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Washington Supreme Court adopts “knew or suspected” standard for WLAD retaliation claims

The Washington Law Against Discrimination (WLAD) prohibits employers from retaliating against employees who have engaged in activity protected under the statute. The Washington Supreme Court recently reviewed how to determine whether an employee’s manager had sufficient knowledge that the employee engaged in protected activity to establish a potential causal link between that activity and the adverse action taken against the employee. Cornwell v. Microsoft Corp., 430 P.3d 229 (Wash. Nov. 29, 2018).

Dawn Cornwell had previously filed and settled a lawsuit against Microsoft alleging a WLAD claim for sex discrimination. Seven years later, she told her new manager that she had filed a lawsuit against Microsoft, could not report to her prior manager (who is male), the lawsuit involved a review score, and she could not say more due to confidentiality.  Shortly thereafter, her manager, who had no information about the lawsuit other than what Cornwell had provided, gave her a poor performance-review score.  Cornwell was then laid off as part of a larger reduction in force.  Cornwell did not learn about the low score until several years later when she was told she could not be rehired at Microsoft because her final performance rating was so low.

Cornwell sued Microsoft again, this time alleging she received a low rating and was laid off in retaliation for having filed her prior WLAD lawsuit. The trial court dismissed her claim on summary judgment because there was no evidence the manager knew the prior lawsuit involved a WLAD claim.  Without knowing Cornwell had engaged in protected activity under the WLAD, the manager could not have intended to retaliate against her for having engaged in such activity.  The court of appeals agreed and affirmed the trial court’s ruling.

The Supreme Court reversed and remanded the case to the trial court. In the Supreme Court’s view, whether analyzed under the stricter “actual knowledge” standard the court of appeals had applied or the less strict “knew or suspected” standard, Cornwell presented sufficient evidence to create an issue of material fact as to whether there was a causal link between her prior lawsuit and the adverse employment actions that followed after she advised her manager of that lawsuit.

Under the “actual knowledge” standard, the employer must actually know of the employer’s protected action for there to be causation. The Supreme Court concluded that because Cornwell’s manager knew she had previously sued Microsoft, and her lawsuit involved a review score and a male supervisor, this was enough to show her manager “knew” about her prior protected activity even if the manager did not know she had asserted a WLAD claim.  Therefore, there was an issue of material fact for a jury to decide as to whether that prior protected activity was a “substantial factor” in the low review score and layoff.  Under the “knew or suspected” approach, the Supreme Court explained, it will suffice to establish by reasonable inference that a manager suspected an employee engaged in protected activity.  As the Supreme Court felt there was a reasonable inference of “actual” knowledge there was also a reasonable inference of “suspected.”

Significantly, the Court adopted this lower “knew or suspected” standard going forward as furthering “WLAD’s purpose to protect employees from retaliation.” In doing so, the Court explained that an employee still must show that the protected activity was a substantial factor in the employer’s decision to take adverse action against that employee.

The Supreme Court’s decision thus makes it easier for employees to assert retaliation claims and harder for employers to obtain summary judgment on these claims. Employers must remain mindful of potential retaliation claims, especially where there is a close proximity in time between the protected activity and the adverse employment action.

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