WPI 330.81 Employment Discrimination—Damages—Economic and Non-Economic—No After-Acquired Eviden...

Do not use if WPI 330.81.01 (Employment Discrimination—Damages—Economic and Non-Economic—After-Acquired Evidence) is being used.

Use the first bracketed phrase when there are undisputed items of damages.

Use the bracketed paragraphs regarding elements of compensatory damages for which there is an evidentiary basis in the case. Do not use the numbers in the instruction; they are set out for discussion purposes. The numbered paragraphs include the most common elements of damages in employment discrimination cases. For guidance as to other damage issues, see WPI 30.05 (Measure of Damages—Elements of Noneconomic Damages—Disability, Disfigurement, and Loss of Enjoyment of Life) through WPI 30.09.02 (Measure of Economic Damages—Elements of Future Damages—Domestic Services/Nonmedical Expenses).

If there is a claim for wage loss, use the instruction with WPI 330.83 (Employment Discrimination—Damages—Mitigation—Wage Loss). If there is an issue regarding the amount of damages for emotional distress attributable to the defendant, it may also be appropriate to give a version of WPI 30.17 (Aggravation of Pre-Existing Condition) or WPI 30.18 (Previous Infirm Condition), and/or WPI 33.02 (Avoidable Consequences—Failure to Secure Treatment).

When there is a claim for future lost wages, using paragraph (2), use this instruction with WPI 330.82 (Employment Discrimination—Damages—Future Lost Earnings (Front Pay)). Practitioners should note that there are offsets against economic damages, including earned income and failure to mitigate. See WPI 330.83 (Employment Discrimination—Damages—Mitigation—Wage Loss), and/or WPI 33.03 (Avoidable Consequences—Property or Business), or WPI 303.06 (Contract—Mitigation of Damages) for instructions on mitigation.

For a definition of proximate cause, use WPI 15.01 (Proximate Cause—Definition) or WPI 15.01.01 (Proximate Cause—Definition—Alternative).

This instruction is based upon RCW Chapter 49.60, WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence), and numerous cases more specifically analyzing damage issues.

As in a typical personal injury case, the burden of proving damages rests with the plaintiff. In employment cases, plaintiffs are entitled to recover for personal injuries for emotional distress, humiliation, and pain and suffering. Cagle v. Burns and Roe, Inc., 106 Wn.2d 911, 726 P.2d 434 (1986); Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 708 P.2d 393 (1985). Plaintiffs must also prove economic damages.

A plaintiff may recover damages for emotional distress so long as he or she presents evidence sufficient to support a damages award. Bunch v. King Cnty. Dep't of Youth Servs., 155 Wn.2d 165, 116 P.3d 381 (2005). Plaintiff must produce “evidence of anguish and distress.” Bunch, 155 Wn.2d at 181. The plaintiff need only produce “sufficient evidence to convince an ‘unprejudiced, thinking mind’ of his anguish.” Bunch, 155 Wn.2d at 181. Such evidence can be provided by the plaintiff's own testimony; evidence from a health care professional is not required to prove emotional distress. Bunch, 55 Wn.2d at 181. Corroboration is helpful, but the jury is the ultimate decision maker. Bunch, 155 Wn.2d at 181.

In some cases a plaintiff may recover damages for injuries sustained outside the limitations period. Adopting the reasoning in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Washington Supreme Courtheld that in a hostile work environment claim, an employer may be liable for acts of harassment which occurred outside the three-year statute of limitations so long as one or more acts of harassment occurred within the limitations period. Antonius v. King Cnty., 153 Wn.2d 256, 258–59, 103 P.3d 729 (2005). It is the court's responsibility to determine whether acts “are part of the same actionable hostile work environment.” Antonius, 153 Wn.2d at 271.

Under RCW Chapter 49.60, damages might be taxable income to the plaintiff. A plaintiff may recover an offset for the federal income tax consequences of a damages award under RCW 49.60.030(2). Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 217–18, 87 P.3d 757 (2004) (the offset is recoverable under RCW 49.60.030(2)'s “other appropriate remedy” language rather than as actual damages).

Disability benefits are not offset against wage loss if the disability benefits are a fringe benefit. Xieng v. Peoples Nat'l Bank of Wash., 120 Wn.2d 512, 844 P.2d 389 (1993). Disability benefits may be an offset against past and future wage loss when used as an indemnification by the employer against future liability. Xieng, 120 Wn.2d at 525–26.

Unemployment compensation and workers' compensationbenefits are not an offset against an award of damages for economic loss, because they come from a collateral source. Hayes v. Trulock, 51 Wn.App. 795, 803–04, 755 P.2d 830 (1988); Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 799–800, 953 P.2d 800 (1998).

An employer's immunity under RCW Title 51, the workers' compensation statutes, does not preclude a claim for damages under RCW Chapter 49.60 for physical injuries and emotional harm. Goodman v. Boeing Co., 127 Wn.2d 401, 899 P.2d 1265 (1995). There may be offsets of or subrogation to workers' compensation benefits. See Goodman, 127 Wn.2d 401; Reese v. Sears Roebuck & Co., 107 Wn.2d 563, 731 P.2d 497 (1987), overruled on other grounds by Phillips v. City of Seattle, 111 Wn.2d 903, 766 P.2d 1099 (1989).

An employee who successfully proves a violation of RCW 49.60.180(3) has a claim for damages under this statute. The employee is not required to prove a separate claim that he or she was discharged or constructively discharged in order to seek damages for front and back pay. Martini v. Boeing Co., 137 Wn.2d 357, 363–64, 367–69, 370–72, 971 P.2d 45 (1999); RCW 49.60.030(2).

See also Weil v. Citizens Telecom Servs. Co., 2019 WL 5862965 (W.D. Wash. Nov. 8, 2019) (noting recovery of back pay or front pay by an employee who succeeds on the merits of their WLAD and Title VII discrimination claims may be limited where the employee would have been subsequently terminated for lawful or non-discriminatory reasons).