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Sunday, April 21, 2019

WLAD & The Faragher-Ellerth Affirmative Defense

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, what is the Faragher-Ellerth Affirmative DefenseHere'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 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 (also known as harassment) is a form of unlawful employment discrimination.


WLAD: HOSTILE WORK ENVIRONMENT

Generally, to establish a prima facie claim of hostile work environment under WLAD, 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 Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (emphasis and hyperlinks added). For purposes of this article, the fourth element--imputed to the employer--is at issue.


HOSTILE WORK ENVIRONMENT: 4TH ELEMENT (IMPUTATION)

Under WLAD claims of hostile work environment, plaintiffs may attempt to impute harassment to employers based on the level of the offending employee.

Managers: According to the court in Glasgow, "[w]here an owner, manager, partner or corporate officer personally participates in the harassment, [the imputation] element is met by such proof." Id. at 407, 693 P.2d 708 (emphasis added). This is also known as automatic imputation.

Supervisors & Co-Workers: "To hold an employer responsible for the discriminatory work environment created by a plaintiff's supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action. 
Id. (emphasis added). "This may be shown by proving [the following:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer's knowledge or constructive knowledge of it and
(b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment."
Id. (emphasis added).


GLASGOW & TITLE VII

"The Glasgow formulation of the elements of ... harassment is taken from federal cases interpreting Title VII." Sangster v. Albertson's, Inc., 99 Wn.App. 156, 164, 991 P.2d 674 (Wash.App. Div. 3 2000) (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708) (hyperlink added). "Since Glasgow was decided, several federal cases have held that there should not be automatic imputation where the harasser is a supervisor at the employment site but does not occupy an upper level management position." Sangster, 99 Wn.App. at 164 (citing Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir.1997); Torres v. Pisano, 116 F.3d 625 (2nd Cir. 1997); Andrade v. Mayfair Mgt., Inc., 88 F.3d 258 (4th Cir.1996)) (emphasis and hyperlink added). "In response to those cases, the United States Supreme Court clarified federal law in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) and [Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998)]." Id. at 164, 991 P.2d 674 (emphasis added). Through these cases, the court established the Faragher-Ellerth Affirmative Defense.


FARAGHER-ELLERTH AFFIRMATIVE DEFENSE & WLAD

The Faragher-Ellerth Affirmative Defense (Affirmative Defense) applies to the imputation element of Title VII hostile work environment claims: the harassment can be imputed to the employer. The Affirmative Defense determines whether an employer is vicariously liable for a hostile work environment created by a supervisor. Id. at 164, 991 P.2d 674 (emphasis added).

In Washington State, courts have also allowed defendant employers to assert the Affirmative Defense against plaintiffs' WLAD-based hostile work environment claims pursuant to alleged misconduct of high level managers. See id., 991 P.2d 674 (finding (1) that imputation was based on the conduct of the store manager who was also plaintiff's supervisor; (2) that Glasgow did "not discuss the effect of failure to use an anti-sexual harassment complaint procedure"; and (3) that Glasgow "did not attempt to articulate defenses which may have been available to the employer[ ]" -- thus, Glasgow was not controlling).


THE AFFIRMATIVE DEFENSE

"When no tangible employment action is taken, a defending employer may raise [the] [A]ffirmative [D]efense to liability or damages, subject to proof by a preponderance of the evidence, see F. Rule Civ. Proc. 8(c)." Id. at 165, 991 P.2d 674 (hyperlink added). "The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.... No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
Id. (citing Burlington, 118 S.Ct. at 2270; Faragher, 118 S.Ct. at 2293 (block indents added). "Thus, if the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment." Id. "This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action, and then only if the employer can prove both elements of the affirmative defense." 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.