WA Supreme Court - Safety Concern Transfer Based on Race Violates WLAD
Very interesting case out of the Washington State Supreme Court. Several workers at Western State Hospital (think Washington's version of Arkham Asylum) were pulled off of care in a particular ward due to its housing a violent patient who had threatened a particular employee of color, and stated "he planned to 'f*** up an [n-word] working with him.'"
The workers were removed from the ward, and another employee with lighter skin placed on his care for the weekend. Once the patient presumably became a little more stable, care in the ward resumed as normal (which, knowing Western State, is a very subjective form of normal)The employees sued under the Washington Law Against Discrimination, alleging disparate treatment and a hostile work environment. The supreme court upheld the factual finding that this was not a policy of racial staffing, but rather a one-off. On its face, the staffing decision was based on race, and thus amounted to disparate treatment in violation of RCW 49.60.180(3). There are certain instances in which an employer can take protected instances into account, such as restrooms based on sex, but those did not apply here.
The Court noted that there may have been a bona fide occupational qualification defense. However, the State waived the defense. The defense would require a showing "(1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job." Here, that would require a pretty strong showing of a credible threat. Almost all agreed that the case manager was overreacting a bit to the threat, especially in an environment where patient assaults can be the norm and the staff, regardless of color, know how to deal with them.
Regarding the hostile work environment claim, the claim requires pervasiveness in the workplace. The trial court found, and the supreme court agreed, that the single weekend was not severe and pervasive, especially considering the underlying circumstances.
So what does this mean? We do not really live in an age where overt discrimination happens often, but it does happen. I have seen customers my own youth request to be served by white employees (at a movie theater, no less). It can happen in any work environment. Some employers do kowtow to these customers and clients. As a matter of principal, one would hope these customers would be turned away vocally. However, reassigning a worker based on race could also expose you to costly litigation, as well.
At the end of the day, the supreme court remanded the case on the disparate treatment claim for determination of damages and attorney fees.
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