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Thursday, January 18, 2018

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).


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.


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.


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.


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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