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WPI330.01Employment Discrimination—Disparate Treatment—Burden of Proof

6A WAPRAC WPI 330.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.01 Employment Discrimination—Disparate Treatment—Burden of Proof
Discrimination in employment on the basis of [age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [sexual orientation] [honorably discharged veteran status] [military status] is prohibited.
To establish [his] [her] “disparate treatment claim,”(name of plaintiff)has the burden of proving each of the following propositions:
(1) That(name of defendant)took an adverse employment action against(name of plaintiff); and
(2) That(name of plaintiff's)[age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [sexual orientation] [honorably discharged veteran status] [military status] was a substantial factor in(name of defendant's)decision to take the adverse action.
If you find from your consideration of all the evidence that both of these propositions have been proved, your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if either of the propositions has not been proved, your verdict should be for(name of defendant)[on this claim].
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—Business Necessity—Definition) instead of this instruction.
For workplace harassment cases, use this instruction with WPI 330.21 (Workplace Harassment—General) and, depending on the theory of the case, WPI 330.22 (Sexual Harassment—Quid Pro Quo—Burden of Proof) or WPI 330.23 (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.
For disability discrimination cases, do not use this instruction. Instead, use WPI 330.32 (Disability Discrimination—Treatment—Burden of Proof), et seq.
In a retaliation case, use WPI 330.05 (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.
Washington's law against discrimination provides that it is an “unfair practice” to:
discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a traineddog guide or service animal by a person with a disability.
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.
In Washington, discrimination on the basis of pregnancy is a form of gender discrimination and, therefore, unlawful. See, e.g., WAC 162-30-020; 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).
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, as amended in 2007.
The term “honorably discharged veteran or military status” is defined in RCW 49.60.040(15) as referring to a person who is:
  • (a) A veteran, as defined in RCW 41.04.007; or
  • (b) An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.
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.
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), citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995) (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)).
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) and Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180–81, 23 P.3d 440 (2001). The jury should not be instructed on burden shifting. See, e.g., Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993), as amended, 122 Wash. 2d 483, 865 P.2d 507 (1994) (shifting burden rules were never intended as a charge to the jury); and 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 inappropriate. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 495, 859 P.2d 26 (1993), as amended 865 P.2d 507 (1994) (“a separate instruction on pretext is unnecessary”). However, Farah v. Hertz Transporting, Inc., 196 Wn.App. 171, 181, 383 P.3d 552, 558 (2016), review denied 187 Wn.2d 1023 (2017), held that while a pretext instruction “might be appropriate” in cases addressing permissible inferences of discrimination, such an instruction is not required.
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 System 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.
[Current as of September 2018.]
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