November 2001

Title VII: The Washington Law Against Discrimination in the Shadow of Federal Law 

by Katrin E. Frank

Who is a supervisor? What is a "tangible" employment action? What must an employer do to exercise reasonable care? What is prompt and corrective remedial action? When is an employee’s failure to report harassment unreasonable? What actions are on account of sex or gender? These are some of the central issues at the forefront of sexual harassment litigation today. In the process of addressing these questions, Washington courts have recently tended to follow the federal lead.

Within the category of gender discrimination, federal and state courts have identified two types of sexual harassment in the employment context: quid pro quo and hostile work environment. Broadly speaking, quid pro quo means an employer, in the person of a supervisor or higher-level manager, offers the employee a job benefit or threatens a job detriment in exchange for sexual favors; hostile work environment means that harassment on account of sex or gender is so severe or pervasive that it alters the terms and conditions of employment and creates an abusive work environment.

Over the past three years, courts at the state and federal levels have refined and modified their analysis of claims of sexual harassment. The United States Supreme Court, federal and state courts have more clearly defined the test for employer liability and have continued to refine when harassment is "on account of gender," thereby bringing conduct within the purview of the laws against discrimination.

In 1998, the U.S. Supreme Court changed the landscape of employer liability analysis for sexual harassment in two important cases interpreting Title VII, 42 U.S.C. _2000e. Under this new analysis, an employer is presumed liable for sexual harassment by a supervisory employee who has immediate or successively higher authority over the victimized person. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).

If the supervisor took a tangible employment action, the employer is vicariously liable for the conduct and may not overcome the presumption of liability. If there was no tangible employment action, the employer may overcome the presumption through proof that a) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher at 807. At all times, the burden of proof as to each element of the affirmative defense rests with the employer. EEOC Guidance on Vicarious Employer

Liability for Unlawful Harassment by Supervisors, [6/18/99] Employment Discrimination Report Vol. 12, No. 25 (BNA) (June 23, 1999) (hereafter "EEOC Guidance").

Washington courts have relied on the unique language of the Washington Law Against Discrimination (WLAD), RCW 49.60, to in some instances provide broader protections to victims of discrimination, including sexual harassment, than are available under federal law. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 404, 693 P.2d 708 (1985); Martini v. Boeing Co., 137 Wn.2d 357, 971 P.2d 45 (1999). However, where the Washington courts have not articulated a principled basis for a more expansive and independent analysis of RCW 49.60, state courts look to federal law interpreting Title VII, 42 U.S.C. _2000e for guidance. Henningsen v. Worldcom, Inc., 102 Wn. App. 828, 842, 9 P.3d 948 (2000). Recently, two divisions of the Washington Court of Appeals have adopted, in part, the federal employer liability jurisprudence as recently articulated in Faragher, supra, and Ellerth, supra. Whether the Washington Supreme Court will follow suit remains to be seen. In 1985, interpreting RCW 49.60, the Washington Supreme Court recognized a claim for sexual harassment in the form of a hostile work environment. Glasgow v. Georgia-Pacific, 103 Wn.2d 401, 693 P.2d 708 (1985). In Glasgow, over the course of several years, female employees complained to the plant manager that a co-worker used "abusive language around female employees," that he had "touched or fondled" one of the plaintiffs, and acted in an intimidating way to female employees. No corrective or disciplinary action was taken. Id. Other employees had similar problems, and at least one of them complained to the plant manager, "who did nothing." Id. at 403. The Supreme Court affirmed the trial court finding that the employees were subject to uninvited sexual harassment by a co-worker "with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment.…" Id. at 404. The Court held that "sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace." Id. at 404. The court then set out the four elements of a claim for hostile work environment:

1. The harassment was unwelcome, Glasgow at 406.

2. That the harassment was because of sex, i.e., would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff employee be the motivating factor for the unlawful discrimination. Id. at 406.

3. The harassment affected the terms or conditions of employment: Casual, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Whether the harassment at the workplace is sufficiently severe and persistent … is a question to be determined with regard to the totality of the circumstances. Id. at 406-07.

4. The harassment is imputed to the employer: Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew or should have known of the harassment, and (b) failed to take reasonably prompt and adequate corrective action. This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such a nature as to have been reasonably calculated to end the harassment. Id. at 407.

