Ada Ko Wong 

The WLAD (RCW 49.60.180) prohibits discrimination based on “age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.”  RCW 49.60.180. 

 

In the employment context, it bars any employer, union, or employment agency from refusing to hire any person, discharging or barring any person from employment, discriminating against any person in compensation or other terms or conditions of employment, or making pre-employment statements or inquires that tend to discriminate on the basis of the above classification.  RCW 49.60 et seq. 

 

Who is considered an “employer”?  For purposes of the WLAD, an employer is defined to include “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons.”  RCW 49.60.040(11).  Employers with less than 8 employees are exempt from the WLAD. 

 

How are the numbers of employees determined?  It is determined by the names on the employer’s payroll for the period covering the pertinent dates.  This means that if you think you have a cause of action for a violation of the WLAD, the relevant period of time in determining the numbers of employees is when the violation happened. 

 

 

Disability

 

Under the WLAD, a prima facie case of disparate treatment based on disability requires that the employee show (1) he has a disability; (2) he suffered an adverse employment action; (3) he was doing satisfactory work; and (4) he was treated differently than someone not a member of the protected class. 

 

The WLAD also imposes the duty on employers of disabled employees to provide reasonable accommodation.  To establish a prima facie case of failure to accommodate, the employee must show that (1) he had a sensory, mental, or physical abnormality that substantially limited his ability to perform the job duties; (2) he was qualified to perform the essential functions of the job with or without reasonable accommodation or was qualified to fill vacant positions; (3) he gave the employer notice of his disability and limitations; and (4) that upon notice, the employer failed to reasonably accommodate him. 

 

What is considered a “disability”?  The WLAD defines disability as: “the presence of a sensory, mental, or physical impairment that:  (i) Is medically cognizable or diagnosable; or (ii) Exists as a record or history; or (iii) Is perceived to exist whether or not it exists in fact.”  RCW 49.60.040(7)(a). 

 

What is considered an “impairment”?  The WLAD defines impairment as:  “(i) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitor-urinary, hemic and lymphatic, skin, and endocrine; or (ii) Any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”  RCW 49.60.040(7)(b)-(c). 

 

 

Hostile Work Environment

 

The WLAD (as well as the ADA) also recognize a disability-based hostile work environment claim.  In order to establish a disability-based hostile work environment claim, a plaintiff must prove (1) that he or she was disabled within the meaning of the antidiscrimination statute; (2) that the harassment was unwelcome; (3) that it was because of the disability; (4) that it affected the terms and conditions of the employment; and (5) that it was imputable to the employer.

 

 

Age Discrimination

 

The WLAD essentially limits age discrimination to those who are 40 years or older.  RCW 49.60.205.  State claims may be brought under disparate treatment or disparate impact theories.  The WLAD requires that age was a “substantial factor” in the adverse employment action (which is different from the ADEA where the standard is “but for”). 

 

What does an employee have to prove?  (1) He is over 40 years of age; (2) was performing satisfactorily; and (3) suffered an adverse employment action. 

 

 

Race Discrimination

 

An employer cannot discriminate against a person in terms or conditions of employment because of race.  RCW 49.60.180(2), (3).  The employee must show that race was a substantial factor in the employer’s decision to adversely affect his terms or conditions of employment. 

 

The employee must show that (1) he was within a protected group, (2) he suffered an adverse employment action, (3) he was doing satisfactory work, and (4) he was treated differently than an employee outside the protected group. 

 

Retaliation

 

If an employee opposes a practice forbidden by the WLAD, the anti-retaliation provision of the WLAD may come into play.  RCW 49.60.210.  The important thing to know here is that it is sufficient that the employee had an objectively reasonable belief that the practice he opposed violates the WLAD—whether or not it is later determined that the practice actually does violate the statute is not the standard. 

 

Disparate treatment is probably the more common discrimination claim basis.  It usually occurs when an employer treats an employee who is a member of a protected class less favorably than other employees.  However, it must be that that the employee’s membership of a protected class was a substantial factor in the employer’s adverse decision and/or actions. 

 

These types of cases are generally hard to prove as it is unlikely that an employer is going to straight out say, “I don’t like you because you are old/African-American/etc.”  But this is not to say that an employee does not have a case without this type of direct evidence.  Many times, an employee can show that other members of the protected class receive similar negative treatment while non-members of the protected class receive more favorable treatment.

 

Unlawful discrimination: To establish a prima facie case of unlawful discrimination in a failure to hire or promote context, the employee will have to show that: (1) he is a member of a protected class, (2) he applied for a job for which the employer was seeking applicants, (3) he was qualified for a job, and (4) the employer awarded the position to someone who is not a member of the protected class.

Discharge/Termination: To establish a prima facie case in the discharge or termination context, the employee will have to show that: (1) he is a member of a protected class, (2) he was discharged, (3) he was performing satisfactorily, and (4) the employer replaced the employee with another person who is not a member of the protected class. 

 

*Note that all elements may depend on the circumstances.