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Saturday, July 28, 2018

Remedies For Breach of Conciliation Agreements

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the remedies for breach of conciliation agreements? 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 statussexual 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 against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

The WSHRC was established by the Washington State Legislature in 1949, and it "is a state agency responsible for administering and enforcing the Washington Law Against Discrimination." WSHRC Official Website, last accessed 4/18/18. One of its powers, inter alia, is the ability "to receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in ... [the WLAD]." RCW 49.60.120(4).

"If the facts as stated in the complaint do not constitute an unfair practice under ... [WLAD], a finding of no reasonable cause may be made without further investigation." RCW 49.60.240(1)(a). However, "[i]f the facts as stated could constitute an unfair practice under ... [WLAD], a full investigation and ascertainment of the facts shall be conducted." Id. And "[i]f the finding is made that there is reasonable cause for believing that an unfair practice has been or is being committed, the commission's staff shall immediately endeavor to eliminate the unfair practice by conference, conciliation, and persuasion." RCW 49.60.240(3) (emphasis added). Within the employment context, "the task of the commission [in effectuating conciliation] is to endeavor to eliminate the unfair practice through agreement with the respondent." Such agreements are termed "conciliation agreements."

REMEDIES FOR BREACH OF CONCILIATION AGREEMENTS

Occasionally, respondent's fail to honor the terms of WSHRC conciliation agreements. In that case, "[i]f an agreement and order for the elimination of an unfair practice made under RCW 49.60.240 is breached, the executive director may take action appropriate in the circumstances, including one or more of the following:"
(1) Specific enforcement. Bringing an action in superior or district court for specific enforcement of the agreement, or for damages pursuant to the conciliation agreement;
(2) Setting aside. Recommending to the commissioners that the agreement and order be set aside, in whole or in part, and that the case be returned to the staff for renewed conference, conciliation and persuasion, or to be referred to commission counsel for hearing; or
(3) Report to prosecuting attorney. Reporting the violation to the appropriate prosecuting attorney for prosecution under RCW 49.60.310.
WAC 162-08-109 (emphasis added).


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.

Thursday, July 19, 2018

The Functionally Similar Test & Unlawful Retaliation Claims

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), how is the Functionally Similar Test applied to unlawful retaliation claims pursuant to the antiretaliation provision? 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 statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military statusHIV/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 against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.


WLAD'S ANTIRETALIATION PROVISION

The relevant WLAD antiretaliation provision is found under RCW 49.60.210(1), and it states as follows:
(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
RCW 49.60.210 (emphasis added). That provision does not clearly establish what the phrase "other person" means. Washington courts apply the Functionally Similar Test to, inter alia, determine what "other persons" are subject to WLAD's antiretaliation provision.


FUNCTIONALLY SIMILAR TEST

Specifically, "Washington courts employ the 'functionally similar' test to determine whether the defendant had sufficient control over the plaintiff's employment to be held personally liable for discriminatory actions." Certification From the United States District Court for the Eastern District of Washington in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) (referencing Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. 927, 930, 965 P.2d 1124 (1998) (coworker without supervisory authority is not personally liable for retaliation)). Such discriminatory actions include those subject to WLAD's antiretaliation provision. Accordingly, "[t]he [antiretaliation] section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60." Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.app. at 930.

Thus, under the Functionally Similar Test, a defendant might be held personally liable for discriminatory actions under the Washington Law Against Discrimination--including the antiretaliation provision--if that defendant satisfies any one or more of the following:
  • Employs the plaintiff
  • Manages the plaintiff
  • Supervises the plaintiff
  • Is in a position to discharge the plaintiff
  • Is in a position to expel the plaintiff
  • Is in a position to expel plaintiff from membership in any organization
See id. at 930-31.


EXAMPLE: MALO v. ALASKA TRAWL FISHERIES, INC.

In Malo v. Alaska Trawl Fisheries, Inc.92 Wn.app. 927, 930, 965 P.2d 1124 (1998), plaintiff Malo sued defendants Alaska Trawl Fisheries and its employee Captain Campbell, "alleging they had taken action against him in retaliation for his opposition to sexual harassment on board the vessel." Malo, 92 Wn.app. at 928. The trial court dismissed Malo's claims on summary judgment. Malo appealed.

The Court of Appeals found that Captain Campbell "did not employ, manage or supervise Malo"; and Campbell "was not in a position to discharge Malo or to expel him from membership in any organization." Id. at 930. Consequently, Campbell did not pass the Functionally Similar Test, and the court Court of Appeals found that "[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo's claim against Campbell under that statute." Id. at 930-31.


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.

Wednesday, July 18, 2018

6 Reasons Employment Discrimination Lawsuits Fail

by Gregory Williams, Esq. | The following is a list of six typical reasons that employment discrimination claims fail in Washington based upon my experience practicing employment discrimination law in Washington State. The list is not exclusive, not scientifically prioritized, and is general in nature; I have drawn from both Washington State and Federal law. This article is solely offered as my point of view (NOTE:  please read our DISCLAIMER before proceeding).

