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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.

Tuesday, July 24, 2018

Accent Discrimination In WA State

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, is it illegal for employers to discriminate against employees based upon foreign accentHere'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.

ACCENT DISCRIMINATION IS NATIONAL ORIGIN DISCRIMINATION

In Washington, "[n]ational origin discrimination includes discrimination against an employee because he/she shares the linguistic characteristics of a national origin group." Xieng v. Peoples Nat. Bank of Washington, 63 Wn.App. 572, 578 (Wash.App. Div. I 1991), aff’d, 120 Wn.2d 112 (Wash. 1993) (internal quotation marks and citation omitted) (hyperlinks added). Thus, under the the Washington Law Against Discrimination, national origin discrimination includes discrimination based upon foreign accent.

THE NINTH CIRCUIT

Moreover, the Ninth Circuit has found that employers face a heavy burden in accent discrimination cases as they could easily "use an individual’s foreign accent as a pretext for national origin discrimination." See id. at 579 (internal quotation marks and citation omitted). Accordingly, courts tend to thoroughly scrutinize adverse employment decisions against employees based upon claims of inadequate oral communication skills. See id. Ultimately, an employer’s adverse employment decision (e.g., promotion, termination, write-ups, etc.) "may be predicated upon an individual’s accent when--but only when--it interferes materially with job performance." Id. (quoting Fragante v. City and Cy. of Honolulu, 888 F.2d 591, 596 (9th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990)). Otherwise, the employer may be facing liability under the Washington Law Against Discrimination for national origin discrimination based upon foreign accent.

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.