Significant Differences Between Title VII & WLAD Backpay Provisions

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Under Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination (WLAD), are there significant differences between their respective backpay provisions? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE DAMAGES PROVISIONS

The relevant damages provision of Title VII states as follows:

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(2) Exclusions from compensatory damages

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5(g)]

42 U.S.C. § 1981a(b)(2) (hyperlink added). And the relevant damages provision of WLAD states as follows:

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(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964....

RCW 49.60.030(2) (emphasis added) (hyperlinks added). Title VII and WLAD differ significantly in terms of plain language, operative-term usage, and scope.

DIFFERENCE IN PLAIN LANGUAGE

The plain language of Title VII and WLAD show that each law treats backpay differently than the other. The court in Martini v. The Boeing Company explained the difference, as follows:

The remedies section of Washington's law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington's law against discrimination provides for a general award of "actual" (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.

Martini v. The Boeing Company, 137 Wn.2d 357, 374-75 (Wash. 1999). Accordingly, WLAD provides a much broader mandate for an award of backpay than Title VII. Both laws can be further distinguished based on their operative terms.

DIFFERENCE IN OPERATIVE-TERM USAGE

Title VII and WLAD each use different operative terms in relation to an award of backpay for breaches of their respective provisions. The court in Martini also addressed this issue, as follows:

The use of the word "may" in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute. 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court "may" order affirmative action which "may" include reinstatement with or without back pay). In contrast, Washington's law against discrimination is more categorical, mandating that a victim of a violation of the statute "shall have a civil action ... to recover the actual damages." RCW 49.60.030(2) (emphasis added).

Martini, 137 Wn.2d at 375 (hyperlinks added). Thus, "[t]he legislative command to award damages is ... stronger in Washington's statute than in title VII." Id.

DIFFERENCE IN SCOPE

Lastly, the scope of WLAD is broader than Title VII based on both covered protected classes and the mandated policy for interpreting their respective provisions. Particularly, unlike WLAD, Title VII neither covers discrimination based on marital status, age, or disability; nor contains a direction for liberal interpretation. Id., 137 Wn.2d at 372-73.

CONCLUSION & IMPLICATIONS

Title VII and WLAD have significantly different remedies provisions -- especially in relation to backpay. 

Under Title VII, backpay is treated as an equitable remedy, whereas under WLAD it is treated as actual or compensatory damages. Ultimately, "[t]he legislative command to award damages is ... stronger in Washington's statute ...." Id., 137 Wn.2d at 375. Arguably, the differences in available relief might produce an effective argument against an assertion of the Priority of Action Rule.

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.

–gw