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 first element -- that the harassment was offensive and unwelcome? 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 employer. See, e.g., Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985). This article will address solely the first (1st) element — that the harassment was offensive and unwelcome.
OFFENSIVE & UNWELCOME CONDUCT
To establish offensive and unwelcome conduct, the complained of conduct must be unwelcome in the sense that the victim-employee did not solicit or incite it, and in the further sense that he/she regarded the conduct as undesirable or offensive. See id. Typically, an employee's internal complaints about the harassment, based on a protected class, are evidence that the employee subjectively believed he/she was being harassed. Thus, an employee's properly drafted complaints of discrimination to the employer/management can be a powerful step in establishing this element.
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.