Washington's Law Against Discrimination: What It Covers That Federal Law Does Not

What the Washington Law Against Discrimination covers

The Washington Law Against Discrimination, chapter 49.60 RCW, is usually called the WLAD, and two of its sections do most of the work in an employment case. RCW 49.60.030(1) declares a civil right to be free from discrimination because of "race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, 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," and it includes within that right "[t]he right to obtain and hold employment without discrimination." Subsection (2) gives an injured person a civil action for an injunction, actual damages, or both, "together with the cost of suit including reasonable attorneys' fees."

RCW 49.60.180 then lists what an employer may not do, and its list of protected characteristics is not identical. It adds age and marital status, which do not appear in RCW 49.60.030(1). That difference decides which statutory hook a worker's claim hangs on and, sometimes, whether the worker is covered at all.

Where WLAD is broader than federal law

The employer size threshold is lower. The WLAD defines an "employer" as a person "who employs eight or more persons." RCW 49.60.040(11). Title VII applies to employers with fifteen or more employees. Someone at a ten-person Spokane company has a state claim and no federal one.

Sexual orientation is in the statute by name. It means "heterosexuality, homosexuality, bisexuality, and gender expression or identity," and expressly covers having or being perceived as having a gender identity different from the sex assigned at birth. RCW 49.60.040(29).

The definition of disability is wider. A WLAD disability is an impairment that is medically cognizable or diagnosable, exists as a record or history, or is perceived to exist whether or not it exists in fact, and it exists "whether it is temporary or permanent, common or uncommon, mitigated or unmitigated." RCW 49.60.040(7)(a)-(b).

Race is defined to include hair. Race "is inclusive of traits historically associated or perceived to be associated with race including, but not limited to, hair texture and protective hairstyles." RCW 49.60.040(21).

Do you have to file with the EEOC first?

A federal Title VII claim ordinarily requires an administrative charge before any lawsuit. The charge goes to the Equal Employment Opportunity Commission, and because Washington has a state civil rights agency with a work-sharing arrangement, filing with one generally counts as filing with the other.

Under 42 U.S.C. § 2000e-5(e)(1) the baseline is 180 days after the alleged unlawful employment practice occurred. A 300-day period applies instead where the worker has initially instituted proceedings with a state or local agency with authority over the practice, which in Washington means the Human Rights Commission, and even on that longer track the charge comes due 30 days after notice that the state agency has terminated its proceedings if that date arrives first. A short further period then runs, after the right-to-sue notice issues, for filing the suit.

A claim under the Washington Law Against Discrimination works differently, because there is no administrative exhaustion requirement for a WLAD claim brought in court. A worker may instead complain to the Washington State Human Rights Commission, and RCW 49.60.230(2) then requires that complaint within six months of the alleged act, with one year for pregnancy discrimination and two years for whistleblower retaliation. In superior court the ordinary limitation period is three years, drawn from RCW 4.16.080(2), and for a discrete act such as a termination it starts on the date of the act.

These windows are short, and they differ by claim and by forum. One set of facts can produce a federal charge deadline measured in months and a court deadline measured in years, and missing the shortest closes that route.

What a hostile work environment claim actually requires

Under Washington law the claim has four elements: language or conduct because of a protected characteristic, that was unwelcome, that affected the terms or conditions of employment, and that is imputed to the employer.

The third and fourth elements are where these cases are fought. Merely offensive conduct does not satisfy the third; it has to have been sufficiently severe or sufficiently pervasive, which are two separate routes, and one incident can be enough if it is extreme. On imputation, conduct is attributed to the employer directly where an owner, manager, or corporate officer personally participates, but where a supervisor or coworker created the environment the employee must show the employer authorized, knew, or should have known of the harassment and failed to take reasonably prompt and adequate corrective action.

Retaliation and the duty to accommodate

Retaliation is a distinct claim, not an aggravating detail. RCW 49.60.210(1) makes it an unfair practice 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." It can survive even where the underlying complaint was not itself a violation.

Accommodation runs on its own track. For accommodation purposes specifically, RCW 49.60.040(7)(d) requires that the impairment be known or shown through an interactive process to exist in fact, and then either that it substantially limit the person’s ability to do the job, or that the employer was put on notice and medical documentation shows a reasonable likelihood that working without accommodation would aggravate the impairment to that degree. A limitation "is not substantial if it has only a trivial effect." RCW 49.60.040(7)(e). The statute itself uses the phrase "interactive process," which tells you that what was said between employee and employer, and in what order, carries real weight.

Wrongful discharge in violation of public policy

Washington also recognizes a common-law tort outside the WLAD. Four core situations have long been recognized: discharge for refusing to commit an illegal act, discharge for performing a public duty such as jury service, discharge for exercising a legal right such as filing a workers' compensation claim, and discharge in retaliation for reporting employer misconduct. A claim inside those four is not run through the four-factor framework reserved for novel public-policy claims. The tort also reaches past the WLAD's eight-employee floor, since the Supreme Court has applied it to private employers with fewer than eight employees.

Independent contractors, and why Washington differs from Oregon

Most antidiscrimination law protects employees and stops there. The Washington Law Against Discrimination does not, and the controlling case is from Spokane. A golf professional under contract to operate one of the City's courses alleged sex discrimination in the negotiation and performance of that contract. The Washington Supreme Court held: "Applying general rules of statutory construction, we hold the broad recognition of rights contained in RCW 49.60.030(1) includes the right of an independent contractor to be free of discrimination based on sex, race, national origin, religion, or disability in the making or performing of a contract for personal services." Id. at 112-13.

The limits of that holding are part of what makes it useful. It rests on the general civil right in RCW 49.60.030(1), not the employer-unfair-practices section, and the Court was explicit that an independent contractor does not have the protection of RCW 49.60.180. The bases listed are also narrower than the list that applies to employees.

Oregon’s chapter, ORS 659A, by contrast covers only employees, and independent contractors do not enjoy its protections. Oregon is broader in a different respect, reaching a private employer with even one employee where Washington requires eight.

Where this goes wrong

Resigning before getting advice. A resignation changes the question from whether you were fired unlawfully to whether conditions were intolerable enough to count as a discharge, which is harder to show. People quit Friday and call Monday, and Monday is too late.

Missing an administrative window. Internal HR complaints, union grievances, and appeals to a supervisor stop no clock.

Assuming at-will employment means the employer may do anything. At-will means no good reason is needed, not that the employer may act for a prohibited reason, and it has no application to retaliation or the public-policy tort.

Assuming any unfair treatment is discrimination. A manager hostile to everyone, a demotion that really was about performance, favoritism toward a friend—none is unlawful without a link to a protected characteristic or protected activity.

Never gathering the evidence. Schedules, reviews, and the email where you reported it are where a claim is found or lost, and people lose account access the day they are walked out.

What a lawyer does here that you cannot do alone

Most of the work is characterization and sequencing. One fact pattern can support a WLAD disparate treatment claim, a hostile work environment claim, a retaliation claim, an accommodation claim, and a public-policy tort, each with its own elements, proof, and deadline, and some available in state court while others require an administrative charge first. Choosing which to bring, in which forum, and in what order is a decision made once and lived with.

I handle employment discrimination, harassment, retaliation, accommodation, and wrongful discharge matters from my office in downtown Spokane, in Washington superior courts and in the Eastern and Western Districts of Washington. I am admitted in Washington, WSBA #55307, and Oregon, OSB #242384.

If something has happened at your job and you are weighing what to do next, I offer a free consultation by appointment at my Spokane office, 601 W. 1st Ave., Suite 1400, and it helps to come with your dates and whatever documents you still have access to.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.