WPI 330.00 Employment Discrimination—Introduction
6A WAPRAC WPI 330.00Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.00 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.00 Employment Discrimination—Introduction
Statutory discrimination claims. State law discrimination claims usually arise under RCW Chapter 49.60, which prohibits discrimination on the basis of creed, color, disability, marital status, national origin, race, religion, gender, HIV infection, use of a trained guide or service dog, and military status, as well as retaliation for opposing discriminatory practices. Other state statutes supplement RCW Chapter 49.60. See, e.g., RCW 49.44.090 (implying right of action for age discrimination) and RCW 49.58.020 (expressing right of action for gender discrimination in pay for “comparable work”); but see Marquis v. City of Spokane, 130 Wn.2d 97, 112–15, 922 P.2d 43 (1996) (allowing independent contractor to bring a discrimination claim under the Washington Law Against Discrimination (WLAD)).
State law wage and hour claims may arise under RCW Chapter 49.46, the Minimum Wage Act. RCW Chapter 49.46 definitions and standards are now included in these pattern instructions, including instructions on joint employers and employee/independent contractor classifications. WPI 330.90 (Employment Discrimination—Employee Versus Independent Contractor (Minimum Wage Act)); WPI 330.91 (Employment Discrimination—Joint Employer Status (Minimum Wage Act)). These instructions may not apply to claims arising under other statutes or common law.
These instructions relate only to causes of action arising under RCW Chapter 49.60, RCW Chapter 49.44, RCW Chapter 49.46, and common law wrongful termination or constructive discharge in violation of public policy. Any causes of action based on city or county ordinances are not addressed by these instructions.
Because RCW 49.60.040(11) defines “employer” to include “any person acting in the interest of an employer, directly or indirectly,” a phrase that “encompass[es] individual supervisors and managers,” individual supervisors and managers “along with their employers, may be held liable [under RCW Chapter 49.60] for their discriminatory acts.” Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 357–59, 361, 20 P.3d 921 (2001). While these instructions are phrased to cover claims against employers, they can be adapted to cover claims against multiple defendants, labor unions (see RCW 49.60.190), employment agencies (see RCW 49.60.200), and anyone who “aid[s], abet[s], encourage[s], or incite[s]” discrimination (see RCW 49.60.220). An “aiding and abetting” instruction is not provided in these pattern instructions, as aiding and abetting cases have not arisen with sufficient frequency to generate significant appellate court discussion of the subject.
Interaction with federal law. Washington cases recognize federal authority as a helpful guide in construing RCW Chapter 49.60, but only when it “best further[s] the purposes and mandates of our state statute.” Blackburn v. State, 186 Wn.2d 250, 258, 375 P.3d 1076 (2016). However, federal law interpretations are inapplicable when the language of the state statute differs significantly from that in the corresponding federal statute. Brown, 143 Wn.2d at 358; Martini v. Boeing Co., 137 Wn.2d 357, 372–77, 971 P.2d 45 (1999) (federal law not helpful when the statutory language differs significantly).
RCW Chapter 49.60's liberal construction mandate makes it broader in scope than Title VII. Martini, 137 Wn.2d at 372–73 (citing RCW 49.60.020). When the Washington Supreme Court interpretationsof the WLAD differ from those of federal statutes, “it has almost always ruled that the WLAD provides greater employee protections than its federal counterparts do.” Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014); see, e.g., Brownfield v. City of Yakima, 178 Wn.App. 850, 872, 316 P.3d 520 (2014) (while ADA requires “but for” causation, WLAD disability claims use a less stringent “substantial factor” test).
Also, federal law discrimination claims may be joined with claims brought under RCW Chapter 49.60 because some federal discrimination claims may be brought in state court. See, e.g., Yellow Freight Sys., Inc., v. Donnelly, 494 U.S. 820, 821, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (holding that state courts have concurrent authority to adjudicate Title VII claims); DeHorney v. Bank of Am. Nat'l Trust and Sav. Ass'n, 879 F.2d 459, 463 (9th Cir. 1989) (holding that state courts have concurrent authority to adjudicate section 1981 claims); Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 64, 837 P.2d 618 (1992) (Title VII); Sambasivan v. Kadlec Med. Ctr., 184 Wn.App. 567, 570, 578, 338 P.3d 860 (2014) (§ 1981 and WLAD claims); Miguel v. Guess, 112 Wn.App. 536, 541, 51 P.3d 89 (2002) (§ 1983 claim against public employer).
