WPI 330.21 Employment Discrimination—Workplace Harassment—General

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.

Use this instruction 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).

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

For a claim of sex discrimination other than sexual harassment, use 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 rules against workplace harassment under RCW Chapter 49.60 were developed primarily in sexual harassment cases. RCW 49.60.180(3) provides that it is an unfair practice for any employer to discriminate in terms or conditions of employment, which applies equally to harassment on the basis of gender, sexual orientation, race, age, religion, national origin, military status, disability, marital status, and the use of a dog guide or service animal, as well as actual or perceived HIV infection. See RCW 49.60.174; Robel v. Roundup Corp., 148 Wn.2d 35, 43, 59 P.3d 611 (2002); Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 404, 693 P.2d 708 (1985).

Washington has historically recognized two types of prohibited harassment under RCW Chapter 49.60: hostile work environment and quid pro quo harassment claims. See, e.g., DeWater v. State, 130 Wn.2d 128, 134, 921 P.2d 1059 (1996). Federal cases have questioned the utility of the distinction, tending to focus instead on whether a “tangible employment action” (as opposed to some other sort of change in the “terms and conditions” of employment) resulted from the harassment. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752–54, 765–66, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). However, Washington cases continue to distinguish between hostile work environment and quid pro quo harassment claims. See Antonius v. King Cnty., 153 Wn.2d 256, 261, 103 P.3d 729 (2005); Washington v. Boeing Co., 105 Wn.App. 1, 9–10, 19 P.3d 1041 (2000); Henningsen v. Worldcom, Inc., 102 Wn.App. 828, 835–37, 9 P.3d 948 (2000).

Because of the nature of quid pro quo claims, they are likely to arise only in sex discrimination cases. But hostile work environment claims have been recognized in cases alleging discrimination on the basis of sex (Glasgow, 103 Wn.2d at 405–07), disability (Robel, 148 Wn.2d at 43–45), and race (Washington, 105 Wn.App. at 12–13; Fisher v. Tacoma Sch. Dist., 53 Wn.App. 591, 595, 769 P.2d 318 (1989)).

For a discussion of the protected categories for honorably discharged veteran status and military status, see the Comment to WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof).