The Implied Right of Action Rule

by Gregory Williams, Esq. | Under Washington State laws, what is the Implied Cause of Action Rule? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990). This judicial canon has its roots in federal law as well as the Restatement of Torts.

THE JUDICIAL CANON

The Implied Cause of Action Rule is a judicial canon directing that "when a statute ... [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland's Statutes and Statutory Construction § 55.03 (4th ed. 1973)." Bennett v. Hardy, 113 Wn.2d 113 Wn.2d 912, 920, 784 P.2d 1258, (1990) (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state's labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee's labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) ("[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy")) (alteration in original) (emphasis added) (internal quotation marks omitted).

"The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy." Bennett v. Hardy, 113 Wn.2d at 920 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).


THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that "The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett v. Hardy, 113 Wn.2d at 920 (citing Restatement (Second) of Torts § 874A (1979)).


THE ELEMENTS

Washington courts have borrowed "from the test used by federal courts in determining whether to imply a cause of action." Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

1. whether the plaintiff is within the class for whose "especial" benefit the statute was enacted;

2. whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

3. whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

Lastly, the court may make two important assumptions under the Implied Right of Action Rule: (1) "[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and [(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights." See id. at 919-20.

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

WA State Human Rights Commission: Damages for Humiliation & Suffering

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) laws, what is the maximum amount of damages that an appointed administrative law judge can award to an employment discrimination claimant for humiliation and mental suffering? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding.)

(Some of the links in this article will take the reader to one of our company websites: Washington State Human Rights Commission Digest)

THE WASHINGTON LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination, 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 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 WASHINGTON STATE HUMAN RIGHTS COMMISSION

The WSHRC is the state agency responsible for administering and enforcing the Washington Law Against Discrimination. The WSHRC works to prevent and eliminate discrimination through complaint investigation, alternative dispute resolution, and education, training and outreach activities.

THE RELEVANT LAW: RCW 49.60.250

One of WSHRCs powers is "[t]o receive, impartially investigate, and pass upon complaints alleging unfair practices as defined in th[e] [Washington Law Against Discrimination]." RCW 49.60.120(4). Accordingly, the relevant law is found under RCW 49.60.250, and it states as follows:

Hearing of complaint by administrative law judge—Limitation of relief—Penalties—Order—Arbitration.

. . . 

(5) If, upon all the evidence, the administrative law judge finds that the respondent has engaged in any unfair practice, the administrative law judge shall state findings of fact and shall issue and file with the commission and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair practice and to take such affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, an admission or restoration to full membership rights in any respondent organization, or to take such other action as, in the judgment of the administrative law judge, will effectuate the purposes of this chapter, including action that could be ordered by a court, except that damages for humiliation and mental suffering shall not exceed twenty thousand dollars, and including a requirement for report of the matter on compliance. Relief available for violations of RCW 49.60.222 through 49.60.224 shall be limited to the relief specified in RCW 49.60.225.

. . . 

RCW 49.60.250(5) (emphasis added).


CONCLUSION

Under WSHRC laws, the maximum amount of damages that an appointed administrative law judge can award to an employment discrimination claimant for humiliation and mental suffering is $20,000. This limitation only applies to arbitration proceedings through the Washington State Human Rights Commission; it does not apply to plaintiffs that litigate employment discrimination claims through other avenues such as Washington State or federal courts.

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

Suing Co-Workers for Hostile Work Environment (Harassment)

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, what are two common approaches for employees (or former employees) to sue co-workers for creating a hostile work environment? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

According to 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 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.

Hostile work environment is a WLAD legal theory, and plaintiffs typically pursue this claim against co-workers via two approaches: (1) RCW 49.60.180; and (2) RCW 49.60.220.


THE RCW 49.60.180 APPROACH

Under the first approach, the relevant hostile work environment (harassment) statute is RCW 49.60.180(3), and it states as follows:

It is an unfair practice for any employer:

. . .

(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.

. . .

Id. (emphasis added). Accordingly, to establish a prima facie claim of hostile work environment against an employer, the employee must produce competent evidence of each of the following four elements:  (1) that the harassment was offensive and unwelcome; (2) that it occurred because of the employee’s membership in a protected class; (3) that it affected the terms and conditions of employment/membership; and (4) that the harassment can be imputed to the employer. See, e.g., Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985). Notice that under RCW 49.60.180(3), the term "employer" is vague; WLAD defines that term 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.

RCW 49.60.040(11) (emphasis added).

Thus, under the RCW 49.60.180 Approach, the plaintiff suing a co-worker for creating a hostile work environment typically alleges either (1) that the harassing co-worker was the plaintiff's employer; or (2) that the harassing co-worker was acting in the interest of the employer when the unlawful harassment occurred. I will elaborate on when a co-worker is "acting in the interest of the employer" in another article.


THE RCW 49.60.220 APPROACH

The second common approach to suing co-workers for creating a hostile work environment (harassment) in violation of WLAD is based upon RCW 49.60.220 (hereinafter, "Aiding & Abetting Statute), and it states as follows:

It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.

Id.  WLAD defines the term "person" to "include[ ] one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons . . . ." RCW 49.60.040(19). Therefore, under the Aiding & Abetting Statute, a "person" can include, but is not limited to, a co-worker, supervisor, or manager.

The Aiding & Abetting Statute "focuses on conduct that encourages others to violate the WLAD." Jenkins v. Palmer, 116 Wn.App 671, 675, 66 P.3d 1119 (Div. 2 3003). It's important to note that "[t]he references to 'aid, abet, encourage, or incite' and to 'prevent any other person from complying' show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD." Id. at 675-76 (citing RCW 49.60.220) (emphasis added).

Thus, arguably, a co-worker may be liable under WLAD for creating a hostile work environment if (1) that co-worker aids, abets, encourages, or incites the employer or any person acting in the interest of the employer (e.g., a manager) in the commission of the unlawful hostile work environment (harassment); or (2) that co-worker attempts to obstruct or prevent any other person (e.g., a manager) from complying with WLAD provisions regarding hostile work environment (harassment). See id. at 671-77.


WLAD REMEDIES

If a plaintiff proves that an employer engaged in an unfair practice under WLAD, then that plaintiff may seek associated remedies against the employer. The relevant statute is RCW 49.60.030(2), and it states as follows:

. . . 

(2) 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 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).

. . . 

Id. (emphasis 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.

–gw