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Wednesday, October 10, 2018

Unlawful Retaliation: Employer Liability not Limited to Current Employers

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 retaliationHere'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; 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'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.


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.

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