Glasgow was for many years the base-line as Washington courts reviewed claims of sexual harassment, hostile work environment. However, the fourth element of the Glasgow test, which defines when the employer is liable for the conduct, has been difficult for courts to interpret and apply, because there has been no clear statutory or judicial definition of the term "manager." There was no answer as to how high a level a manager had to be to impute liability to the employer. As a result, even before Faragher and Ellerth, the Washington Supreme Court began to move from a status test to a more duties related analysis to evaluate employer liability for managerial and supervisory sexual misconduct. See, e.g., King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160, 165 (1994)1; DeWater v. State of Washington, 130 Wn.2d 128, 921 P.2d 1059 (1996). As federal employer liability law too has evolved, Glasgow seems to have become even less authoritative than it once was.

Who Is a Supervisor?

An employer is liable for the sexual misconduct of a supervisor because the supervisor is aided by the authority delegated from the employer to employee to engage in the unlawful conduct. Faragher, 118 S. Ct. at 2290; Ellerth, 118 S. Ct. at 2269. The EEOC, the agency authorized by Congress to develop regulations to implement Title VII, defines "supervisor" as a person who, without regard to job title, (a) "has authority to undertake or recommend tangible employment decisions affecting the employee; or (b) … has authority to direct the employee’s daily work activities." EEOC Guidance Part III.A. Even if a supervisor does not have actual authority over the employee, "if the employee reasonably believed that the harasser had such power because ‘the chains of command are unclear,’ or the supervisor had ‘broad delegated powers,’ that individual would be considered a supervisor for purposes of Title VII." EEOC Guidance Part III.B. See also Durham Life Ins. Co. v. Evans, 166 F.3d 139, 154-55 (3d Cir. 1999) (individual who is one of several who can take adverse employment action against the plaintiff is a supervisor for purposes of Title VII).

Washington courts are beginning to adopt a similar analysis. In a recent Washington case, the Court of Appeals Division III chose not to use supervisory status to impute liability to the employer for the acts of a supervisor because the alleged harasser was not the plaintiff’s direct supervisor. Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 849, 991 P.2d 1182, 1184 (2000).

Hathaway was the warehouse’s front-end manager and not the plaintiff’s direct supervisor, although she was required to work with him on occasion. Id. at 849. Ms. Francom reported incidents of sexual harassment by Hathaway to her direct supervisor, the pharmacy manager, and to warehouse assistant managers, who reported it to the warehouse manager. Id. at 849. The court refused to find Costco liable for the conduct of the harasser because of his status as a supervisor "because there is no evidence [he] was ‘a supervisor with immediate authority’ over Ms. Francom." Id. at 853 n.4.

The Court of Appeals Division I also engaged in an analysis of employer liability for hostile work environment. Rejecting the "labels" test articulated in Glasgow, the court adopted a "duties" test to analyze whether an employer would be liable for supervisory misconduct. The court focused on whether the position of supervisor aided the harasser to obtain sexual favors, and whether his position aided him in controlling or trying to control the conduct of the employee. Henningsen, 102 Wn. App. 839-4.

The Court of Appeals Division III also adopted federal jurisprudence, holding, "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Sangster v. Albertson’s, Inc., 99 Wn. App. 156, 164, 991 P.2d 674 (2000), quoting Ellerth, 118 S. Ct. at 2261.

Thus, if the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment. This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action and then only if the employer can prove both elements of the affirmative defense. Sangster at 165.

However, the rule remains that if the harasser is at a high level — president, partner or corporate officer — he or she need not be in the supervisory chain to impute liability to the employer. Faragher, 118 S. Ct. 2284; Ellerth, 118 S. Ct. at 2267; see also EEOC Guidance Part VI.A and B; Francom v. Costco at 854. The Francom court observed that the language in Glasgow "clearly distinguished between on the one hand, the class of person so closely connected to the corporate management that their actions automatically may be imputed to the employer, and on the other hand, the employees, supervisors, and co-workers whose actions alone may not be imputed to the employer." Francom v. Costco, at 853-54.

Acknowledging that the case law does not "reveal any easy formula," the court engaged in a lengthy review of Washington cases which address whether management status in and of itself imputes liability to the employer. Id. at 854. After exhausting that analysis, the court turned to "familiar agency principles," citing federal and state cases which affirm that the principle "is limited to the high echelons of an employer’s officers." Id. at 855. Hathaway, as merely a mid-level manager, was not acting as Costco’s alter ego, ergo, no employer liability under that analysis. Id. at 856.

