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Tuesday, June 19, 2018

Monell Liability

by Gregory Williams, Esq. | Can a municipality, local government unit, or local government official be subject to liability for violation of civil rights? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

SECTION 1983

To state a claim under 42 U.S.C. § 1983 (§ 1983) –Civil Action For Deprivation of Rights– a plaintiff must not only allege the violation of a right secured by the Constitution and laws of the United States, the plaintiff must also show that the alleged deprivation was committed by a “person” acting under color of state law.  West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40, 56 USLW 4664 (1988) (citation omitted) (quotation marks omitted).  If a defendant’s conduct satisfies the state action requirement of the Fourteenth Amendment, that conduct is also action under color of state law and will support a suit under §1983.  Id. at 49 (quotation marks omitted).

MUNICIPALITIES, LOCAL GOVERNMENT UNITS, 
AND LOCAL GOVERNMENT OFFICIALS

Under § 1983 –which imposes liability upon every person who, acting under color of the law of any state or territory or the District of Columbia, causes a deprivation of federal rights– municipalities, local government units, and local government officials sued in their official capacities are “persons” and can be subject to liability.  14A C.J.S. Municipalities § 433 (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); 42 U.S.C.A. § 1983; 14A C.J.S. Official Capacity Actions, § 445 (2006) (citing Monell, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)).  And a municipal official under a § 1983 action in his or her official capacity is treated as an action against the municipality entity itself.  14A C.J.S. Official Capacity Actions, § 445 (2006) (citations omitted).

MONELL LIABILITY

In order to establish Monell liability against municipalities, local government units, and local government officials sued in their official capacities, a plaintiff must show a constitutional right violation resulting from either (A) an employee acting pursuant to an expressly adopted official policy; (B) an employee acting pursuant to a longstanding practice or custom; or (C) an employee acting as a “final policymaker.”  Delia v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010) (citing Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.2003); see Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir.2002); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992)) (quotation marks omitted).


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

Monday, June 18, 2018

Washington State Employees & Employment Discrimination

by Gregory Williams, Esq. | 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 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.

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 (9th 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 4.92See, 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 Discriminationthe 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.

Friday, June 15, 2018

Significant Differences Between Title VII & WLAD Backpay Provisions

by Gregory Williams, Esq. | 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:
(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:
(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 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 v. The Boeing Company, 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., 137 Wn.2d at 375.


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 interpretationId., 137 Wn.2d at 372-73.


CONCLUSION & IMPLICATIONS

Title VII and WLAD have significantly different remedies provisions -- espectially 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.

Title VII: Religious Exemption & Non-Religious Discrimination

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, are religious organizations exempt from the reach of employment discrimination claims NOT based on religionHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE RELIGIOUS ENTITIES EXEMPTION


The relevant law is contained in 42 U.S.C. §2000e-1(a) as follows:

(a) Inapplicability of subchapter to certain aliens and employees of religious entities. 
This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Id.  Simply put, according to this religious exemption, “Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-1, exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.” Saeemodare v. Mercy Health Services-Iowa Corp., C 05-4136-MWB (US Dist. Ct.  N.D. Iowa, Western Division, 2006) (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329 (1987)) (internal quotation marks omitted) (emphasis added).

CONCLUSION


Religious organizations may not claim the religious exemption against a Title VII discrimination claim based on a protected class other than religion; stated differently, the Title VII exemption will only apply to a plaintiff's claims of religious discrimination by a religious organization.


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.