WPI 330.05 Employment Discrimination—Retaliation
6A WAPRAC WPI 330.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.05 Employment Discrimination—Retaliation
It is unlawful for an employer to retaliate against a person for
[opposing what the person reasonably believed to be discrimination on the basis of [(describe protected status)] [and] [or] [providing information to or participating in a proceeding to determine whether discrimination or retaliation occurred].
To establish a claim of unlawful retaliation by(name of employer), (name of plaintiff)has the burden of proving both of the following propositions:
(1) That(name of plaintiff)[was opposing what [he] [she] reasonably believed to be discrimination on the basis of [(describe protected status)] [or] [was [providing information to] [participating in] a proceeding to determine whether discrimination or retaliation had occurred]; and
(2) That a substantial factor in the decision to [discipline] [demote] [deny the promotion] [terminate] [not hire] was(name of plaintiff)'s [opposing what [he] [she] reasonably believed to be discrimination or retaliation] [or] [[providing information to] [participating in] a proceeding to determine whether discrimination or retaliation had occurred].
If you find from your consideration of all of the evidence that both of these propositions has been proved, then your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if any one of these propositions has not been proved, your verdict should be for(name of defendant)[on this claim].
(Name of plaintiff)does not have to prove that [his] [her] [opposition] [participation in the proceeding] [was] [were] the only factor or the main factor in(name of defendant's)decision, nor does(name of plaintiff)have to prove that [he] [she] would not have been [disciplined] [demoted] [denied the promotion] [terminated] but for [his] [her] [opposition] [participation].
NOTE ON USE
Select or insert words or phrases and protected status as appropriate. Protected status may include but is not limited to age, creed, disability, marital status, national origin, race, religion, gender, sexual orientation, honorably discharged veteran status, military status, citizenship or immigration status, or use of a service animal by a person with a disability. RCW 49.60.020. Although the vast majority of cases are employment related, if the claim is not (i.e. against a union under RCW 49.60.190), then “employment” should not be used.
It may be appropriate to substitute other allegedly retaliatory acts in proposition (2). Also, this instruction may need to be modified if the retaliation involves the failure to hire.
When there is an issue about whether the action taken is sufficiently adverse, the definition of adverse action under WPI 330.06 (Employment Discrimination—Retaliation—Adverse Employment Action—Definition) is to be used along with this instruction. This instruction may need to be modified to instruct the jury regarding the nature of the adverse action taken and in dispute.
Use this instruction instead of WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof) or WPI 330.02 (Employment Discrimination—Disparate Impact—Definition).
This instruction is not designed for use in a statutory “whistleblower” case pursuant to RCW Chapter 42.40.
For a discussion of honorably discharged veteran status and military status, see the Comment to WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof).
This instruction has been modified for this edition to allow for any type of protected status to be added to the instruction. This was done for purposes of simplifying the instruction. The parties can modify this instruction to suit the particular facts of the case at issue.
The elements of a retaliation claim are based upon RCW 49.60.210(1); Allison v. Hous. Auth., 118 Wn.2d 79, 821 P.2d 34 (1991); Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 366 P.3d 1246 (2015) (“Lodis II”); Boyd v. State, 187 Wn.App. 1, 349 P.3d 864 (2015); Lodis v. Corbis Holdings, Inc., 172 Wn.App. 835, 292 P.2d 779 (2013) (“Lodis I”); Milligan v. Thompson, 110 Wn.App. 628, 42 P.3d 418 (2002); Francom v. Costco Wholesale Corp., 98 Wn.App. 845, 991 P.2d 1182 (2000). The Washington Supreme Court has recognized that RCW 49.60.210(1) creates a cause of action for job applicants who claim a prospective employer refused to hire them 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).
An adverse employment action will support an award of damages when “(1) [the employee] engaged in a statutorily protected activity, (2) the employer took an adverse employment action against the employee, and (3) there is a causal connection between the employee's activity and the employer's adverse action.” Boyd, 187 Wn.App. at 11–12 (citing Estevez v. Fac. Club of Univ. of Wash., 129 Wn.App. 774, 120 P.3d 579 (2005)); see also Davis v. West One Auto. Grp., 140 Wn.App. 449, 166 P.3d 807 (2007); Coville v. Cobarc Servs., Inc., 73 Wn.App. 433, 869 P.2d 1103 (1994) (adding the term “opposition”).
In Lodis v. Corbis Holdings, Inc., 172 Wn.App. 835, 292 P.3d 779 (Lodis I), the court held that a human resource director did not need to “step outside” his ordinary job duties in order to oppose alleged discrimination by the company's CEO. The court declined to follow federal precedent holding that human resource professionals doing their jobs were not engaged in protected oppositional activity. The Washington Law Against Discrimination's (WLAD) protections against retaliation extend beyond employees to independent contractors. Currier v. Northland Servs., Inc., 182 Wn.App. 733, 332 P.3d 1006 (2014).
Protected activity. The employee must oppose “practices forbidden by this chapter,” i.e., the law against discrimination, and opposition to a practice not forbidden by the statute is not protected activity. Coville, 73 Wn.App. at 440. RCW 49.60.210(2) makes it unlawful for a government agency or government manager or supervisor to retaliate against a “whistleblower” as defined in RCW Chapter 42.40, however, unless the retaliation is for complaining of discrimination. The elements of a statutory “whistleblower” claim differ from those under RCW 49.60.210(1), and a different instruction should be used.
In Ellis v. City of Seattle, 142 Wn.2d 450, 13 P.3d 1065 (2000), the court held that to establish a RCW Chapter 49.60 claim of retaliation, the employee need only show he/she reasonably believed there was discrimination and complained about it, and need not prove actual discrimination.
Adverse employment action. Adverse employment actions involve a change in employment that is more than an inconvenience or alteration of one's job responsibilities. Boyd, 187 Wn.App. 1. The distinction between an adverse employment action and a mere “inconvenience” or “alterations of one's job responsibilities” is not a bright line. See Alonso v. Qwest Commc'ns Co., LLC, 178 Wn.App. 734, 747, 315 P.3d 610 (2013) (whether loss of certain van and cellular phone benefits constituted adverse employment action is an issue of fact for the jury). Adverse employment actions may include: failure to promote, Davis v. Dep't of Lab. & Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980); reduction of pay, Kirby v. City of Tacoma, 124 Wn.App. 454, 98 P.3d 827 (2004); demotion or transfer, Robel v. Roundup Corp., 148 Wn.2d 35, 59 P.3d 611 (2002); and poor performance rating preventing rehiring, Cornwell v. Microsoft Corp., 192 Wn.2d 403, 430 P.3d 229 (2018).
An adverse employment action is one that would “dissuad[e] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). See the Note on Use for WPI 330.06 (Employment Discrimination—Retaliation—Adverse Employment Action—Definition).
One federal district court applying WLAD concluded Washington appellate courts would likely recognize a retaliatory hostile work environment claim. Trizuto v. Bellevue Police Dep't, 983 F.Supp.2d 1277 (W.D. Wash. 2013).
Substantial factor. An individual asserting a claim under this provision must prove a retaliatory motive was a “substantial factor” in the challenged decision, but need not prove it was the only factor or a “determining factor.” Allison, 118 Wn.2d 79. Complaints about the conduct of a supervisor that do not allege discrimination are insufficient to impute knowledge of protected opposition to employer. Graves v. Dep't of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994) (citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991)).
[Current as of November 2020.]
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