Major sources of federal anti-discrimination law include:
- • Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits discrimination on the basis of race, color, religion, gender, pregnancy, and national origin, see WPI Part XVII, Civil Rights, including WPI 340.00 (Civil Rights—Introduction);
- • the Americans with Disabilities Act, 29 U.S.C. §§ 12101 et seq., and the Rehabilitation Act, 29 U.S.C. §§ 791 et seq., which prohibit discrimination on the basis of disability;
- • the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., which prohibits discrimination on the basis of age;
- • the Equal Pay Act, 29 U.S.C. § 206(d)(1), which prohibits discrimination in pay on the basis of sex; and
- • 42 U.S.C. § 1981, which prohibits discrimination on the basis of race, ancestry, ethnicity (see St. Francis College v. Al-Khazraji, 481 U.S. 604, 614, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)), and in some instances religion (see Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18,107 S.Ct. 2019, 95 L.Ed.2d 594 (1987)).
These statutes also prohibit retaliation.
A number of federal circuits, including the Ninth Circuit, have model jury instructions on certain employment discrimination claims arising under federal statutes. When federal issues exist, or when state law is silent on an issue that has been addressed in federal statutes or cases, these model instructions may provide some assistance.
Disparate treatment claims. Disparate treatment instructions are set forth in WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof) and WPI 330.32 (Employment Discrimination—Disability Discrimination—Disparate Treatment—Burden of Proof). Disparate treatment, which “is the most easily understood type of discrimination,” occurs when “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, … national origin” or other prohibited characteristic. Blackburn, 186 Wn.2d at 258. “When an employee makes out a claim of disparate treatment under the WLAD, like Title VII, the employer's action is unlawful unless the employer has a valid justification …” such as affirmative action or a bona fide occupational qualification. Blackburn, 186 Wn.2d at 258–59.
In 2014, the Washington Supreme Court recognized a claim for failure to make a religious accommodation. Kumar, 180 Wn.2d 481. In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774–75, 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015), the U.S. Supreme Court held that a disparate treatment claim based on religion arises under Title VII when the employer makes the employee's religious practice an issue in an employment decision.
Bona fide occupational qualification defense. Sometimes, an employer may justify an otherwise discriminatory decision by asserting a bona fide occupational qualification (“BFOQ”) defense. RCW 49.60.180(1); Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 357–58, 172 P.3d 688 (2007). WPI 330.04 (Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense) applies to the BFOQ defense in refusal to hire or wrongful discharge situations. Kries v. WA-SPOK Primary Care, LLC, 190 Wn.App. 98, 128, 362 P.2d 974 (2015).
Disparate impact claims. Disparate impact analysis bars “facially neutral employment policies that have disproportionate adverse effects on a protected class.” Kumar, 180 Wn.2d at 499. “To establish a prima facie case of disparate impact, the plaintiff must show that (1) a facially neutral employment practice (2) falls more harshly on a protected class.” Kumar, 180 Wn.2d at 503. See WPI 330.02 (Employment Discrimination—Disparate Impact—Definition).
Workplace harassment claims. Sexual harassment cases generally fall into two types of claims: “the quid pro quo sexual harassment claim, where the employer requires sexual consideration from the employee for job benefits, and the hostile work environment claim.” Antonius v. King Cnty., 153 Wn.2d 256, 261, 103 P.3d 729 (2004). RCW Chapter 49.60 also allows hostile work environment claims based on other protected characteristics. Robel v. Roundup Corp., 148 Wn.2d 35, 48, 59 P.3d 611 (2002) (allowing disability-based hostile work environment claim); Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (race-based hostile work environment claim); Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595–96, 769 P.2d 318 (1989) (allowing race-based hostile work environment claim).
