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Monday, February 11, 2019

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 environmentHere'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 employerSee, 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.

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