects the terms or conditions of employment if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Id. "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted). Whether conduct meets these requirements depends on the totality of the circumstancesGlasgow v. Georgia-Pacific Corp., 103 Wn.2d at 406-07.

The totality-of-the-circumstances test includes consideration of the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance. MacDonald v. Korum Ford, 80 Wn.App. 877, 885, 912 P.2d 1052 (1996) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 371, 126 L. Ed. 295 (1993)). 


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.

WLAD: Harassment & Protected Classes

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 second element -- that the harassment occurred because of the plaintiff's membership in a protected class? 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 the second (2nd) element: that the harassment occurred because of the employee’s membership in a protected class.

MEMBERSHIP IN A PROTECTED CLASS

WLAD, RCW Chapter 49.60, provides specific protections for employees against a hostile work environment.  Specifically, it is unlawful for an employer to discriminate against any person in compensation or in other terms or conditions of employment because of a protected class. Protected classes relating to employment discrimination 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 trained dog guide or service animal; HIV or hepatitis C; marital status; and age.  

The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had not been in a protected class? Id. This statutory criterion requires that the employee’s protected class be the motivating factor for the unlawful discrimination. Id.


LEARN MORE

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