With the Faragher and Ellerth decisions, definition of "tangible employment action" has become an important focus of sexual-harassment litigation. A tangible employment action constitutes a significant change in employment status. Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2284; EEOC Guidance Part IV.B. Faragher recognized that a tangible employment action can be a job benefit or a job detriment. Faragher, 118 S. Ct. at 2284; see also EEOC Guidance Part IV.B. According to the EEOC, a tangible employment action can include hiring and firing, promotion and failure to promote, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignments. EEOC Guidance Part IV.B. See also Molnar v. Booth, 224 F.3d 593 (7th Cir. 2000) (harassment made it difficult or impossible for plaintiff to do her job and harasser gave plaintiff a negative performance evaluation causing denial of teaching certificate); see also Kohler v. Inter-Tel Technologies, 244 F.3d 1167 (9th Cir. 2001).

A disciplinary action which is part of a program of discipline is a tangible employment action because it brings the employee closer to discharge. Taking action which inhibits an individual’s ability to have opportunities for promotion is a tangible employment action. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (assigning duties with severe negative impact on earnings and depriving an individual of a private office and secretary are tangible employment actions); Bryson v. Chicago State University, 96 F.2d 912-17 (7th Cir. 1996) (depriving the person of the opportunity to have assignments which would lead to promotion is a tangible employment action similar to depriving a person of the job itself); but see Flaherty v. Gas Research Institute, 31 F.3d 451, 457 (7th Cir. 1994) (changing reporting relationship to a former subordinate which did not affect salary benefits or level of responsibility is not a tangible employment action).

Division I of the Washington Court of Appeals adopted the Faragher and Ellerth tangible employment-action analysis to analyze employer liability for the sexual harassment of an employee by a mid-level manager. Henningsen v. Worldcom, Inc., 102 Wn. App. 828, 9 P.3d 948 (2000). Ms. Henningsen had sought a promotion and her manager refused her request, saying she was not qualified. After he convinced her to sleep with him, he promoted her. He continued to seek sexual favors after the promotion and told her frequently over the course of the next several years that she "owed" him for the promotion. The Court of Appeals held that there had been a tangible employment action, the promotion. Id. at 841. Applying the Faragher and Ellerth test, the court imputed liability to Worldcom, because there was a tangible employment action; the manager had used his authority over Henningsen to obtain sex. Because there was a tangible employment action, the employer was precluded from raising an affirmative defense to liability.

Practitioners should be careful not to confuse the terms "adverse employment action" and "tangible employment action." The term "adverse action" appears in many sexual harassment cases, most often in the context of claims of retaliation. To bring a claim of retaliation for a complaint of sexual harassment, a plaintiff must prove an "adverse employment action." See, e.g., Trent v. Valley Electric Assoc. Inc., 41 F.3d 524, 526 (9th Cir. 1994). An adverse employment action is adverse treatment reasonably likely to deter employees from engaging in protected activity. Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); see also Fielder v. UAL Corp., 218 F.3d 973 (9th Cir 2000) (employer liable for co-worker retaliation which rises to level of adverse employment action). While it may be clear that a discharge or demotion is a tangible employment action and an adverse one as well, many actions may be adverse for purposes of making a prima facie case of retaliation, but do not rise to the level of a tangible employment action for purposes of imputation of liability to an employer.

As mentioned above, the Martini decision recognized that the language of the Washington Law Against Discrimination may provide greater protections to victims of discrimination than does federal law. With this in mind, the Washington courts have the opportunity to give a broader meaning to the term "tangible employment action" than have the federal courts.

The United States Supreme Court has held that same-gender harassment can be a violation of Title VII. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). As part of its analysis, the Court held that the offensive conduct need not be motivated by sexual desire to be a violation of Title VII.

The 9th Circuit recently addressed whether harassment of an effeminate man fell within the protection of Title VII. Nichols v. Azteca Rest. Enterp. Inc., 256 F.3d 864 (9th Cir. 2001). Nichols worked as a host at Azteca, a restaurant chain. He alleged he was verbally harassed by male co-workers and a supervisor because he was effeminate and did not meet their views of a male stereotype. Azteca defended on a number of grounds, one of which was that the harassment was not "because of sex." The 9th Circuit disagreed, comparing Mr. Nichols’ situation to that of the plaintiff in Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). In Price-Waterhouse, the court held that the defendant violated Title VII when the plaintiff was denied partnership in an accounting firm because she did not meet a female stereotype. Similarly, the 9th Circuit found that Nichols was harassed because he did not meet a male stereotype, i.e., he did not act as a man "should" act. Following the Price-Waterhouse rule that bars discrimination based on sex stereotypes, the court found that Nichols endured harassment "on account of sex." Washington law, too, requires that the plaintiff prove the hostile conduct was on account of sex. See Glasgow at 406; Herried v. Pierce City Public Transport, 90 Wn. App. 468, 474-75, 957 P.2d 767 (1998) (hostile, intimidating conduct towards everyone with no sexual content to acts or words does not violate RCW 49.60); Kahn v. Salerno, 90 Wn. App. 110, 951 P.2d 321 (1998) (question of fact if word "bitch" and other words were "because of sex").

