WPI 330.23 Employment Discrimination—Workplace Harassment—Hostile Work Environment—Burden of Pr...

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 330.21 (Employment Discrimination—Workplace Harassment—General) in a “hostile work environment” harassment case.

When the harassment is alleged to be on the basis of age, add the following proposition: “That the plaintiff was 40 years of age or older.” See RCW 49.60.205 and RCW 49.44.090.

When the harassment is alleged to be on the basis of disability, add the following proposition: “That the plaintiff had a disability.” See Robel v. Roundup Corp., 148 Wn.2d 35, 45, 59 P.3d 611 (2002). “Disability” should be defined using WPI 330.31 (Employment Discrimination—Disability Discrimination—Definition of Disability).

When the harassment is alleged to be on the basis of actual or perceived HIV infection, or actual or perceived hepatitis C infection, add the following proposition: “That plaintiff had an actual or perceived HIV (or hepatitis C) infection.” See RCW 49.60.174(1). No such additional proposition is necessary for harassment alleged to be on the basis of race, sex, religion, creed, national origin, or marital status.

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).

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

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.

This instruction is based on RCW 49.60.180, Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 693 P.2d 708 (1985), and Robel v. Roundup Corp., 148 Wn.2d 35, 59 P.3d 611 (2002). It applies to workplace harassment generally. See discussion in the Comment to WPI 330.21 (Employment Discrimination—Workplace Harassment—General).

The first requirement of a workplace harassment claim, as Glasgow explains, is that “the conduct complained of must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as unwelcome.” Glasgow, 103 Wn.2d at 406.

Second, the employee must prove the conduct was because of plaintiff's membership in a protected class. For example, if the protected class is gender, the plaintiff must prove that the conduct would not have occurred had the employee been of a different sex. Schonauer v. DCR Ent., Inc., 79 Wn.App. 808, 820, 905 P.2d 392 (1995) (citing Glasgow). In such a case, gender must be the “motivating factor” for the conduct. Payne v. Children's Home Soc. of Wash., Inc., 77 Wn.App. 507, 513, 892 P.2d 1102 (1995); Coville v. Cobarc Servs., Inc., 73 Wn.App. 433, 869 P.2d 1103 (1994). As long as the conduct is “because of sex,” it need not be “sexual in nature” or “involve sexual advances, innuendo, or physical conduct to be actionable.” Payne, 77 Wn.App. at 512–13. Same-sex harassment is illegal when it is “because of sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (Title VII case).

Similarly, if the harassment is based on membership in another protected class such as disability, the conduct or language “directly or proximately related to” a disability is “because of” a disability. Robel, 148 Wn.2d at 45–46.

Third, the employee must prove the conduct affected his or her terms or conditions of employment. Conduct affects the terms or conditions of employment “if it is ‘sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.’” Glasgow, 103 Wn.2d at 406. Whether conduct meets this test depends on the “totality of the circumstances,” Glasgow, 103 Wn.2d at 407, “including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating or merely an offensive utterance, and whether it unreasonably interfered with the employee's work performance.” Davis v. Fred's Applicance, Inc., 171 Wn.App. 348, 362, 287 P.3d 51 (2012); Schonauer, 79 Wn.App. at 820–21 (quoting Harris v. Forklift Sys., 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); Graves v. Dep't of Game, 76 Wn.App. 705, 887 P.2d 424 (1994) (conduct insufficiently pervasive or abusive to affect emotional or psychological wellbeing of employee).

See also Arthur v. Whitman Cnty., 24 F.Supp.3d 1024 (E.D. Wash. 2014) (a hostile work environment claim may be composed of a series of separate acts that collectively constitute one unlawful employment practice); Trizuto v. Bellevue Police Dep't, 983 F.Supp.2d 1277 (W.D. Wash. 2013); Blackburn v. Dep't of Soc. & Health Servs., 186 Wn.2d 250, 375 P.3d 1076 (2016) (a single weekend staffing decision based on race is not sufficiently severe or pervasive); Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 793, 120 P.3d 579 (2005).

Fourth, to establish employer liability:

Schonauer, 79 Wn.App. at 821 (quoting Glasgow, 103 Wn.2d at 407). Cf. Thompson v. Berta Enters. Inc., 72 Wn.App. 531, 864 P.2d 983 (1994) (insufficient evidence employer knew or should have known).

Washington cases appear to use the terms supervisor or manager interchangeably. In Davis v. Fred's Appliance, Inc., 171 Wn.App. 348, 362–63, 287 P.3d 51 (2012), the court injected a new term of “alter ego” to automatically impute liability to the employer. The distinction between the various labels is unclear. See the Comment to WPI 330.24 (Employment Discrimination—Harassment—Hostile Work Environment—“Manager” and “Management”—Definitions).

Finally, note that the distinction between quid pro quo and hostile work environment sexual harassment may not be precise, especially if implicit quid pro quo harassment is alleged. See Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994).

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).