The Washington Court of Appeals recently determined that state anti-discrimination laws prohibit retaliation against human resources and legal professionals who oppose discrimination as part of their normal job duties. The court also declined to extend the same actor inference, a defense against discrimination claims, to retaliation claims.
Lodis worked at Corbis Holdings as a vice president of human resources. As part of his normal job duties, he warned Corbis’s CEO, Shenk, that Shenk’s age-related comments could give rise to liability for age discrimination. Around the same time, Shenk promoted Lodis but almost immediately gave him a negative performance review, placed him on probation, and then ultimately fired him.
Lodis sued under the Washington Law Against Discrimination (WLAD), claiming that Corbis retaliated against him for opposing Shenk’s comments. The trial court concluded that Lodis was not engaged in protected activity “because he was simply performing his job duties by warning Shenk” about potential discrimination. The court of appeals disagreed.
Step Outside Rule
Corbis urged the court to adopt the “step outside” rule, which governs federal cases under the Fair Labor Standards Act (FLSA). The rule requires an employee to step outside her normal job duties before receiving the FLSA’s protection against retaliation.
The court declined to adopt the rule for two reasons. First, the court believed that the language of the WLAD could not support a step outside rule. Second, the court concluded that policy considerations favored rejecting the rule. “[A]dopting the step outside rule,” the court said, “would strip human resources, management, and legal employees of WLAD protection.” The court noted the importance of protecting these employees because they are often the most able to oppose workplace discrimination.
Same Actor Inference
Corbis also argued that the court should apply the same actor inference to dismiss Lodis's retaliation claim. The same actor inference arises when an employee is both hired and fired by the same decision-makers in a short period of time. Courts may then infer that the employee was not fired for any attribute that the decision-makers were aware of when they hired her. Corbis contended that Shenk promoting Lodis despite the warning about potential discrimination proved that he did not retaliate when he later fired Lodis.
The court, however, refused to extend the same actor inference to retaliation claims. The court was concerned that extending the defense would allow employers to simply promote employees before terminating them to avoid valid retaliation claims.
Thus, Lodis v. Corbis Holdings, Inc. limits the same actor defense to traditional discrimination cases. And perhaps more importantly, the case reaffirms that the WLAD protects all employees from retaliation.
On September 13, the Washington Supreme Court held that a 2006 amendment to the Washington Law Against Discrimination, which makes it illegal for employers to discriminate on the basis of sexual orientation, does not apply retroactively. But the Court also held that evidence of pre-amendment harassment is admissible to show why post-amendment conduct is discriminatory.
Loeffelholz, a lesbian, sued the University of Washington in 2009, alleging that Lukehart, her supervisor, harassed her from 2003 to 2006 because of her sexual orientation. She claimed that Lukehart’s conduct had created a hostile work environment. She alleged only one incident, however, that occurred after the effective date of the 2006 amendment, and that incident was not explicitly related to her sexual orientation. The trial court dismissed her claim, stating that Lukehart’s post-amendment conduct was insufficient to support a hostile work environment claim. The court of appeals reversed, and the Supreme Court affirmed in part.
The Supreme Court first determined that the 2006 amendment applies only prospectively. Thus, Loeffelholz was not entitled to recover for Lukehart’s actions before the amendment’s effective date. The Supreme Court held, however, that evidence of Lukehart’s pre-amendment conduct was admissible as context to prove that his post-amendment behavior was discriminatory. The only explicit comments Lukehart made regarding Loeffelholz’s sexual orientation, asking if she was gay and telling her not to “flaunt it,” occurred when she started working in 2003. The Court further held that if Loeffelholz prevailed in her post-amendment hostile work environment claim, she would be entitled to damages from the effective date of the amendment, not just from the date of Lukehart’s post-amendment conduct.
Thus, while Loeffelholz v. University of Washington precludes recovery for sexual orientation discrimination occurring before the amendment, it does allow employees to bolster sexual orientation discrimination claims with evidence of pre-amendment conduct.
In Short v. Battle Ground School District, Division II of the Washington Court of Appeals held last week that Washington’s Law Against Discrimination, which makes it unlawful for employers to discharge employees because of creed, does not require employers to accommodate employees’ religious beliefs.
Julie Short, a devout Christian, was employed as an assistant to the superintendent of the Battle Ground School District. Ms. Short alleged that the superintendent demanded that she to lie to a colleague about the existence of a meeting, even after she informed the superintendent that lying was contrary to her religious beliefs. After quitting her job, Ms. Short filed a lawsuit. One of the claims she brought was for failure to accommodate her religious beliefs. The trial court dismissed Ms. Short’s claim on summary judgment.
The Court of Appeals affirmed. It acknowledged that such a claim exists under federal law, as Title VII expressly imposes an affirmative duty on employers to accommodate their employees’ religious beliefs and practices. Washington’s Law Against Discrimination, however, pre-dates Title VII and does not contain similar language. The Court of Appeals declined to read a duty to accommodate religious beliefs into the statute without any indication from the legislature or the Washington Human Rights Commission that such a duty was intended.
While the Short case is a victory for employers, the question of whether Washington’s Law Against Discrimination requires employers to accommodate their employees’ religious beliefs will not be resolved definitively unless and until the Washington Supreme Court takes up the issue. It declined to do so in Hiatt v. Walker Chevrolet Co., a case decided almost 20 years ago, and has not readdressed the issue since. In Hiatt, the Court recognized that Washington’s Law Against Discrimination did not expressly provide for a failure-to-accommodate claim but noted that it might implicitly require such accommodation. The Court declined to address the issue without more briefing, stating that it was an “important and complex question” that could have “constitutional implications.”
It is also well-settled that Title VII requires employers with 15 or more employees to reasonably accommodate their employees’ religious beliefs and practices, unless to do so would create an undue hardship upon the employer.
The Ninth Circuit Court of Appeals earlier this week certified a question to the Washington Supreme Court, seeking that court's help in defining "disability" under the Washington Law Against Discrimination (WLAD).
Two years ago, in McClarty v. Totem Electric, 137 P.3d 844 (2006), the Washington Supreme Court significantly narrowed the definition of "disability" under the WLAD. In 2007, the Washington Legislature passed a law codifying the broader, pre-McClarty definition of disability, and explicitly stated that definition would apply retroactively.
This week, in Moore v. King County, the Ninth Circuit certified to the Washington Supreme Court the question of whether the retroactive application of the 2007 law is lawful under the separation of powers doctrine in the Washington Constitution, where the cause of action arose prior to the McClarty decision.
This case is of interest to Washington employers with pending disability claims under the WLAD. It will be a significant win for Washington employers if the Washington Supreme Court answers that the retroactive application is unlawful, as any WLAD disability cases arising before July 6, 2007 (the effective date of the new definition of "disability"), will be decided under the narrower McClarty definition of disability.