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Tuesday, November 13, 2018

WLAD & The Constructive Discharge Provision

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), is there a provision for constructive discharge? 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.


DEFINITION OF CONSTRUCTIVE DISCHARGE

Generally, a constructive discharge occurs "where an employer forces an employee to quit by making that employee's work conditions intolerable." Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999) at fn. 3 (citing Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wash.App. 630, 631, 700 P.2d 338 (1985)). "The doctrine of constructive discharge has been described by this court as requiring 'a deliberate act of the employer creating the intolerable condition, without regard to the employer's mental state as to the resulting consequence." Martini, 137 Wn.2d at 366 (citing Bulaich, v. AT & T Info. Sys., 113 Wash.2d 254, 261, 778 P.2d 1031 (1989)) (hyperlink added). Take our Constructive Discharge Test:



THE CONSTRUCTIVE DISCHARGE PROVISION

RCW 49.60.180(2) is a subsection of WLAD that deals with discharge of an employee. It "has been interpreted to include a prohibition against constructive discharge." Martini, 137 Wn.2d at 366 (citing Bulaich v. AT & T Info. Sys., 113 Wash.2d 254, 259, 778 P.2d 1031 (1989)) (hyperlink 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.

Monday, November 5, 2018

Disability Discrimination: Places of Public Resort, Accommodation, Assemblage, Amusement

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what are the elements of a prima facie case of disability discrimination under RCW 49.60.215Unfair practices of places of public resort, accommodation, assemblage, amusementHere's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

WLAD

Under WLAD, "[t]he right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, 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 is recognized as and declared to be a civil right" in the State of Washington. RCW 49.60.030(1). This right includes, but is not be limited to "[t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." RCW 49.60.030(1)(b) (emphasis added).

UNFAIR PRACTICES

The relevant law is RCW 49.60.215 and it states as follows:
Unfair practices of places of public resort, accommodation, assemblage, amusement—Trained dog guides and service animals. (Effective until January 1, 2019.)
(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, 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 this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.
(2) This section does not apply to food establishments, as defined in RCW 49.60.218, with respect to the use of a trained dog guide or service animal by a person with a disability. Food establishments are subject to RCW 49.60.218 with respect to trained dog guides and service animals.
RCW 49.60.215 (emphasis added). On January 1, 2019, the relevant law will change as follows:
Unfair practices of places of public resort, accommodation, assemblage, amusement—Trained dog guides and service animals. (Effective January 1, 2019.)
It shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, 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 this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.
Id. (emphasis added).

THE PRIMA FACIE CASE

Accordingly, Washington courts have held that plaintiffs must prove the following in order to make out a prima facie disability discrimination case under RCW 49.60.215Unfair practices of places of public resort, accommodation, assemblage, amusement:
(1) they have a disability recognized under the statute;
(2) the defendant’s business or establishment is a place of public accommodation;
(3) they were discriminated against by receiving treatment that was not comparable to the level of designated services provided to individuals without disabilities by or at the place of public accommodation; and,
(4) the disability was a substantial factor causing the discrimination.
Fell v. Spokane Transit Authority, 128 Wn.2d 618, 637, 911 P.2d 1319 (Wash. 1996) (emphasis and hyperlinks added). While the last element is strictly a question of fact, the other three are mixed questions of fact and law. Id. In a case where the facts are either undisputed or where reasonable minds would not differ about them, a court could decide the presence or absence of the first three elements as a matter of law. Id.


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.