The two basic types of workplace protected category harassment claims are covered in WPI 330.21 (Employment Discrimination—Workplace Harassment—General), together with WPI 330.22 (Employment Discrimination—Sexual Harassment—Quid Pro Quo—Burden of Proof) or WPI 330.23 (Employment Discrimination—Workplace Harassment—Hostile Work Environment—Burden of Proof). See Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 405, 693 P.2d 708 (1985). These instructions can be adapted for use in retaliation cases, when the retaliation takes the form of work place harassment, or for use in harassment based on other prohibited characteristics, such as race. See the Comment to WPI 330.23 (Employment Discrimination—Workplace Harassment—Hostile Work Environment—Burden of Proof).
Disability claims.A disabled employee may have a cause of action for at least two different types of discrimination: (1) disparate treatment because of the employee's disability, and (2) failure to accommodate when the employer failed to reasonably accommodate the employee's disability. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144–45, 94 P.3d 930 (2004) (citing RCW 49.60.180).
The Legislature substantially amended RCW Chapter 49.60 in 2007 by defining “disability,” a term previously undefined in the statute. See RCW 49.60.040(7). This amendment expanded the definition in response to the decision in McClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006), in which the Supreme Court determined that the definition of “disability” found in the Americans with Disabilities Act, 42 U.S.C. § 12101, applied in actions brought under RCW Chapter 49.60. See Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 502, 198 P.3d 1021 (2009). The instructions at WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability), WPI 330.31.01 (Employment Discrimination—Disability Discrimination—Definition of Impairment), and WPI 330.33 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden of Proof) incorporate the legislative definition, which is considerably broader than the definition previously adopted in McClarty and the federal law definition. The current legislative definition applies to all causes of action occurring before July 6, 2006, and on or after July 21, 2007. Hale, 165 Wn.2d at 502; RCW 49.60.040.
Claims of failure to reasonably accommodate a disability are covered by WPI 330.33 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Burden of Proof) and WPI 330.34 (Employment Discrimination—Disability Discrimination—Reasonable Accommodation—Definition). Such claims arise from the recognition that “different treatment may eliminate discrimination against the [disabled] and open the door to employment opportunities.” Holland v. Boeing Co., 90 Wn.2d 384, 388, 583 P.2d 621 (1978) (emphasis in original). An employer must “reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer.” Riehl, 152 Wn.2d at 145. An employer's duty to accommodate does not require it to alter the “essential functions” of the job, properly understood as the “fundamental job duties” or “indispensable” tasks of the position. Davis v. Microsoft Corp., 149 Wn.2d 521, 534–35, 70 P.3d 126 (2003).
Retaliation. It is unlawful for an employer to retaliate against a person for (1) opposing what the person reasonably believed to be discrimination in violation of RCW Chapter 49.60 or (2) providing information to or participating in a proceeding to determine whether discrimination or retaliation occurred. See WPI 330.05 (Employment Discrimination—Retaliation). One of the elements of a retaliation claim is an adverse employment action. See WPI 330.06 (Employment Discrimination—Retaliation—Adverse Employment Action—Definition). The definition of an adverse employment action is different for retaliation claims than for claims of disparate treatment. Compare WPI 330.04 (Employment Discrimination—Bona Fide Occupational Qualification (BFOQ) Defense) with WPI 330.01.02 (Employment Discrimination—Disparate Treatment—Adverse Employment Action—Definition). For claims involving retaliation for refusal to hire an applicant in retaliation for prior opposition to discrimination against a different employer, see Jin Zhu v. N. Cent. Educ. Serv. Dist. - ESD 171, 189 Wn.2d 607, 404 P.3d 505 (2017).
Employee versus independent contractor classification. Depending on the cause of action, a plaintiff's ability to bring a successful claim may turn on whether the law classifies the plaintiff as an “employee” or an “independent contractor.” See Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 871, 281 P.3d 289 (2012) (discussing definition of “employee” for Minimum Wage Act claim); Sambasivan, 184 Wn.App. at 590–92 (allowing independent contractor to bringWLAD retaliation claim); Ebling v. Gove's Cove, Inc., 34 Wn.App. 495, 497–98, 663 P.2d 132 (1983) (discussing definition of “employee” for Wage Rebate Act claim). For Minimum Wage Act claims when there is a question about the plaintiff's employee or independent contractor status, WPI 330.90 (Employment Discrimination—Employee Versus Independent Contractor (Minimum Wage Act)) should be used.
