Unlawful Retaliation: Causal Link

Unlawful Retaliation: Causal Link

Under the Washington Law Against Discrimination, how does one prove a "causal link" when pursuing a claim of unlawful retaliation? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


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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; citizenship or immigration status; 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

"To establish a prima facie case of retaliation [using the McDonnell Douglas 'evidentiary burden-shifting' framework] an employee must show three things:

(1) the employee took a statutorily protected action

(2) the employee suffered an adverse employment action, and 

(3) a causal link between the employee's protected activity and the adverse employment action.

Cornwell v. Microsoft Corporation192 Wn.2d 403, 411, 430 P.3d 229 (2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) ("establishing the retaliation test in the worker's compensation context")) (emphasis, paragraphs, and hyperlinks added).

ELEMENT #3:  THE CAUSAL LINK

"Ordinarily, proof of the employer's motivation must be shown by circumstantial evidence because the employer is not apt to announce retaliation as his motive." Kahn v. Salerno, 90 Wn. App. 110, 130-31, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998) (internal citations and quotation marks omitted).  Accordingly, there are two typical methods of proving a causal link between the employee's protected activity and the adverse employment action

Method #1: "Proximity in time between the adverse action and the protected activity, coupled with evidence of satisfactory work performance and supervisory evaluations suggests an improper motive." Id. (internal citations omitted)

Method #2: "[I]f the employee establishes that he or she participated in an opposition activity, the employer knew of the opposition activity, and he or she was discharged, then a rebuttable presumption is created in favor of the employee that precludes … [the court] from dismissing the employee's case." Id. (internal citation omitted).

READ MORE ABOUT THIS TOPIC

We invite you to read our article: Unlawful Retaliation: The Prima Facie Case

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

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