Refusal to Hire an Applicant Due to Prior Opposition to Discriminatory Practices of a Prior Employer Can Expose Employer to Liability Under WLAD

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On November 9, the Washington State Supreme Court (WSSC) en banc filed its opinion on the certified question of whether “RCW 49.60.210(1) create[s] a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation in opposition to discrimination against a different employer.”  In short, the WSSC concluded yes, an applicant may state a valid cause of action under the Washington Law Against Discrimination (WLAD) when an employer refuses to hire him or her because of opposition to a prior employer’s discriminatory practices.

The Plaintiff in Zhu v. North Central Educational Service District-ESD 171, is a Chinese immigrant who worked as a Math teacher for the Waterville School District (WSD) from 2006 to 2010, until WSD sought to discharge him.  After a hearing officer concluded there was not probable cause to discharge, Zhu sued for racial discrimination and retaliation in violation of state and federal civil rights laws.  That case settled and Zhu resigned in March 2012.  Three months later he applied for a position with ESD 171, at which time the hiring committee was aware of his prior litigation against WSD.  Although he was one of three candidates interviewed, Zhu was not selected for the position.  He alleges that the candidate ultimately selected was less qualified.  Accordingly, Zhu filed a complaint in federal court claiming he was being retaliated against for having opposed WSD’s discriminatory employment practices, in violation of the WLAD.  The federal district court permitted the anti-retaliation claim under the WLAD to proceed and a jury returned verdict in favor of Zhu and awarded damages.  On ESD 171’s motion for a new trial, the district court certified the question of whether an applicant may state a claim for retaliation against a prospective employer under the WLAD.

In ruling on the certified question, the WSSC affirmed that “employer” under the WLAD includes current and prospective employers and that retaliation under the WLAD need not be limited to persons already in an employment relationship.  Because of the posture of the case, we do believe that it is significant that a jury had already returned verdict in Zhu’s favor.  Presumably, therefore, the jury had already found by a preponderance of the evidence that Zhu was more qualified than the person hired and that Zhu had been retaliated against.

This opinion has wide-reaching implications because it puts prospective employers on notice that its pre-hire background and reference checks (and other processes employed to vet applicants) can potentially uncover information that the applicant may argue was used against him or her to unlawfully deny employment.  This could result in an untenable catch-22 if not handled appropriately.  Should you have any questions as to the propriety of your pre-hire due diligence and/or what to do with information discovered, do not hesitate to reach out to us for assistance.

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