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WASHINGTON LAW AGAINST DISCRIMINATION
To calculate a
lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate.
Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007) (
citing Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)) (internal quotation marks omitted). The hours reasonably expended must be spent on claims having a "common core of facts and related legal theories."
Id. (internal citations and quotation marks omitted). The court should discount hours spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time.
Id. (internal citations and quotation marks omitted).
In order to reverse an attorney fee award, an appellate court must find the trial court manifestly abused its discretion. Id. (internal citations and quotation marks omitted). That is, the trial court must have exercised its discretion on untenable grounds or for untenable reasons. Id. (internal citations and quotation marks omitted).
THE CONTINGENCY ADJUSTMENT
After the lodestar amount is calculated, the court may consider adjusting the award to reflect additional factors; this is also know as a "
contingency adjustment"; however, I will address this in a
separate article.
Washington Law Against Discrimination
Disparate Treatment
Disparate treatment is a form of employment discrimination, and it occurs when an
employer treats some people less favorably than others based on
protected class. Accordingly, to establish a prima facie
disparate treatment discrimination case, a plaintiff must show that his
employer simply treats some people less favorably than others because of their protected status.
Alonso v. Qwest Commc’ns Co., LLC, 178 Wn.App. 734, 743, 315 P.3d 610 (Wash.App. Div. 2 2013) (
citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)). A plaintiff may establish a prima facie case by either offering
direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.
Id. at 743-44 (
citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).
Direct Evidence Test
The plaintiff can establish a prima facie case under the
direct evidence test by offering direct evidence of the following:
- The defendant employer acted with a discriminatory motive; and
- The discriminatory motivation was a significant or substantial factor in an employment decision.
Id. at 744 (citing
Kastanis, 122 Wn.2d at 491) (hyperlink added).
Significant/Substantial Factor
The 2nd second element–discriminatory motivation was a significant or substantial factor in an employment decision–is at issue here. Stated differently, the plaintiff must establish that the discriminatory motive–the 1st element–was a significant or substantial factor in the subject employment decision. Obviously,
employee-plaintiffs will be claiming that the subject employment decision was adverse to their interests.
However, an adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.
Id. at 748 (
citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)). And a demotion or adverse transfer, or a
hostile work environment, may amount to an adverse employment action.
Id. at 746 (
citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)) (emphasis added).
Conclusion
An employee-plaintiff might be able to build a prima facie case of disparate treatment based on a hostile work environment. However, the prima facie case will be incomplete unless the employee-plaintiff is also able to establish the 1st element of the direct evidence test; this article only addresses the 2nd element.
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by Gregory Williams, Esq. | Under Washington Law Against Discrimination, is the definition of employer (RCW 49.60.210(1)) limited to the plaintiff's current employer when pursuing a claim of unlawful retaliation? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
WASHINGTON LAW AGAINST DISCRIMINATION
Under
WLAD, it's 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's 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.
See RCW 49.60.210(1). The meaning of the term "employer" is unclear.
WLAD DEFINITION OF EMPLOYER
The WLAD definition of the term "employer" is found under RCW 49.60.040(11) and states as follows:
(11) "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.
Id. The issue is whether this definition only applies to current employers? For example, will WLAD prohibit retaliatory discrimination against job applicants by prospective employers? The Washington State Supreme Court in Certification From the U.S. District Court for the Eastern District of WA in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017), addressed this very issue.
CERT. FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT--ESD 171
In Cert. From U.S. District Court for Eastern Dist. of WA in Jin Zhu v. North Central Educational Service District-ESD 171, the plaintiff (Zhu) was a job applicant who claimed that "a prospective employer refused to hire [him] in retaliation for prior opposition to discrimination against a different employer[.]" See id. at 506. Zhu subsequently filed suit against the prospective employer in federal district court alleging, inter alia, that it violated WLAD's antiretaliation statute, RCW 49.60.210(1).
Plaintiff Zhu ultimately "prevailed on his WLAD antiretaliation claim and was awarded damages." Id. at 507. The defendant (ESD 171) then filed a motion asking, inter alia, "that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)'s scope." Id. Accordingly, "the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme Court]:"
Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?
Id. (internal quotation marks omitted).
DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER
The Washington State Supreme Court answered the certified question in Zhu affirmatively and addressed the plain language and scope of WLAD's antiretaliation provision, WLAD's definition of employer, and the policy of WLAD. The Court ultimately held that "[i]n accordance with the plain language of the Washington Law Against Discrimination, Chpater 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1)"; therefore, Zhu stated a valid cause of action based on his claim of unlawful retaliation. See Id. at 506.
