The Washington Supreme Court recently held that job applicants have a claim under the Washington Law Against Discrimination (WLAD) when a prospective employer refuses to hire them in retaliation for their opposition to discrimination by a different employer.
Facts
In 2006, the Waterville School District hired “Alfred” as a math teacher. While working there, he filed multiple grievances regarding hostile and abusive actions by his students. Among other things, he described being called a chink, a communist, and gay.
Alfred eventually sued the school district in federal court, alleging that instead of attempting to remedy the situation, Waterville retaliated against him for filing the grievances by attempting to discharge him. After the district court denied Waterville’s request to dismiss the case without a trial, the parties settled, and Alfred resigned.
Three months after resigning, Alfred applied for a teaching position with the North Central Educational Service District (ESD). He was one of three candidates interviewed, but ESD ultimately hired a different candidate, whom Alfred claimed was less qualified. Members of ESD’s hiring committee were aware of Alfred’s lawsuit against Waterville when they made the hiring decision.
Alfred sued ESD, alleging that it had refused to hire him in retaliation for his previous lawsuit, thereby violating the WLAD’s antiretaliation statute. Following a jury trial, he prevailed on his WLAD antiretaliation claim and was awarded damages.
At ESD’s urging, the Washington Supreme Court later certified the following question: “Does [WLAD’s antiretaliation statute] 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?”
Court’s Opinion
The supreme court held that the WLAD’s antiretaliation provision does create a claim for applicants who allege that a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer. The statute provides in full:
It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
Among other things, ESD argued that the statute’s reference to “employer” should be limited to an employee’s current employer because the words “discharge” and “expel” contemplate an existing employment relationship. The supreme court rejected that argument, concluding that the list of prohibited activities referenced by ESD is nonexclusive and that under a plain reading of the statute, a prospective employer easily fits within WLAD’s broad definition of “employer.”
In reaching its decision, the court cited favorably a Washington Court of Appeals case that held that “[a]n employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of sexual harassment or retaliation.” The court reasoned that if prospective employers were allowed to engage in retaliatory refusals-to-hire, a reasonable employee might well be dissuaded from opposing discriminatory practices for fear of being unofficially “blacklisted” by prospective future employers.
Difference from Workers’ Compensation Retaliation Protection
In reaching its holding, the supreme court refused to extend Warnek v. ABB Combustion Eng’g Servs., Inc., in which it had previously held that the antiretaliation provision found in Washington’s workers’ comp statute doesn’t create a claim for former employees who allege that their former employer refused to rehire them in retaliation for having previously filed workers’ comp claims in another state.
The court reasoned that there were “clear factual differences” between the two cases and that “a close comparison of the language of [the workers’ comp statute] and [the WLAD] . . . shows that the latter condemns retaliation even more forcefully.”
The court did recognize, however, that the scope of the WLAD is limited. It likely doesn’t protect against all potential adverse actions taken by an employer.
For example, the court remarked that it “does seem unlikely that the statute contemplates a cause of action against someone who engages in retaliatory discrimination against a purely social acquaintance in a purely social capacity, even if the discriminator otherwise happens to be an employer.”
Takeaway for Employers
You need to be aware that you can now be sued by applicants who claim that you refused to hire them for opposing a previous employer’s discriminatory practices. As a result, if you become aware that an applicant previously opposed alleged discrimination by a different employer, you must be sure to carefully document the reasons for your decision to deny employment in case it’s later challenged in court.
William Miller, contributor to Washington Employment Law Letter, can be reached at wmiller@perkinscoie.com.