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Monday, August 20, 2018

Statute of Limitations: Hostile Work Environment & The Morgan Analysis

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), how is the statute of limitations calculated for hostile work environment claims? 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.


STATUTE OF LIMITATIONS: THE MORGAN ANALYSIS

A statute of limitations is a law that bars claims after a specified period; a statute establishing a time limit for suing in a civil case. Black's Law Dictionary 1450-51 (8th ed.2004). Typically, "[d]iscrimination claims must be brought within three years under the general three-year statute of limitations for personal injury actions." Antonius v. King County, 153 Wn.2d 256, 261-62, 103 P.3d (2004) (citing RCW 4.16.080(2)). However, the statute of limitations for a hostile work environment claim is calculated using the Morgan Analysis, because the objectionable practice does not necessarily occur on a particular day.

Under the Morgan Analysis:
[W]here a discrete act of discrimination is alleged, the limitations period runs from the act. Antonius, 153 Wash.2d at 264, 103 P.3d 729. But for a hostile work environment claim, the objectionable practice does not occur on a particular day. Id. Thus, conduct throughout the time the acts occurred could be considered if the plaintiff presented evidence that one or more acts took place within three years of when the claim was filed. Id. Accordingly, " [u]nder Morgan, a ‘ court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period.’ " Id. at 271, 103 P.3d 729 (quoting Morgan, 536 U.S. at 120, 122 S.Ct. 2061). " The acts must have some relationship to each other to constitute part of the same hostile work environment claim." Id. If no relationship exists, " or if ‘ for some other reason, such as certain intervening action by the employer’ the act is ‘ no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts' as part of one hostile work environment claim." Id. (quoting Morgan, 536 U.S. at 118, 122 S.Ct. 2061).
Cox v. Oasis Physical Therapy, PLLC, 153 Wn.App. 176, 195-96, 222 P.3d 119, (Div. 3 2009) (hyperlinks added).


CONCLUSION

The statute of limitations for a hostile work environment claim under WLAD is typically three years. However, when the court addresses an actionable hostile work environment practice, it may consider acts occurring outside of the three-year statute of limitations period if the plaintiff shows that one or more acts that are part of that same actionable hostile work environment practice happened within three years of when the underlying claim was filed.


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, August 14, 2018

McDonnell Douglas Framework (Step 1): The Prima Facie Case

by Gregory Williams, Esq. | Under the McDonnell Douglas Framework, (Framework), as applied by Washington State courts, how does a plaintiff establish step 1 -- the prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).
(To learn about the entire Framework and how it is applied, read our recent article entitled: The McDonnell Douglas Burden-Shifting Framework)

THE MCDONNELL DOUGLAS FRAMEWORK

The McDonnell Douglas burden-shifting framework has three steps:
STEP 1The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 2"[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 3"[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis and hyperlink added). 

A CLOSER LOOK: STEP 1 -- THE PRIMA FACIE CASE

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id. 

In Washington State, legal theories under the Washington Law Against Discrimination (proven via circumstantial evidence) have unique and separate formulations for the prima facie case. For example, here are prima facie case requirements for two common legal theories, inter alia:

1. HOSTILE WORK ENVIRONMENT (HARASSMENT): to establish a prima facie case of hostile work environment, the plaintiff must show: (1) that the harassment was unwelcome; (2) that the harassment was based on membership in a protected class; (3) that the harassment affected the terms and conditions of employment; and (4) that the harassment can be imputed to the employer. Glasgow v. Georgia-Pacific Corporation, 103 Wn.2d 401, 406-07, 693 P.2d 708 (Wash. 1985). Take our Hostile Work Environment Video Test:

2. UNLAWFUL RETALIATION: to establish a prima facie case of unlawful retaliation, the plaintiff must show (1) that the he/she engaged in a protected activity (e.g., complaining to the employer about job discrimination based on a protected class, participating in an investigation to determine whether discrimination occurred, etc.); (2) that the plaintiff experienced an adverse employment action; and (3) that there is a causal link between the activity and the adverse action. Alonso v. Qwest Communications Company, 178 Wn.App. 734, 753-54, 315 P.3d 610 (Wash.App.Div. 2 2013) (citing, Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 279 P.3d 902 (Div. 2 2012), overruled on other grounds by Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014)). Take our Unlawful Retaliation Video Test:


Additional legal theories under the Washington Law Against Discrimination include, but are not limited to, the following: disparate treatment, disparate impact, failure to provide reasonable accommodations, etc. Again, each theory has its own requirements for a prima facie case. Moreover, some elements of the prima facie case may contain additional requirements.


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, August 8, 2018

Disparate Treatment vs Disparate Impact Discrimination

by Gregory Williams, Esq. | Under Washington law, what is the difference between disparate treatment and disparate impact discrimination? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Discrimination may occur because of the disparate treatment of persons or because actions result in a disparate impact upon different people. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (Wash. 1986) (hyperlink added to original).

