Keeping An Eye Out For Discrimination
Jany K. Jacob
(Reprinted from Seattle Daily Journal of Commerce)

        In the wake of the September 11^th terrorist attacks some Washington employers have been asked to investigate incidents of racial, national origin or religious discrimination or harassment against employees of Middle Eastern ethnicity—either real or perceived. In some cases even Sikhs wearing turbans were ignorantly perceived to be of Middle Eastern rather than of Indian origin.

        Washington employers and supervisors investigating complaints of discrimination or harassment should be aware that Washington’s Law Against Discrimination (WLAD), RCW 49.60, is liberally construed in the courts. For instance, the 1996 Marquis v. City of Spokane Washington Supreme court case construed WLAD to permit independent contractors as well as employees to sue for discrimination. Thus, in Washington, independent contractors have the right to be free of discrimination in the negotiation or performance of a contract for personal services. This is a marked change from the federal statute, Title VII of the Civil Rights Act of 1964 (Title VII), which only permits employees to sue their employers.

        In the Marquis case, a female golfer sued the City of Spokane and city officials for sex discrimination in the making and performing of her contract to manage a golf course vis-à-vis contracts made between the city officials and male golf professionals. The court referenced the legislative purpose of WLAD and stated that it mandated liberal construction. It then went on to hold that WLAD applied with equal force to independent contractors and employees. This ruling departed from federal cases construing Title VII. The Marquis court stated that the federal cases were not helpful, in large part because “employee” is clearly defined in Title VII as an individual employed by an employer. WLAD, in contrast, does not define “employee” except to state that it does not include a person employed by a family member or a domestic servant. Also, unlike Title VII, WLAD is not limited to employment discrimination. Instead, WLAD’s reach is greater because it conceptualizes freedom from discrimination as a civil right rather than limiting its scope to employment discrimination. Finally, the court bolstered its conclusion by pointing out that the Washington Human Rights Commission, the agency charged with the administration of WLAD, promulgated a rule extending the statute to independent contractors.

        A recent Washington Supreme Court case also illustrates WLAD’s liberal construction in the courts. In this year’s Brown v. Scott Paper Worldwide case, the high court ruled that a supervisor acting on behalf of and in the interest of the employer may be sued individually by the employee—along with the employer. This case actually represents two consolidated cases. In the first, Beverly Brown sued her employer and six managers for sex discrimination, sexual harassment and disability discrimination. Ms. Brown was the first woman employed by the Scott Paper Company remains one of only a handful of female employees working for the company. She was promoted to the highest craft position, but then was issued a disqualification from advancement letter. In the second case, Terry Raymond, 51, sued his employer, Pacific Chemical, and several supervisors for wrongful discharge based upon age discrimination. Mr. Raymond was a salesman for the Puget Sound and southeast Alaska territory. He was then reassigned and his compensation was lowered as a result. Raymond was subsequently terminated and a younger and less experienced employee. Raymond alleged in his complaint that several supervisors at Pacific Chemical had devised a scheme to drive out older salespersons.

        In analyzing whether supervisors can be held individually liable under WLAD, the Supreme Court now focused on the term “employer” which is statutorily 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 profit.” RCW 49.40.040(3).

        This court decided that a discriminating supervisor clearly fell within the ambit of this very broad definition of “employer.” In doing so, it again noted WLAD’s express mandate of liberal construction. Thus, an individual supervisor is liable under Washington law for his or her own wrongful conduct.

        Employers can do three things to limit the risk of liability. First, they should conduct tolerance training for supervisors to educate its workforce about Islam and the futility of fighting hate with hate. Second, they should develop a policy detailing how complaints against supervisors will be handled by the company. Employers must be careful to adhere to all policies once created. Third, the employer should relay the findings of any investigation conducted to both the supervisor accused of discrimination and the complaining employee and offer both of them an opportunity to respond to the findings. It is helpful to have a neutral third party in the company handle the investigation. Such a proactive policy may even lead to the smoothing over of misunderstandings long before a dispute ends up in the courtroom.