March 9, 2010
Washington State law on religious discrimination includes Washington’s “Law Against Discrimination.” RCW 49.60.180 provides in relevant part that “It is an unfair practice for any employer:”
(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, 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.
(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, 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:
(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, 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, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification:
Now, that is the statutory language. What have the courts said about what a Plaintiff needs to show to keep his case from being dismissed?To show a prima facie case of retaliation under RCW 49.60, an employee must show that: (1) she opposed an activity forbidden by chapter 49.60 RCW; (2)the employer took adverse employment action against her; and (3) retaliation was a substantial factor behind the adverse employment action. See, e.g., Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85, 821 P.2d 34 (1991).
If the plaintiff establishes a prima facie case, but no direct evidence of discrimination exists, the Washington Supreme Court has adopted the so-called McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The U.S. Supreme Court modified the burden-shifting protocol in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and articulated in Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 23 P.3d 440 (2001). Once the prima facie case is established, a rebuttable presumption of discrimination arises and the defendant must present evidence that the employer took the challenged employment action for legitimate reasons. Hill, 144 Wn.2d at 181.
Where is direct evidence of discrimination, the McDonnell Douglas test does not apply. Even if it did, if the employer never provided any written warnings of any problems that then became so-called reasons for termination, then the Plaintiff can argue that the employer’s reasons are a mere pretext for unlawful discrimination. Where discrimination does not target a particular religion, but is against an employee who does not share a particular religious belief, the employee must show:
(1) the employer subjected the employee to some adverse employment action;
(2) that, at the time the employment action was taken, the employee’s job performance was satisfactory; and
(3) some additional evidence to support the inference that the employer took actions because of a discriminatory motive based upon the employee’s failure to hold or follow his or her employer’s religious beliefs.
Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1038 (10th Cir.1993)]
The plaintiff is then entitled to the benefit of the McDonnell burden-shifting scheme and its presumptions. The plaintiff need only present a scenario that on its face suggests the defendant more likely than not discriminated. Lawrence v. Mars, Inc., 955 F.2d 902, 905-06 (4th Cir.), cert. denied, 506 U.S. 823, 113 S.Ct. 76, 121 L.Ed.2d 40] Nielson v. AgriNorthwest 95 Wn. App. 571, 577-578, 977 P.2d 613, 617 ( Div. 3,1999)
February 3, 2010
“I-692 did not legalize” medical marijuana, say four members of the Washington State Supreme Court in an opinion filed January 21st, 2010, in State v. Fry. “I-692” was the groundbreaking voter initiative which made Washington one of the first states to think they had a law legalizing medical marijuana when approved by a physician in writing.
Therefore, when a patient presents an officer who smells marijuana with a written authorization from doctor, there is still probable cause to believe a crime has been committed, and a search and seizure of the marijuana does not violate the Fourth Amendment prohibition on unreasonable searches and seizures, or Washington Const. Art. 1, sec. 7, which prevents government invasions into private affairs without authority of law, according to the Court.
The “reasoning” of the Court was that the statute makes the written authorization from the doctor an “affirmative defense” which does not negate probable cause to believe a crime has been committed when there is evidence of marijuana.
Justice Sanders had the courage to dissent from the plurality opinion. Four justices of the nine member court concurred, meaning they reached the same result but with different reasoning.
Since the Fry litigation commenced, the legislature amended the statute to provide officers would take only a sample of the marijuana, not all of it, when presented with the written documentation from a doctor. It still does not stop an arrest or a criminal charge. A patient with a perfectly valid authorization could be charged, and his only remedy is to present his written authorization as a defense at trial.
After all, when you are undergoing chemo and radiation for cancer, or have multiple sclerosis, or are dying with intractable pain, you have nothing better to do than attend criminal court proceedings.
Several justices are up for re-election this year, and Justice Gerry Alexander is retiring, leaving his seat vacant. Any constitutional scholars want to run?
January 12, 2010
[A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following: … (Because of the employee’s own serious health condition) (or) In order to care for the spouse, or a son or daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. …
(B) continuing treatment by a health care provider.”
The employee must give 30 days notice of the leave request, unless the date of the treatment under the circumstances does not allow that, in which case the employee must give as much notice “as practicable.”
