The Functionally Similar Test & Unlawful Retaliation Claims
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 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 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; 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 (emphasis added).
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:
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
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.
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.
