Employment Law Daily Washington law prohibits retaliation against job applicants by prospective employers
Wednesday, November 15, 2017

Washington law prohibits retaliation against job applicants by prospective employers

By Kathleen Kapusta, J.D.

Observing that very few of its opinions have discussed whether RCW 49.60.210(1) prohibits retaliatory discrimination against job applicants by prospective employers, and no other Washington court has considered the issue, an en banc Washington Supreme Court, answering a certified question, held that in accordance with the plain language of the Washington Law Against Discrimination, chapter 49.60 RCW, such retaliatory discrimination is prohibited. Therefore, a plaintiff who claimed a prospective employer refused to hire him because he opposed his former employer’s race discrimination stated a valid cause of action (Zhu v. North Central Education Service District – ESD 171, November 9, 2017, Yu, M.).

Four years after he was hired by Waterville School District as a math teacher, the plaintiff, a U.S. citizen who emigrated from China just two years earlier, was issued notice of probable cause for discharge. He appealed and a hearing officer found no probable cause and restored him to his position. He then sued Waterville in federal court, asserting claims of race discrimination. After the district court denied Waterville’s motion for summary judgment, the parties settled and the plaintiff resigned.

Rejected. Three months later, he applied for a job with ESD 171, an educational service district that provides cooperative and informational services to local school districts, including Waterville. It was undisputed that members of ESD’s hiring committee were aware of the plaintiff’s lawsuit against Waterville. When ESD did not hire him for the position, he sued in federal court, alleging that it refused to hire him in retaliation for his prior lawsuit against Waterville, thereby violating WLAD’s antiretaliation statute, RCW 49.60.210(1), as well as other state and federal laws.

Procedural background. After denying summary judgment against his WLAD antiretaliation claim, the court denied ESD’s motion for reconsideration, in which it argued that RCW 49.60.210(1) does not prohibit retaliatory discrimination against job applicants by prospective employers. Following a jury trial, the plaintiff prevailed on his claim and was awarded damages. ESD then moved for judgment as a matter of law or for a new trial, asking in the alternative that the court certify to the state supreme court the question of RCW 49.60.210(l)’s scope. Granting the motion in part, the district court certified the following question: “Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?”

Statutory language. Answering the question in the affirmative, the state high court first turned to the plain language of RCW 49.60.210(1), which provides that it is an actionable unfair practice for “any employer … to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter.” Noting that for purposes of WLAD, an “employer” is broadly defined as “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit,” the court found that ESD was clearly “any employer.” Further, the court explained, WLAD defines a “person” in extremely broad terms so that the plaintiff was obviously a person. And while WLAD does not define “discrimination,” it would “defy the ordinary meaning of that word to hold that it excludes an employer’s differentiation between people in the hiring process based on an observable characteristic, such as whether or not they have previously filed antidiscrimination lawsuits,” said the court, finding that discriminating against a person in “terms or conditions of employment” because of race is clearly a practice forbidden by WLAD, and filing a lawsuit for damages based on such discrimination is clearly opposing that practice.

Rejecting ESD’s assertion that antiretaliation provision applies only to a plaintiff’s current employer and prohibits only adverse actions that affect the plaintiff’s preexisting employment status, the court found WLAD’s definition of employer clearly includes prospective employers and nothing about the statutory context indicates that “any employer” means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD. Although RCW 49.60.210(1) does not explicitly refer to prospective employers or job applicants, none of WLAD’s provisions refer to a “prospective employer” or a “job applicant,” said the court, noting that it has always treated WLAD references to employers to include prospective employers where appropriate.

Functionally similar test. Also rejected was ESD’s contention that the “functionally similar” test Washington courts have applied in other cases should apply here, thus restricting the provision’s scope to the plaintiff’s current employer. But Washington courts employ the “functionally similar” test to determine whether the defendant had sufficient control over the plaintiffs employment to be held personally liable for discriminatory actions, the court pointed out, noting that as the entity making the hiring decision, ESD had complete control over the plaintiff’s possible employment, and the “functionally similar” was not relevant here.

Nor was the court swayed by ESD’s argument that RCW 49.60.210(1) prohibits retaliatory discrimination only in the context of an established employment relationship because the only forms of prohibited retaliation that the statute explicitly mentions are “discharg[ing]” and “expel[ling],” both of which contemplate a preexisting relationship. Explaining that the list is not exclusive, the court pointed out that the statutory structure and context do not indicate any legislative intent to limit its prohibition on retaliatory discrimination to discrimination within existing employment relationships.

And while ESD argued that RCW 49.60.210(1) prohibits only an “adverse employment” action or decision that affects the terms or conditions of an established employment relationship, the court pointed out that no published Washington case has ever considered, much less rejected, the question of whether the provision prohibits retaliatory discrimination in hiring. The language of the statute, said the court, “simply does not include the limitations that ESD 171 argues we should read into it.”

Liberal construction. Finally, the court found that any plain language interpretation of a WLAD provision must consider the legislature’s express statement of purpose and mandate for liberal construction. Noting that WLAD’s purpose in part is the “elimination and prevention of discrimination in employment,” the court explained that the right to be free from invidious discrimination includes the right to obtain and hold employment without discrimination. It would make little sense, the court observed, to hold that the legislature intentionally undercut its own purposes in enacting WLAD by adopting an antiretaliation provision that allows employers to compile an unofficial “do not hire” list of individuals who have previously opposed discrimination against themselves and others. “We cannot believe that the legislature intended to allow such blatant retaliatory discrimination in direct contravention of everything WLAD is meant to accomplish,” the court concluded.

And because the plaintiff was the prevailing party, the court granted his request for reasonable attorneys’ fees.

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