More recently, Division III analyzed the term "because of gender" in Sangster v. Albertson’s, Inc., supra. Ms. Sangster sued Albertson’s because of sexual harassment by a mid-level manager. The conduct included comments to plaintiff about her sex life and wearing of tighter and/or shorter shorts; telling her she looked great in a bathing suit; calling her "honey," "sweetie" and "little girl"; and making sexually suggestive and demeaning remarks. He told her she should date older men and join his mile-high club. He also made numerous statements and sexually charged comments at staff meetings, such as, "Damn, that makes my titties hard"; "Try it, it will make your pecker stand out." Sangster, 99 Wn. App. at 158, 159.

According to the court, several of the comments Ms. Sangster listed did not fulfill the element of "because of her gender," because the comments were made to a group of males and females, were not directed to her, and were not motivated by her sex. Id. at 161-62. Nevertheless, the court acknowledged that a number of the comments directed to her, such as telling her to wear shorts a size smaller, asking her to try on a dress in front of him, asking about her sex life, and telling her she should join his mile-high club, were inappropriate comments about her sex life. The court also found that comments involving her dating older men, and calling her "honey," "sweetie" and "little girl" were definitely based on her gender. "The sexual nature of these incidents supports a reasonable inference that the conduct occurred because she was female." Id. Because of those remarks, Ms. Sangster met the "because of gender" element of her prima facie case.

To prevail on a claim of sexual harassment when the harassment is by co-workers or a supervisor who does not have immediate or successively higher authority over the plaintiff, a plaintiff must show he or she was subject to a hostile environment. The plaintiff must present evidence the workplace was "both objectively and subjectively offensive." Azteca, 254 F.3d at 871. The plaintiff must show that a reasonable person would find the environment hostile or abusive, and that he or she did so perceive it. Id. at 871-82. And, the conduct must be "because of sex." Id. at 872.

Whether an environment is so hostile or abusive as to violate Title VII requires an analysis of all the circumstances, including the frequency of the conduct, its severity, how physically threatening or humiliating it is, and whether it interferes with an employee’s work. Azteca, 256 F.3d at 872, citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). In Azteca, the harassment, name-calling and abuse occurred at least weekly and often several times a day for almost four years. The court found that a reasonable man would have found the "sustained campaign of taunts … designed to humiliate and anger him sufficiently severe and pervasive to alter the terms and conditions of his employment." Id. at 873. Mr. Nichols’ complaints to the restaurant manager and to Azteca’s HR director about the extent and nature of the verbal abuse showed he perceived his workplace to be hostile. Id. He was therefore able to show an objective and subjective hostile work environment. Id. at 873.

The Washington courts continue to use the standard set by Glasgow to assess whether conduct creates a hostile environment. Washington cases also look at the totality of the circumstances to assess whether sexual harassment creates a hostile environment for purposes of WLAD. See Glasgow, 103 Wn.2d at 406; Sangster at 162-63. The court will consider the frequency, severity, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with the employee’s work performance. Sangster at 162, quoting Harris v. Forklift Sys., Inc., 510 U.S. at 22. "Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms and conditions of employment to a sufficiently significant degree to violate the law." Francom at 857-58. "Isolated incidents (unless extremely serious) will not amount to discriminatory changes in ‘terms and conditions of employment.’" Sangster at 162-63, quoting Faragher, 118 S. Ct. at 2283.

"So long as the environment would reasonably be perceived and is perceived as hostile or abusive," the conduct need not be so severe as to be psychologically injurious. Francom at 858. In its analysis of whether Costco had constructive or actual knowledge of the harassment, the Francom court reviewed the pervasiveness of some of the conduct at issue and whether it rose to the level of a hostile environment. The reported conduct included inappropriate touching of one person at an off-work party; a complaint by a female manager that she was uncomfortable working with the harasser; and a complaint by a third woman of inappropriate sexual comments by the harasser. Francom at 857. The court did not consider the "incidents to demonstrate the existence of a pervasive abusive working environment." Id. at 858. As a result, reports of such conduct did not put Costco on notice of a hostile environment.

