WPI 330.01.02 Employment Discrimination—Disparate Treatment—Adverse Employment Action—Definitio...

Use with WPI 330.01 (Employment Discrimination—General—Disparate Treatment—Burden of Proof) when there is an issue of fact whether the employer's action was significant enough to constitute an adverse employment action.

If both disparate treatment and retaliation are involved, combine the instruction with WPI 330.05 (Employment Discrimination—Retaliation) and WPI 330.06 (Employment Discrimination—Retaliation—Adverse Employment Action—Definition) to differentiate adverse employment action in disparate treatment claims from adverse employment action in retaliation claims as there are separate definitions for each.

An adverse employment action has long been understood to include a firing or demotion, and a failure to hire or promote. Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980). There will generally be no dispute in such cases. A hostile work environment may amount to an adverse employment action. Robel v. Roundup Corp., 148 Wn.2d 35, 59 P.3d 611 (2002) (verbal and non-verbal harassment based on disability); Harrell v. Dep't of Soc. & Health Servs., 170 Wn.App. 386, 398, 285 P.3d 159 (2012). A broad array of other actions may either singularly or taken together constitute an adverse action, including reassignment with significantly different responsibilities, a decision causing a significant change in benefits, or a poor performance rating preventing rehiring. Boyd v. State, 187 Wn.App.1, 11–12, 349 P.3d 864 (2015); Marin v. King Cnty., 194 Wn.App. 795, 808, 378 P.3d 203 (2016); Cornwell v. Microsoft Corp., 192 Wn.2d 403, 430 P.3d 229 (2018).

An action must involve a change in employment that is more than an inconvenience or alteration of one's job responsibilities. Boyd, 187 Wn.App. at 11–12; Kirby v. City of Tacoma, 124 Wn.App. 454, 98 P.3d 827 (2004). However, 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 an issue of fact for the jury); Davis v. W. One Auto Grp., 140 Wn.App. 449, 166 P.3d 807 (2007) (failure to give plaintiff same recognition as employee of the month, such as posting his picture or letting him drive the car of his choice, was sufficient to state a claim).

Illustrating the fact-specific nature of the inquiry is Blackburn v. Department of Social & Health Services, 186 Wn.2d 250, 375 P.3d 1076 (2016), which involved a decision not to schedule African-American staff on a single weekend because of a Western State Hospital resident's violent racist conduct. Reversing the trial court, the Washington Supreme Court held that the employer's staffing decision for a single weekend constituted disparate treatment “in the terms and conditions of employment.” However, the Supreme Court affirmed the holding that the single weekend decision was not severe and pervasive enough to constitute a hostile environment, therefore affirming the dismissal of that claim.