The request does not have to be written, although in many cases the employer will have forms for the employee to fill out. The request does not have to specify it is for “FMLA,” it is sufficient if the information provided makes the employer aware that the condition probably fits within FMLA. An employer’s internal procedural requirements cannot be more strict than required by FMLA.
The employee does not have to provide medical documentation unless it is requested by the employer, in which case the employee clearly must comply with that request. It is the employer’s duty to followup with any request for additional documentation. Clearly, an FMLA request can be made, and leave taken, without necessarily providing any medical documentation at that point. Documentation can take place later.
The twelve weeks of FMLA leave to which the employee is entitled may be taken intermittently.
Further, the leave can be taken in the form of a reduced work schedule.
January 9, 2010
A deferred prosecution is an option for anyone charged with DUI or any other gross misdemeanor, or misdemeanor, when the conduct is the result of a serious alcohol or substance abuse problem.
Ordinarily, you do not want to go on a deferred prosecution if it is your first DUI charge ever, especially if your BAC reading is under .15. Why? Because the consequences of a sentence for a first DUI, especially if the State will amend the charge to something less serious, could be less onerous than those of a deferred prosecution program.
The main advantages of entering deferred prosecution are that you do not get convicted of the offense, and do not receive penalties. You will however, have to comply with a rigorous treatment program for two years. And the treatment is at your own expense, unless you can get it covered under your insurance or apply for state funding. But you will not have your license suspended if you go on deferred prosecution, nor will you serve jail time.
The disadvantages are that as a condition of being granted deferred prosecution, you must sign a stipulation that if you violate the conditions of the program, and get “revoked,” then you will not receive a jury trial or most of the rights that go with it.
Instead, the Court will simply review the police report and make a determination of guilty or not guilty based on that, without live testimony. And, you would not have taken a deferred program, if you thought the evidence against you was weak, you would have gone to trial.
Once you complete your two years of treatment, your are still on probation for five years, and must not commit any similar offenses during that time. If you meet all the requirements, then the charge is dismissed.
In the State of Washington, you can only take a deferred prosecution once in a lifetime.
Do not go on a deferred prosecution unless you acknowledge you have a serious alcohol or substance abuse problem, and are committed to complete abstinence, and completing your treatment faithfully.
If you are more than a first time offender, and you need the treatment, and you follow the requirements, it may be the best thing to happen to you.
January 9, 2010
One type of wrongful termination case arises when the employer’s conduct violating a statute that specifically gives the employee the right to sue when for a violation of the law, such as Title VII of the Civil Rights Act, where there has been discrimination by sex or race.
But when there is no specific legal violation of a statute that sets forth a remedy for the employee, then under case law of the State of Washington, there may still be a case of wrongful termination based on violation of “public policy.”
Washington courts have generally recognized the public policy exception when an employer terminates an employee as a result of his or her
1) refusal to commit an illegal act,
(2) performance of a public duty or obligation,
(3) exercise of a legal right or privilege, or
(4) in retaliation for reporting employer misconduct.
January 6, 2010
Question:I have just been terminated from my employment.
How do I know whether I am eligible for unemployment based on the reason the employer is giving for discharging me?
Answer: Under Washington State law, you will eligible for unemployment compensation benefits if your employer fired you because of business reasons, such as staff downsizing, and even if the employer says you had poor performance or were negligent in some way.
You will not be eligible if you committed “misconduct.”
Misconduct means an intentional or wilful violation of a clear rule of the employer of which you were aware, or which is obvious, such as the prohibition on theft or dishonesty which impacts your employer’s interests.
If you have merely made a mistake, or there is a misunderstanding, the employer may try to label it as “misconduct” to deny you unemployment comp, and save themselves premium increases.
The burden is on the employer to show misconduct. If the Employment Security Department denies your benefits on the basis of “misconduct,” contact an employment lawyer such as William Edelblute, about an appeal. At the administrative appeal hearing, the burden will be on the employer to show that you wilfully violated a rule. I win most appeals for my clients based on “misconduct” issues because often the employer is exaggerating what is poor performance, negligence, or a misunderstanding into “misconduct.”
The law governing this issue is found in RCW 50.04.294(1) and RCW 50.20.066.