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Thursday, January 18, 2018

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.

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