In Sangster, the plaintiff complained of continuous verbal sexual harassment over a period of years. See discussion, supra. The court found that she presented sufficient evidence to create an issue of fact "because reasonable persons could reach different conclusions as to whether the harassment altered the conditions of employment." Id.

When there is no tangible employment action, the employer may raise a defense to a claim of sexual harassment by proof that (a) it has exercised reasonable care to prevent and promptly correct sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Faragher at 807. To prove its affirmative defense, the employer must show that it has a policy against sexual harassment; that the policy has been circulated to all employees; that employees, including managers, have received training about the policy; and that the policy explains what conduct is covered, how to complain about offensive conduct, and assures protections from retaliation. See generally, EEOC Guidance Part V.C. See also Kohler v. Inter-Tel Technologies, 244 F.3d 1167 (9th Cir. 2001); Montero v. AGCO Corp., 192 F.3d 856 (9th Cir. 1999). The existence of a policy will assist employers to meet the first prong of the affirmative defense, but is not sufficient in and of itself the policy it is not enforced. Hurley v. Atlantic City Police Department, 174 F.3d 95 (3d Cir. 1999).

Assuming success on the first prong of the affirmative defense, the employer must also show that the plaintiff employee unreasonably failed to take advantage of the opportunities offered to avoid or stop the harassment. See Kohler, supra. In this context, the employer must show that it has an effective policy that employees are aware of, and that when an employee makes a complaint there is a prompt investigation; prompt, corrective and remedial action; and no retaliation or further harrassment against the complaining employee.

To overcome the employer’s affirmative defenses, the plaintiff may argue that he or she did not know of the harassment policy; did not receive training; that individuals who made complaints were retaliated against, frozen out, forced to quit, involuntarily transferred, or were treated in other ways that chilled complaints by other employees, causing them to fear making a claim of harassment (see discussion, supra, re retaliation); and/or that the corrective action was not prompt enough and/or effective enough to meet the twin goals of stopping the current harassment and deterring future harassment. Azteca, 256 F.3d at 875-76.

Even where there is a policy in place, an employer is liable for sexual harassment by supervisors or co-workers if the employer has actual or constructive notice of the conduct and fails to "take adequate remedial measures in order to avoid liability." Azteca, 256 F.3d at 875, 877. Such measures must include remedies that "are reasonably calculated to end the harassment and deter future harassment." Id. at 875. The court will look at the reasonableness of the remedy to evaluate whether it "1) stop[s] harassment by the person who engaged in the harassment, and 2) persuades potential harassers to refrain from unlawful conduct." Azteca at 875. "When an employer undertakes no remedy or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment." Id. at 875-76.

In Azteca, the court found that the employer made no effort to investigate Nichols’ complaints, did not discuss allegations with alleged perpetrators, did not demand that the unwelcome conduct stop, and did not threaten more serious discipline if the harassment continued. Azteca at 876. In effect, "by conditioning its response on Nichols’ reports of further harassment, Azteca placed virtually all its remedial burden on the victimized employee." Azteca at 876. Azteca failed to take prompt corrective remedial action once on notice of the harassment and was therefore liable for the conduct. Washington courts follow a similar analysis. See Glasgow at 103 Wn.2d 401. See also Francom v. Costco, supra, 98 Wash. App. 845.

In Francom, the plaintiff was dissatisfied that the discipline imposed by the employer was not severe enough. Costco had transferred the harasser to a new work site several months after the reported harassment. However, the delay occurred because the harasser was on disability leave. The court rejected Ms. Francom’s complaint that the company was liable for the conduct because the discipline was delayed. Rather, the court held that Costco’s corrective action "was reasonable and adequate as a matter of law," even though it was delayed. Id. at 856-57. "Costco was required to take only such action as would be reasonably likely to prevent further harassment," Id. at 857. According to the court, that the harassing conduct was never repeated after the plaintiff’s complaints demonstrates the discipline was reasonable and adequate. Id.

The Francom court adopted the Faragher and Ellerth approach to employer liability and employer affirmative defenses. Francom v. Costco, supra. Ms. Francom reported her own complaints of harassment to her immediate supervisor. He was aware of a similar problem another employee had with the same alleged harasser, but took no action to prevent further harassment. Francom at 858. Rejecting some of the federal cases cited by defendants holding that harassment must be reported to somebody at a sufficiently high level, the court adopted a "more logical approach to when an employer has knowledge of the harassment." Id. at 859.