During its analysis, the Court also expounded on WLAD's definition of the term "employer" as follows:
[The WLAD definition of employer (RCW 49.60.040(11))] clearly includes prospective employers, and nothing about the statutory context indicates that 'any employer' means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.
. . .
Id. at 509 (emphasis added).
CONCLUSION
Under Washington Law Against Discrimination, the definition of employer is not limited to the plaintiff's current employer when pursuing a claim of unlawful retaliation; prospective employers are also included.
by Gregory Williams, Esq. | In Pierce County, Washington, what are six affordable divorce resources? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
#6 WA STATE MODERATE MEANS PROGRAM
In 2016, more than 2 million people in Washington fell between 200% and 400% of the Federal Poverty Level (poverty guidelines) and were considered of moderate income. This means they probably couldn’t afford a full-fee attorney, yet they did not qualify for free legal aid. The Moderate Means Program (MMP) is a statewide program designed to bridge this gap with attorneys who offer reduced-fee assistance in family, housing, and consumer law cases.
- The Program does not provide immediate assistance and cannot guarantee a referral, particularly in some rural communities where attorney resources are limited.
#5 WASHINGTON PARALEGAL SERVICES
- (253) 227-8462 | University Place, WA -- by appointment only.
- Flat fee paralegal services. Call for pricing.
- Operated by experienced senior paralegal, Tina Krueger.
- Affordable document preparation: child support, divorce, parenting plans, health care directives (living wills), simple wills, quit claim deeds, excise tax affidavits and more.
- Absolutely NO attorney’s fees.
- Personalized one-on-one service.
- Service area includes the entire state of Washington including but not limited to the following Pierce County cities & towns: Auburn, Bonney Lake, Buckley, Carbonado, DuPont, Eatonville, Edgewood, Enumclaw, Fife, Fircrest, Gig Harbor, Joint Base Lewis-McChord (JBLM), Lakewood, Milton, Orting, Pacific, Puyallup, Roy, Ruston, South Prairie, Steilacoom, Sumner, Tacoma, University Place, and Wilkeson.
#4 PIERCE COUNTY COURT FACILITATOR
- (253) 798-3627 | 930 Tacoma Ave., Rm. 104 & 119, Tacoma, WA 98402.
- Some counties charge for courthouse facilitator services. Fees range from $10 to $60 per appointment. Some counties may also, or instead, assess a surcharge on the filing fee for a family law case. Low income parties may request that a filing fee be deferred for payment or waived.
- A courthouse facilitator is an individual who assists self-represented parties with their family law cases in superior court. A person is self-represented if he or she is not represented by an attorney.
- The courthouse facilitator is not your lawyer, cannot give you legal advice, and will not represent you in court.
- The Pierce County Family Law Facilitator Office is open 8:30 a.m. until 4:00 p.m., Monday through Friday.
- Appointments are made by calling the appointment line at 253-798-3627. The appointment line opens at 8:00 a.m. Monday through Friday and closes when all appointments are filled. The appointments are made one week in advance.
- Family law forms and form packets are available and may be purchased from the Pierce County Law Library.
#3 NORTHWEST JUSTICE PROJECT
NJP operates a toll-free intake and referral hotline called CLEAR (Coordinated Legal Education Advice and Referral). CLEAR serves as the statewide, centralized point of access for clients seeking free legal help, including advice, education, limited legal services, self-help materials and, where available, referrals for further representation. NJP attorneys in offices around the state provide assistance and direct representation in high priority, complex cases, including cases that address barriers to persons seeking access to our justice system, and also engage in community education efforts.
#2 TACOMAPROBONO
- (253) 572-5134 [or] e-mail vls@tacomaprobono.org. 621 Tacoma Avenue South, Suite 303, Tacoma, WA 98402.
- Tacomaprobono (formerly Volunteer Legal Services) can help with civil legal issues in Pierce County when you cannot afford to hire an attorney.
- If you call, the organization requests that you leave one message and you will be contacted by an intake specialist who can schedule you for a legal clinic or refer you to other resources as appropriate. The organization also invites you to come to their office for a walk-in intake Monday-Thursday, 9-4 (closed for lunch from noon-1:15 daily).
#1 WALAWHELP.ORG
Washington LawHelp is a guide to free civil legal services for low-income persons and seniors in Washington. This site provides legal education materials and tools that give you basic information on a number of legal problems, and in some cases, detailed instructions and forms to help you represent yourself in court. You can also locate information on free legal aid programs in Washington, including basic eligibility and contact information.
- Free legal materials and tools providing basic information on a number of legal problems.
- Free do-it-yourself packets with forms.
