WPI 330.01 Employment Discrimination—General—Disparate Treatment—Burden of Proof

This instruction is not intended for use in Disability Discrimination cases. Instead, use WPI 330.31– .37, as appropriate to the case.

Use WPI 330.01.02 (Employment Discrimination—Disparate Treatment—Adverse Employment Action—Definition) if there is a factual issue whether the employer's action is an adverse employment action.

Select the bracketed words or phrases as appropriate.

This instruction is intended for use in a disparate treatment case involving a discrete adverse employment action, such as a discharge, demotion, a change in benefits or compensation, a layoff, or a failure to hire or promote. The parties will usually set out their competing views on the employer's motivation in a summary of claims instruction. This instruction simply describes the ultimate issue to be decided by the jury.

For a disparate impact claim, rather than a disparate treatment claim, use WPI 330.03 (Employment Discrimination—Disparate Impact—Business Necessity—Burden of Proof) with WPI 330.02 (Employment Discrimination—Disparate Impact—Definition) instead of this instruction.

For workplace harassment cases, use this instruction with WPI 330.21 (Employment Discrimination—Workplace Harassment—General) and, depending on the theory of the case, 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).

When necessary to avoid confusion, “sex” may be substituted for “gender” in gender discrimination cases. Washington's law against discrimination specifically provides that “sex” and “gender” are interchangeable. RCW 49.60.040(25).

For a discussion of honorably discharged veteran status and military status, see the Comment.

In a retaliation case, use WPI 330.05 (Employment Discrimination—Discrimination—Retaliation).

This instruction should be used with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

Agency may be an issue in cases challenging discrete employment decisions. WPI 50.18 (Corporation Acts Through its Employees—No Issue as to Scope of Agency) may be used in such cases. When a plaintiff has made a claim against a supervisor or manager who personally participated in the challenged employment decisions(s) and/or act(s), this instruction may need to be modified. See the discussion in the Comment.

This instruction has been modified for this edition to add “citizen or immigration status” and move “disability” to WPI 330.31– .37.

Washington's law against discrimination provides that it is an “unfair practice” to:

Citizenship or immigration status. The Legislature added “citizenship or immigration status” to Washington's Law Against Discrimination, effective June 11, 2020. This instruction was revised in 2020 to reflect this statutory change. The statutory amendments further specify that “to the extent that distinction or differential treatment on the basis of citizenship or immigration status is authorized by federal or state law, regulation, or government contract, it is not an unfair practice.” RCW 49.60.020. If there is a dispute as to whether the differential treatment based on citizenship or immigration status is authorized by federal or state law, regulation, or government contract, the parties may need to modify this instruction to include this qualification.

Although the Legislature added as new protected classes both “citizenship” and “immigration status,” whether to include just one or both classes should be determined by the facts at issue.

Age. RCW 49.60.180(2). With the exception of age bias, which is separately prohibited for people 40 years or older, discrimination against these protected groups is also prohibited by RCW 49.60.030, a statutory declaration of civil rights. Age bias is addressed at RCW 49.44.090.

Pregnancy. In Washington, discrimination on the basis of pregnancy is a form of gender discrimination and, therefore, unlawful. See, e.g., WAC 162-30-020; WAC 162-12-140(3)(n); Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 172 P.3d 688 (2007); Kuest v. Regent Assisted Living, Inc., 111 Wn.App. 36, 43 P.3d 23 (2002).

Sexual orientation. The term “sexual orientation” is defined in RCW 49.60.040(26). The statutory definition includes “… heterosexuality, homosexuality, bisexuality, and gender expression or identity.” The term “disability” is defined and codified in RCW 49.60.040(7), as amended in 2007.

Veteran or military status. The term “honorably discharged veteran or military status” is defined in RCW 49.60.040(15) as referring to a person who is:

Under RCW 41.04.007, a veteran is a person who has received an honorable discharge, or received a discharge for medical reasons with an honorable record, or is in receipt of a United States department of defense discharge document DD form 214, NGB form 22, or their equivalent or successor discharge paperwork, that characterizes his or her service as honorable, after having served in certain designated capacities. In a particular case, some of this statutory terminology may need to be incorporated into the jury instructions.

Burden of proof—“substantial factor.” The plaintiff must ultimately prove that the prohibited factor was a “substantial factor” in an employer's adverse employment action. Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014) (the “substantial factor” test, rather than a “determining factor” test, is the appropriate standard for determining whether an employer's adverse employment decision was “because of” one of the prohibited factors enumerated in RCW 49.60.180(2) (citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995))).

In some cases, it may be appropriate to instruct the jury on a “cat's paw,” or subordinate bias, theory regarding proximate cause. Boyd v. State, 187 Wn.App.1, 19–20, 349 P.3d 864 (2015) (approving the instruction, “if a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation”).

Motion practice often deals with shifting productions of evidence and whether a party has met the requisites of a prima facie case. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180–81, 23 P.3d 440 (2001); see also, Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cnty., 189 Wn.2d 516, 526–27, 404 P.3d 464 (2017) (“Because intentional discrimination is difficult to prove, we have adopted the evidentiary burden-shifting scheme announced in McDonnell Douglas.”); Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 571, 459 P.3d 371 (2020).

The jury should not be instructed on burden shifting. See, e.g., Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26 (1993), as amended, 122 Wn. 2d 483, 865 P.2d 507 (1994) (shifting burden rules were never intended as a charge to the jury); Burnside v. Simpson Paper Co., 66 Wn.App. 510, 523, 832 P.2d 537 (1992) (burden of proof formulation was not intended as a prospective jury charge), affirmed, 123 Wn.2d 93, 864 P.2d 937 (1994).

For much the same reason, an instruction or language on pretext is unnecessary. Kastanis, 122 Wn.2d at 495 (“a separate instruction on pretext is unnecessary”). However, Farah v. Hertz Transporting, Inc., 196 Wn.App. 171, 181, 383 P.3d 552 (2016), held that while a pretext instruction “might be appropriate” in cases addressing permissible inferences of discrimination, such an instruction is not required.

Other considerations. Damages are not always an element of the claim, so they are not included as such in this instruction. Under Davis v. Department of Labor and Industries, 94 Wn.2d 119, 615 P.2d 1279 (1980), for example, one might be entitled to a favorable ruling on liability even absent a showing of damages. Beyond this, “[i]f no actual damage is shown [in an RCW Chapter 49.60 case], nominal damages will be presumed.” Lewis v. Doll, 53 Wn.App. 203, 212, 765 P.2d 1341 (1989); see also Browning v. Slenderella Sys. of Seattle, 54 Wn.2d 440, 341 P.2d 859 (1959) (RCW 9.91.010 case).

As indicated in the Note on Use, the pattern instruction was drafted to apply to cases involving an employer's discrete decision to discharge, lay off, not hire, not to promote an employee, or other tangible adverse action. See RCW 49.60.180(2). In addition to these decisions, the statute separately prohibits employers from “discriminat[ing] against any person in compensation or in other terms or conditions of employment” on the basis of the same protected categories. RCW 49.60.180(3). For cases falling under these latter prohibitions, the instruction may need to be modified.

In some cases, jurors may need to be instructed about principles of agency. In Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921 (2001), the court held that individual supervisors, as well as their employers, may be held liable for discriminatory acts.