Damages. The most common elements of compensatory damages in cases brought under RCW Chapter 49.60, including damages for future lost wages, are covered in WPI 330.81 (Employment Discrimination—Damages—Economic and Non-Economic—No After-Acquired Evidence) and WPI 330.82 (Employment Discrimination—Damages—Future Lost Earnings (Front Pay)). A third instruction, WPI 330.83 (Employment Discrimination—Damages—Mitigation—Wage Loss), addresses the issue of failure to mitigate in an employment discrimination case when the failure is related to efforts to pursue other employment opportunities.
The instructions now incorporate the after-acquired evidence doctrine, which can reduce a plaintiff's lost wage damages when the employer discovers misconduct by the employee. WPI 330.81.01 (Employment Discrimination—Damages—Economic and Non-Economic—After-Acquired Evidence); WPI 330.81.02 (Employment Discrimination—Damages—After-Acquired Evidence). An employer can reduce back pay damages and preclude front pay damages by demonstrating it would have terminated the employee if it had known of the employee's misconduct at the time. Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 60, 366 P.3d 1246 (2015).
Common law claims. Increasingly, employment law claims are going to trial based on common law theories. See, e.g., Robel, 148 Wn.2d at 51 (outrage claim arising out of work place harassment); Roberts v. Dudley, 140 Wn.2d 58, 71, 993 P.2d 901 (2000) (wrongful discharge in violation of public policy); Bennett v. Hardy, 113 Wn.2d 912, 919, 784 P.2d 1258 (1990) (discharge in violation of public policy). But see Haubry v. Snow, 106 Wn.App. 666, 678, 31 P.3d 1186 (2001) (no negligent infliction of emotional distress claim based on same facts as discrimination claim).
In 2015, the Washington Supreme Court revived the wrongful termination in violation of public policy tort by overruling the requirement that a plaintiff establish inadequacy of alternative remedies. Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 286, 358 P.3d 1139 (2015); Becker v. Cmty. Health Sys., Inc., 184 Wn.2d 252, 258, 359 P.3d 746 (2015); Rickman v. Premera Blue Cross, 184 Wn.2d 300, 309–10, 358 P.3d 1153 (2015). The court reaffirmed the approach it had established in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984), and Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 913 P.2d 377 (1996).
The Rose court stated that a plaintiff will satisfy his or her burden and establish liability under one of the four common scenarios: (1) when employees are fired for refusing to commit an illegal act, (2) when employees are fired for performing a public duty or obligation, such as serving jury duty, (3) when employees are fired for exercising a legal right or privilege, such as filing workers' compensation claims, and (4) when employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing. Rose, 184 Wn.2d at 286–87.
The Rose court also noted that while the Thompson analysis will suffice in most cases, a more “refined analysis” might be necessary when the facts do not fit neatly into one of the four scenarios. In those cases, a court will analyze a claim for wrongful discharge in violation of public policy under a Gardner analysis, by examining:
Rose, 184 Wn.2d at 277 (quoting Gardner, 128 Wn.2d at 941).
Wrongful termination and constructive discharge in violation of public policy are now covered in WPI 330.50 (Employment Discrimination—Wrongful Termination in Violation of Public Policy), WPI 330.51 (Employment Discrimination—Wrongful Termination by Employer in Violation of Public Policy—Burden of Proof), and WPI 330.52 (Employment Discrimination—Constructive Discharge—Burden of Proof).
Public Accommodation Claims. For a discrimination or harassment claim against an employer brought by a member of the public based upon acts or conduct of that employer's agent or employee, see Floeting v. Grp. Health Coop., 192 Wn.2d 848, 434 P.3d 39 (2019); W.H. v. Olympia Sch. Dist., 195 Wn.2d 779, 465 P.3d 322 (2020); WPI 330.45 (Employment Discrimination—Pregnancy Discrimination—Reasonable Accommodation—Burden of Proof).
[Current as of October 2020.]
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