WPI 330.49 Employment Discrimination—Retaliation Related to Pregnancy Accommodation
6A WAPRAC WPI 330.49Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.49 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.49 Employment Discrimination—Retaliation Related to Pregnancy Accommodation
It is unlawful for an employer to retaliate by
(A) Taking adverse action against an employee who requests, declines, or uses an accommodation that affects the terms, conditions, or privileges of employment; or
(B) Denying employment opportunities to an otherwise qualified employee if such denial is based on the employer's need to make reasonable accommodation.
To establish a claim of unlawful retaliation by(name of employer), (name of plaintiff)has the burden of proving both of the following:
(1) [That(name of employer)took adverse action against(name of plaintiff)] [That(name of employer)denied employment opportunities to(name of employee)who was an otherwise qualified employee]; and
(2) That a substantial factor in the decision to [discipline] [demote] [deny the promotion] [terminate] [deny employment opportunities to] was(name of plaintiff)[requesting, declining, or using an accommodation] [the employer's need to make reasonable accommodation].
If you find from your consideration of all of the evidence that both of these propositions have 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 [requesting, declining, or using an accommodation] [the employer's need to make reasonable accommodation] [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] [denied employment opportunities] but for [his] [her] [opposition] [participation].
NOTE ON USE
Use the bracketed phrases as appropriate. If supported by the evidence, it may be appropriate to substitute other allegedly retaliatory acts.
Use this instruction with WPI 330.06 (Employment Discrimination—Retaliation—Adverse Employment Action—Definition). If the alleged retaliation is for opposition or participation activity, use instruction WPI 330.05 (Employment Discrimination—Retaliation).
COMMENT
This instruction is new for this edition.
The elements are based upon on a new statute, RCW 43.10.005, which creates protections for employees regarding pregnancy and pregnancy-related reasonable accommodations.
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 v. State, 187 Wn.App. 1, 11–12, 349 P.3d 864 (2015) (citing Estevez v. Faculty 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”).
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 Northern & 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).
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 v. Housing Auth., 118 Wn.2d 79, 821 P.2d 34 (1991). 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.]
Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |