1. Responding to Employment Discrimination Complaints Responding to Employment Discrimination Complaints: Administrative Agency Overview WASHINGTON STATE HUMAN RIGHTS COMMISSION WASHINGTON STATE HUMAN RIGHTS COMMISSION By Janice Whitman

2. Established in 1949 by the Washington State Legislature to administer the Washington Law Against Discrimination, RCW 49.60 The Mission of the Washington State Human Rights Commission is to prevent and eliminate discrimination through the fair application of the law, the efficient use of resources, and the establishment of productive partnerships in the community. Neutral, Fact-Finding, Law Enforcement Agency Complaint Investigation, Alternative Dispute Resolution, Education and Outreach

3. EMPLOYMENT DISCRIMINATION LAWS: WASHINGTON STATE Enforced by Washington State Human Rights Commission (WSHRC): Chapter 49.60 Revised Code of Washington (RCW) State Statute written by Legislature Title 162 Washington Administrative Code (WAC) Agency Rules written by Human Rights Commission Case Law developed by State and Federal Courts interpreting statutes and rules in litigation, e.g. Washington State Supreme Court, Court of Appeals

4. EMPLOYMENT DISCRIMINATION LAWS: Federal Title VII of the Civil Rights Act of 1964 Title I of the Americans with Disabilities Act of 1990 (ADA) Age Discrimination in Employment Act of 1967 (ADEA) Equal Pay Act of 1963 (EPA) Lilly Ledbetter Fair Pay Act GINA Case Law developed by Federal Courts, e.g. U.S. Supreme Court

5. INTAKE SCREENING: JURISDICTION LAW: RCW 49.60 TIMELINESS (SOL): Within 6 months of date of alleged harm; 2 years for state employee whistleblower; 300 days for EEOC AREA: Employment, >8 Employees (15 for EEOC) [Housing, Public Accommodation, Real Estate and Credit Transactions, Insurance] Protected Class Basis

6. PROTECTED CLASSES in EMPLOYMENT under RCW 49.60 *Race/*Color; *National Origin; *Creed; *Sex/Pregnancy; Sexual Orientation/Gender Identity Veteran/Military Status *The presence of any sensory, mental or physical Disability-Actual or Perceived Use of a Service Animal; HIV or Hepatitis C; Marital Status; *Age (40+); State Employee Whistleblower Status * Federally Protected Classes

7. FILING AND NOTIFICATION Receive Complaint against Employer Notice of Complaint to Respondent – No Response required… Initial Investigation – Issues under RCW 49.60? Examples: LNI Jurisdiction – wage/hour; FMLA; Worker’s Comp… WSHRC Jurisdiction – equal pay; pregnancy-related disability; failure to accommodate a disability… Notice of No Reasonable Cause to Parties, RCW 49.60.240(1) or…

8. FILING AND NOTIFICATION Prima Facie Case: Complaint Drafted Dual Filing with EEOC : One investigation, state and federal jurisdiction (SOL; # Employees; Class) Respondent – 2nd Notice, Perfected Charge and Request for Response Investigation…

9. Early Resolution: Fact-Finding Conference Not Mediation = Not Confidential Investigative Tool: Goal is Early Settlement or Expedited, Prompt Investigation Information from Fact-Finding becomes part of the investigative file materials and evidence used to advance complaint investigation Parties submit all evidence or negotiate agreement to resolve the complaint with assistance from the investigator as neutral, third party Voluntary: All Parties Must Agree to Participate Witnesses and other evidence may be presented Communication is conducted via the Fact-Finder (Investigator) Pre-Finding Settlement Agreement Case Closure Continued Investigation… 9

10. Early Resolution Pre-Finding Settlement Agreements (PFS) Resolves the Complaint between 3 parties: Complainant, Respondent, Commission Provision in PFS precludes further action by Complainant Negotiation Communication facilitated by Investigator Agreement between Respondent and Commission Private Settlement Agreements: Complainant withdraws complaint; Administrative Closure; Not subject to public disclosure; WSHRC is not a party 10

11. Common Theories of Employment Discrimination Disparate (Different) Treatment Retaliation Failure to Accommodate a Disability Harassment/Hostile Work Environment

12. Elements and the Burden of Proof Each Case is Composed of Elements The Basic Elements are: -Protected Class; -Adverse Action; and -Nexus between Protected Class and Adverse Action. If any element fails to meet the legal standard, the entire case fails. Charging Party (Complainant) bears Burden of Proof Legal Standard: Preponderance of Evidence

13. Disparate Treatment 1. Employee is a member of a Protected Class; 2. Employer subjected Employee to an Adverse Employment Action; 3. Employee was treated differently than similarly situated individuals outside of the Protected Class; 4. There is a nexus between the Protected Class and adverse action, i.e. the adverse treatment was because of the employee’s protected class.

14. 3-Step Evidentiary Analysis of Disparate Treatment Cases Step One: Employee has burden to produce a Prima Facie Case; Step Two: Employer has burden to “articulate a legitimate, non- discriminatory reason” for the adverse action taken against the employee; Step Three: Employee has the ultimate Burden of Proof to show the Employer’s proffered reason for its action is a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

15. Disparate Treatment Response Comparative Data: Treatment of similarly situated employees inside and outside of Complainant’s protected class Legitimate non-discriminatory reason for adverse action: e.g. job performance, reduction of staff, insubordination… Documentation of job performance: reviews, discipline, complaints, witness statements… Supporting Documentation for each Assertion

16. PREGNANCY Avoid assumptions about the capabilities of pregnant women. In Hegwine v. Longview Fibre Co., the employee prevailed on her sex discrimination claim because of the employer’s assumption that she was disabled due to her pregnancy. 132 Wash.App. 546 (2007) However, while discrimination on the basis of pregnancy is sex discrimination, pregnancy- related disabilities require reasonable accommodation Pregnancy related medical leave is different from FMLA.

17. Failure to Accommodate 1. Employee is a Qualified Individual with a Disability ; 2. Employer had notice of the need for an Accommodation ; 3. Employer failed to engage in an Interactive Process and failed to provide the Accommodation; 4. The Accommodation would allow the individual to perform the Essential Functions of the job.

18. Reasonable Accommodation: Undue Hardship Exception Reasonable Accommodation: Undue Hardship Exception WAC 162-22-075 Unduly costly, extensive, disruptive; or Fundamentally alters nature of business Factors: Nature and Cost of Accommodation Financial Resources of Employer Impact on Business Operations

19. NOT Undue Hardship Inconveniences or Hassles for the Employer or other Employees Fears and Prejudices of Employees or Customers Disruptions in the workplace that do not fundamentally impact the business DISCRIMINATORY ATTITUDES OF CUSTOMERS OR EMPLOYEES DOES NOT ALLOW DISCRIMINATORY ACTION, WHICH VIOLATES THE LAW!

20. Sexual Harassment Two Theories 1.Hostile Work Environment 2.Quid Pro Quo (Latin, “this for that”) (a) Employee subjected to unwelcome sexually demanding conduct; (b) Employee suffered a tangible employment action as a result of the conduct.

21. HARRASSMENT/HOSTILE WORK ENVIRONMENT 1.Employee is a member of a protected class; 2.Complainant was subjected to unwelcome and unwanted harassment because of protected class; 3.The harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive and hostile work environment; 4.Employer knew or should have known about the harassment but failed to take prompt and effective remedial action. Title VII is not a “general civility code for the American Workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) 21

22. Conclusion of Investigative Process Case Dismissal - No Reasonable Cause Administrative Closure: Lack of Jurisdiction; Adjudication in another Forum; Withdrawal (private settlement, private litigation/right to sue letter, no longer wishes to pursue); Pre- Finding Settlement Agreement; Failure of Complainant to Cooperate or Cannot Locate; Resolved between the Parties; Transfer to EEOC… PFS to address an issue; administer compliance with RCW 49.60; prevention of recurring issues/complaints Reasonable Cause Finding – Evidence of a violation of RCW 49.60 22

23. Reasonable Cause Findings Failure of Respondent to enter into Pre-Finding Settlement If there is reasonable cause to believe an unfair practice has occurred, the investigator shall immediately endeavor to eliminate the unfair practice by conference, conciliation and persuasion. WAC 162-08-098, RCW 49.60.240 Afford Respondent a reasonable opportunity to negotiate Conciliation Failure: Referral to Assistant Attorney General 23

24. Best Practices Workplace Prevention: Anti-discrimination policies; reporting procedures; alternative reporting procedures if complaint is against management Notice to employees; training; signed acknowledgment of policies Take all complaints seriously; avoid retaliation; promptly investigate; take corrective action Reply promptly to reasonable accommodation requests; Interactive Process continues until effective accommodation is found Responding to Complaints: Supporting Documentation: witness statements; personnel records; comparative data; legitimate, non-discriminatory reason for adverse action; correspondence; performance reviews; doctor/medical provider notes… Promptly reply to Requests for Information to move investigation toward conclusion…

25. Contact Contact www.hum.wa.gov www.hum.wa.gov : For more information or to receive a copy of this power point, please contact the presenter: Janice Whitman, 360-359-4922, jwhitman@hum.wa.gov jwhitman@hum.wa.gov Technical Assistance: 1-800-233-3247 Olympia Headquarters Office, 711 S. Capitol Way, Suite 402, 98504 Satellite offices: Vancouver, Seattle, Everett Eastern WA: Spokane, Yakima satellite office