Employee Discrimination Hotlines: Use Caution
Under Washington State unlawful-retaliation laws, should employees reporting employment discrimination--via employer hotlines--specify their protected status(es), when they intend to rely on those reports to prosecute subsequent unlawful-retaliation claims? Here'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; 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.
UNLAWFUL RETALIATION (WA STATE)
"The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination." Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 753 (Div. 2 2013) (citing RCW 49.60.210).
THE PRIMA FACIE CASE
"To establish a prima facie retaliation case, a plaintiff must show that[:]
(1) he engaged in statutorily protected activity,
(2) his employer took an adverse employment action against him, and
(3) there is a causal link between the activity and the adverse action."
Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added) (emphasis added).
Element (1): Statutorily Protected Activity: One way "[a]n employee engages in WLAD-protected activity [is] when … [the employee] opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory." Id. at 754 (citing Short, 169 Wn.App. at 205).
COMPLAINTS MUST REFERENCE PLAINTIFF'S PROTECTED STATUS
However, "[a] general complaint about an employer's unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff's protected status." Alonso v. Qwest Communications Company, LLC, 178 Wn.App. at 754 (referencing Graves v. Dep't of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)) (emphasis added).
EXAMPLE: ALONSO v. QWEST COMMUNICATIONS COMPANY, LLC
In Alonso, "Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]" Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734. "[T]he superior court granted Qwest summary judgment dismissal of Alonso's complaint." Id. "Alonso appeal[ed], arguing that he provided sufficient evidence to establish [a] prima facie discrimination claim[ ] for[, inter alia,] … unlawful retaliation." Id.
While working for Qwest, Alonso "used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor and another employee." Id. at 754 (emphasis added). However, Alonso "did not express that his complaints were in response to harassment based on any protected status." Id. (emphasis added).
Accordingly, "[t]he Court [of Appeals] initially evaluated whether Alonso met the first element of an unlawful retaliation claim -- that he participated in protected activity." Id. The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not phone the hotline to report discrimination against him based on a protected class. Id. at 754. Therefore, the Court affirmed the trial court's dismissal of his unlawful retaliation claim. Id. at 754-55.
Thus, in my opinion, under Washington State unlawful-retaliation laws, employees reporting employment discrimination--via employer hotlines--should seriously consider specifying their relevant protected status(es) if they intend to rely on those reports to prosecute subsequent unlawful-retaliation claims. In any event, NO content in this article, regardless of date, should ever be used as a substitute for direct legal advice from your attorney.
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.