Employers who refuse to hire job applicants who opposed discrimination in a prior job may be sued for retaliation under the Washington Law Against Discrimination (WLAD), the Washington Supreme Court has held in a unanimous decision. Zhu v. North Central Educ. Servs. – ESD 171, No. 94209-9 (Nov. 9, 2017). The Court ruled that WLAD creates a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer.

The Court was asked to decide the following certified question: “Does RCW 49.60.210(1) [of the WLAD] create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?” In a first-of-its-kind case, the Court held that based on the plain language, purpose, and structure of WLAD as a whole, the answer is “yes.”

RCW 49.60.210(1) provides that it is an actionable unfair practice for “any employer … to discharge, expel, or otherwise discrimination against any person because he or she has opposed any practices forbidden by this chapter.” Any employer includes prospective employers who do not have an established employment relationship with the job applicant.

Background

The plaintiff, Jin Zhu, was a math teacher at the Waterville School District. In 2010, he sued the Waterville School District for race discrimination, hostile work environment, and retaliation when Waterville allegedly took retaliatory action against him for filing his grievances, including attempting to discharge him without probable cause, instead of attempting to remedy the discrimination. The parties settled the case in 2012 and, as part of the settlement, Zhu resigned from his job.

Subsequently, Zhu applied for a position with North Central Educational Services District No. 171 (ESD). ESD provides cooperative and informational services to local school districts, including Waterville School District. It was undisputed that members of ESD’s hiring committee were aware of Zhu’s suit against Waterville School District. Zhu was not hired.

Zhu sued ESD in federal court alleging, among other things, unlawful retaliation under the WLAD in refusing to hire him because of his prior claim against the Waterville School District. The court denied ESD’s request for summary judgment.

A jury agreed with Zhu, finding he was locked out of jobs with ESD and its member school districts, and ordered ESD to pay Zhu $450,000. ESD then moved for judgment as a matter of law or for a new trial or, in the alternative, that the federal court certify to the Washington Supreme Court the question of RCW 49.60.210(1)’s scope.

Prospective Employers

Expanding WLAD’s reach, the Washington Supreme Court held that, by its plain language and purpose, RCW 49.60.210(1) applies to prospective, as well as current, employers. It explained that an “employer” for purposes of WLAD is broadly 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.”

The Court rejected the argument that the law does not authorize claims against prospective employers where there has been no existing employment relationship. It reasoned that if the statute applied only to current employers, employees “might well be dissuaded from opposing discriminatory practices for fear of being unofficially ‘blacklisted’ by prospective future employers.”

The Court noted that by “rendering a verdict in Zhu’s favor, the jury has already decided as a question of fact that ESD refused to hire Zhu because of his opposition to Waterville’s discriminatory practice.” Because Zhu is the prevailing party, the Court granted his request for reasonable attorney’s fees.

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Employers should work with employment counsel to lower the risk of WLAD claims. Less than a month before Zhu, in another employment case brought under WLAD, the Washington Supreme Court reaffirmed that summary judgment should rarely be granted in WLAD cases. Mikkelsen v. Public Utility Dist. No. 1 of Kittitas Cty, No. 93731-1 (Oct. 19, 2017).