The information must either (1) come to the attention of someone who (a) has under the terms of his employment, (b) is reasonably believed to have, or (c) is reasonably charged by law with having a duty to pass on the information to someone within the company who has the power to do something about it; or (2) come to the attention of such someone. Id. (citation omitted). The court put the onus squarely on the employer:

If the company fails to establish a clearly marked, accessible, and adequate channel for complaints, judicial inquiry will have to turn to who in the company the complainant reasonably believed was authorized to receive and forward (or respond to) a complaint of harassment.

Francom at 860. The standard is whether the employee made a complaint or brought information to the attention of someone who, either through his or her duties or stature in the company, could do something about the complaint or refer it to somebody who could do something about it. Id. at 860.

The court held that Ms. Francom had appropriately reported to her supervisor, as authorized by the handbook. Id. at 861. This report gave Costco "constructive" knowledge of Mr. Hathaway’s conduct in July 1993. Id. Because his conduct continued until October 1993, a fact-finder could conclude that Costco failed to take reasonably prompt corrective action. Id.

In Sangster, Albertson’s had a policy prohibiting sexual harassment. Ms. Sangster did not follow that policy precisely by timely reporting the harassment by the store director. Instead, after two years of harassment she decided to step down from her deli service manager position, and only then did she report the harassment. Id. at 166. The court refused to follow the fourth element of the Glasgow test to impute liability to Albertson’s for the manager’s conduct. Rather, the Sangster court found Glasgow was not controlling because Glasgow did not attempt to articulate defenses an employer could raise to liability or the effect of the failure to use an anti-harassment policy. Id. at 166-67. Nevertheless, because plaintiff’s claims were reinstated, as a result of the appeal and the case remanded for trial, the court declined to conclude whether Albertson’s would be able to successfully meet its burden on the affirmative defenses. Id. at 167.

Different types and amounts of damages are available under federal and state law.2 A plaintiff may recover past and future wage-loss and compensatory damages, including emotional distress damages, under both federal and state law, and may bring state and federal claims at the same time. A prevailing plaintiff is also entitled to recover costs and attorney’s fees. RCW 49.60.030; 42 U.S.C._2000e-5(g)(2)(B)(i); 42 U.S.C._1988. The types of damages recoverable under RCW 49.60.180(3) are not limited by the statutory scheme, only by proximate cause. RCW 49.60.030(2); Martini v. Boeing Co., 137 Wn.2d 371, 357 971 P.2d 45 (1999). A plaintiff may also obtain injunctive relief under both statutes.

In addition to wage-loss and compensatory damages, Title VII provides for punitive damages. 42 U.S.C._1981a (amended 1991). To obtain punitive damages a plaintiff must prove that the employer acted with malice or with reckless indifference to a plaintiff’s federally protected rights. Kolstad v. ADA, 527 U.S. 526, 536, 119 S. Ct. 2118, 144 L. Ed. 2d 494 (1999). The amount of punitive damages a plaintiff may recover is capped, depending on the size of the employer. 42 U.S.C. _1981a(b)(3). These damages include future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. Front pay is not an element of compensatory damages. Pollard v. E.I. du Pont de Nemours & Co.,_U.S._, 121 S. Ct. 1946, 1949, 150 L. Ed. 2d 62 (2001).

As federal law has evolved, recent Washington Court of Appeals’ decisions have looked to and relied on the recent analysis of Title VII to interpret RCW 49.60. As a result, lawyers must continue to keep informed of developments on the federal level, at least until the Washington State Supreme Court once again recognizes the difference between state and federal statutes, and reasserts an independent analysis of the Washington Law Against Discrimination.

NOTES

1. Under Washington law, the definition of "employer" includes any person acting in the interests of the employer. RCW 49.60.040. Based on this language, the Washington Supreme Court has recently held that an individual acting in the interests of an employer may be subject to individual liability for acts of harassment and discrimination. See Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d (2000). Because federal law defines "employer" differently, 42 U.S.C._2000e, most federal courts have held an individual employee will not be personally liable for violations of Title VII.

2. To ensure availability of a claim under Title VII, in Washington a plaintiff must file a complaint with the EEOC within 300 days of the discriminatory act. While a claim may include conduct beyond the 300-day period, it is best to file a complaint with the EEOC as soon as practical after an act or acts of discrimination or retaliation.

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