And now, the countdown…

#6 -- THE DISCRIMINATING MANAGER HIRED YOU

The “Same-Actor-Inference” is a potential employer defense to a claim of employment discrimination. It’s applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. However, there is a bright note; in Washington, the Supreme Court has declined to adopt the Same-Actor-Inference with respect to unlawful retaliation claims.

#5 -- YOU WERE NOT PERFORMING SATISFACTORILY

Under the Washington Law Against Discrimination, disparate treatment discrimination is intentional discrimination, and it’s the most easily understood type discrimination. A substantial number of disparate treatment discrimination cases are based upon wrongful termination.  Under this basis, a common method to prove discrimination is for the plaintiff to show that he/she is a member of a protected class, had satisfactory job performance, was discharged from employment, and was replaced by someone outside the protected class. However, oftentimes plaintiffs in employment discrimination lawsuits are not performing satisfactorily at the time of termination, and, thus, their disparate treatment claims may fail.

There is good news; disparate treatment discrimination based on wrongful termination is only one of a variety of potential theories of discrimination that might be claimed depending on the facts of each case. In addition, there are several approaches to making a case, and I have only addressed one based upon what is commonly known as the McDonnell-Douglas Formulation. Consult with an attorney to learn more (see #1 below).

#4 -- IMPROPERLY BASED DISCRIMINATION

Under Washington Law Against Discrimination, language and/or conduct at work may be considered unlawful only when it’s because of a protected class.  Protected classes 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 service animal; HIV or hepatitis C; marital status; and age.

The problem generally occurs when an employee complains of discrimination to their employer but fails to indicate that the discrimination occurred on account of their protected class. This may destroy a hostile work environment claim which requires, inter alia, that the harassing language or conduct occur because of the plaintiff’s protected class.

#3 -- YOU CAN’T HOLD THE EMPLOYER RESPONSIBLE

To hold an employer responsible for hostile work environment discrimination under Washington Law Against Discrimination, an employee must, inter alia, impute conduct to the employer. Where an owner, manager, partner, or corporate officer personally participates in the discriminatory conduct, employer liability is imputed automatically. However, if the harassment is by a supervisor, co-workers or others, then the employer is liable only if it authorized, knew or should have known of the harassment and failed to take reasonably prompt and adequate corrective action.

The lesson here is that reporting discrimination to the employer immediately after it occurs sets the foundation for employer liability; but remember #4 above — a properly drafted discrimination complaint should indicate, among other things, that the discrimination occurred on account of the employee’s protected class.

#2 -- YOU NEVER COMPLAINED

In number #4 above, the discrimination complaint was not properly drafted. Under the instant category, the problem is that the complaint was never filed.

A common claim associated with employment discrimination is unlawful retaliation. One way to form this claim is through a burden shifting framework which initially requires the plaintiff-employee to establish a prima facie case. A plaintiff-employee may typically establish a prima facie case of unlawful retaliation by producing evidence of (1) a protected activity by the employee, (2) an adverse action by the employer, and (3) the employer’s knowledge of the protected activity.  The third element further requires the plaintiff-employee to show that the protected activity was a substantial factor for the adverse employer action.

One common type of protected activity that creates a partial basis for an unlawful retaliation claim is opposing practices forbidden by the Washington Law Against Discrimination. However, if an employee experiencing discrimination never complains to the employer, then the employee may not have effectively opposed discrimination under these circumstances (the employer may also claim that it lacks knowledge of the employee’s protected activity); and the claim of unlawful retaliation may fail.

#1 -- YOU DIDN’T CONSULT WITH AN ATTORNEY ASAP

Timelines are critical in employment discrimination cases. Failure to take prompt action could result in unexpected consequences such as an escalation in discrimination, termination, or being time-barred from pursing your rights through court. An employee/former employee may want to consider consulting with an attorney at the first instance of discriminatory language or conduct at work.


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, July 16, 2018

WLAD Relligious Affiliation Provision

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, is it unlawful for employers to require employees to to disclose their religious affiliationHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


I.  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 statussexual orientation (including gender identity); race; color; creednational originhonorably discharged veteran or military statusHIV/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 against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.


II.  THE RELIGIOUS AFFILIATION PROVISION

The relevant WLAD religious affiliation provision declares as follows:
It is an unfair practice for an employer to:
(1) Require an employee to disclose his or her sincerely held religious affiliation or beliefs, unless the disclosure is for the purpose of providing a religious accommodation at the request of the employee; or
(2) Require or authorize an employee to disclose information about the religious affiliation of another employee, unless the individual whose religious affiliation will be disclosed (a) expressly consents to the disclosure, and (b) has knowledge of the purpose for the disclosure.
RCW 49.60.208 (emphasis added). WLAD establishes "a private cause of action against any employer engaging in an unfair practice." Certification From United States District Court for Eastern District of Washington in Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504, 507 (citing Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014) (internal quotation marks and citations omitted) (emphasis added).


III.  CONCLUSION

Under the Washington Law Against Discrimination, it is unlawful for employers to require employees to disclose their religious affiliation unless the disclosure is for the purpose of providing a religious accommodation at the request of the employee.


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.