Washington State Employees & Employment Discrimination

Under Washington law, may State employees pursue discrimination claims against the State based on violations of the Washington Law Against Discrimination (WLAD)? 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; 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.

WA STATE CONSTITUTION

The answer to the issue presented is more procedural than substantive.  As an initial matter, Article II, section 26, of the Washington State Constitution provides that “The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.” Skokomish Indian Tribe v. France, 269 F.2d 555, 561 (9^th Cir. 1959) (emphasis added); Wash. Const. art. II, § 26. However, when the WLAD was enacted in 1949, it did not specifically waive the State’s sovereign immunity to suit in court.  Blair v. Washington State University, 108 Wn.2d 558, 576, 740 P.2d 1379 (Wash. 1987) (internal citation omitted).

WA STATE CIVIL PROCEDURE (RCW 4.92)

As of the date of this article, the vehicle for State employees to hold Washington State liable for violations of WLAD is found elsewhere (NOTE: State whistleblowers are subject to additional requirements under RCW 42.40 and the Washington State Human Rights Commission; however, this article will not address those requirements). The relevant law is found under Washington State Civil Procedure, Chapter 4.92.090 RCW, and is in part as follows:

(1) The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

Id. (emphasis added). Moreover, the Washington Supreme Court has held that a discrimination action under WLAD is a tort.  Blair v. Washington State University, 108 Wn.2d 558, 576, 740 P.2d 1379 (1987) -- incidentally, a “tort” is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.

Thus, a Washington State employee may hold the State liable for violating the WLAD. However–and this is critical–before an employee can both file suit against the State pursuant to WLAD and attempt to establish liability, the employee must first conform to the stringent presentment and filing prerequisites under RCW 4.92. See, e.g., Blair v. Washington State University, 108 Wn.2d at 576 (There is no indication of legislative intent to exempt discrimination actions from the requirements of RCW 4.92.110). 

Learn More

If you would like to learn more about the Washington Law Against Discrimination, the stringent presentment and filing requirements under RCW 4.92, or whistleblower retaliation, 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