DISPARATE TREATMENT

To prove “disparate treatment” a plaintiff must show that an employer treated an individual employee or group of employees differently because of sex, race, age, religion or some other improper differentiation (i.e., protected class). See id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); [s]ee also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)) (internal hyperlink added). This is what most people envision when they think of employment discrimination. But discrimination can also occur in the form of disparate impact.

DISPARATE IMPACT

To prove a “disparate impact” from discrimination upon a person or group of persons, a plaintiff must show that an employment practice, which was facially neutral, resulted in discrimination against persons because of their age, sex or other improper distinction. Id. (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See Fahn v. Cowlitz Cy, 93 Wash.2d 368, 610 P.2d 857 (1980); Stieler v. Spokane Sch. Dist. 81, 88 Wash.2d 68, 558 P.2d 198 (1977)). For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (a protected class).  The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class; and the court found a viable claim of disparate impact discrimination–reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.

Overall, the message here is that there is a tangible difference between disparate treatment and disparate impact discrimination and each can provide a basis for relief under Washington law.


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

Friday, August 3, 2018

WLAD Magic: Front & Back Pay Without Proving Unlawful Discharge

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), may plaintiffs recover front and back pay for successful discrimination claims without proving actual or constructive discharge in violation of WLAD, when these damages are proximately caused by unlawful discrimination? 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. See RCW 49.60.230; RCW 42.40. 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.

The relevant WLAD provisions are as follows:
It is an unfair practice for any employer:
... 
(2) To DISCHARGE or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or 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.
(3) To DISCRIMINATE against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or 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: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.
... 
RCW 49.60.230 (hereinafter, "statute") (emphasis added). Pursuant to these unfair practices, "[a] wrongful act of discrimination under the statute does not necessarily lead to discharge of the employee, but it is possible that discharge or constructive discharge can result from such an act." Martini v. The Boeing Company, 137 Wn.2d 357, 366 (Wash. 1999).


DISTINCTION BETWEEN DISCRIMINATION & DISCHARGE

Discharge and discrimination are separate causes of action. "[S]ince ... [WLAD] ... deals separately with unlawful discrimination against an employee and unlawful discharge of an employee, it is clear that each of these acts amounts to a different violation of the law against discrimination and gives rise to a separate cause of action under the statute. This would be true even if the claim for discrimination and the claim for discharge arose from the employer's same act." Id. at 366 (emphasis added).


THE REMEDIES PROVISION

The remedies for all causes of action under WLAD originate from the same source -- RCW 49.60.030(2) (hereinafter, "Remedies Provision"). Accordingly, "the law against discrimination expressly provides:
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...."
Id. at 366-67 (citing RCW 49.60.030(2)) (emphasis added).

WLAD "does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3) [(unlawful discrimination)], but the usual rules which govern the elements of damage for which compensation may be awarded apply." Id. at 368 (internal citations omitted).


ALL WLAD REMEDIES AVAILABLE FOR DISCRIMINATION CLAIMS

The Remedies Provision "provides a person who has been discriminated against in violation of RCW 49.60.180(3)[--the discrimination provision--]with a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages." Id. at 368 (hyperlink added). "[T]here is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2)." Id. at 368 (hyperlink added).


EXAMPLE: MARTINI v. BOEING

In Martini v. Boeing, the plaintiff-employee (Martini) resigned from Boeing based on disability discrimination. He tried to find work, but was unsuccessful. Martini then sued Boeing for damages based on both disability discrimination and constructive discharge in violation of WLAD; and he sought reinstatement.

The trial court granted partial summary judgment in favor of Boeing: it dismissed his separate constructive discharge claim. The jury awarded Martini the following damages for Boeing's disability discrimination and entered judgment on the jury verdict: lost earnings ($205,356), lost future earnings ($480,932), pain, suffering, and emotional distress ($75,000), and past and future medical expenses ($15,000).

Boeing appealed arguing, inter alia, that because Martini was not constructively discharged, he was not entitled to seek damages for front and back pay. But the Court of Appeals rejected Boeing's argument and affirmed the award of front and back pay. Boeing then petitioned the Washington State Supreme Court and the petition was granted.

--Supreme Court Finds Back Pay Okay

The WA Supreme Court affirmed the Court of Appeals, finding, inter alia, that Washington case law "supports the proposition that back pay may be awarded for a discriminatory act in violation of RCW 49.60.180(3) [(unlawful discrimination)] even if there is no finding of constructive discharge, so long as the damages were proximately caused by the wrongful act." Id. at 378. (hyperlink and emphasis added).

--Supreme Court Finds Front Pay Okay

The Court also found that "a plaintiff with a successful discrimination claim under RCW 49.60.180(3) may recover front ... pay as part of his damages, if he establishes the same was proximately caused by an unlawful discrimination." It is not essential that the plaintiff prove constructive discharge in a separate cause of action. Martini, 137 Wn.2d 357.


CONCLUSION

WLAD permits recovery of front and back pay for a successful discrimination claim (absent proof of unlawful actual or constructive discharge -- RCW 49.60.230 (2)) when such damages are proximately caused by unlawful discrimination.


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.