Prima Facie Case: The Replacement Element
Under Washington State laws, must a plaintiff prove that they were replaced by someone outside of their protected group (i.e., Replacement Element) to establish a prima facie case of employment discrimination? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
REPLACEMENT ELEMENT ERRONEOUSLY APPLIED IN WA STATE
"To establish a prima facie case of discrimination, Washington courts have held that plaintiffs must prove that they were replaced by someone outside of their protected group— the replacement element." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 528 (Wash. 2017) (internal citations omitted) (hyperlink added). However, "[a] review of federal authority reveals that the replacement element may have been erroneously included in Washington courts' application of the McDonnell Douglas framework." Id. at 529 (hyperlink added).
CONFLICTING FEDERAL AUTHORITY
For instance, "no United States Supreme Court authority, including McDonnell Douglas, requires the replacement element." Mikkelsen, 189 Wn.2d at 529. "Nearly every federal court addressing the issue has held that a discharged employee need not prove she was replaced by someone outside her protected class in order to establish a prima facie case of discrimination under McDonnell Douglas." Mikkelsen, 189 Wn.2d at 530 (internal citations omitted) (hyperlinks added).
-Perry v. Woodward (10th Cir. 1999)
"As the Tenth Circuit Court of Appeals noted in Perry[ ][v. Woodward, 199 F.3d 1126 (10th Cir. 1999),] although most federal courts do not preclude a plaintiff from meeting the prima facie burden when the replacement or new hire shares the protected attribute, some still require an additional fact giving rise to an inference of discrimination." Mikkelsen, 189 Wn.2d at 531 (citing Perry, 199 F.3d at 1138) (internal quotation marks omitted) (emphasis added).
"[Consequently,] [t]he Perry court rejected … [the additional-fact requirement] because it leads to uncertainty in the trial courts." Mikkelsen, 189 Wn.2d at 531. "Instead, the First, Second, and Tenth Circuits have dispensed with the replacement element and held that a plaintiff need only show that her position was not eliminated." Id. (citing Perry, 199 F.3d at 1138).
WA STATE SUPREME COURT AGREES WITH PERRY
The Washington State Supreme Court "agree[d] with Perry and clarif[ied] that the McDonnell Douglas framework does not require a plaintiff to prove that she was replaced by a person outside her protected group to establish a prima facie case of discrimination." Id. at 532 (hyperlinks added). "[T]he proof required is that the employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills." Id. (internal citations omitted).
DISPARATE TREATMENT BASED UPON TERMINATION: THE PRIMA FACIE CASE
To establish a prima facie case of employment discrimination based upon termination of employment, "the original framework articulated in McDonnell Douglas and other federal authority … requires only that[:]
[a)] a plaintiff prove membership in a protected class,
[b)] termination from a job for which she was qualified, and …
[c)] the employer continued to seek candidates for the position.
Id. (emphasis and hyperlinks added).
CONCLUSION
Thus, under Washington State laws, a plaintiff is not required to prove that they were replaced by someone outside of their protected group to establish a prima facie case of employment discrimination.
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; please see our DISCLAIMER.
–gw
