Washington State Supreme Court Issues Decision Strengthening Employee Protections Against Retaliation
On November 29, 2018, in an 8-1 decision, the Washington State Supreme Court revived a four-year-old retaliation lawsuit brought by a former employee (Dawn Cornwell) against Microsoft. As background, Ms. Cornwell had previously settled a gender-discrimination dispute with Microsoft and as part of that settlement the parties agreed that Ms. Cornwell would no longer report to the supervisor who she alleged had discriminated against her. Seven years later, Ms. Cornwell’s new manager put her in a situation that would require her to report to that supervisor and then retaliated against her after Ms. Cornwell explained she couldn’t report to her former supervisor due to a confidential settlement agreement. Her manager gave her the lowest possible score on her performance review despite the fact that she received positive reviews from her peers that year and had nothing but good performance ratings and promotions during her previous years working for Microsoft. She was then laid off as part of a larger reduction in force and, after applying for 170 different positions at Microsoft, was told she couldn’t be rehired because her performance rating was so poor.
At issue before the Supreme Court was whether Ms. Cornwell had presented enough evidence that Microsoft knew that she had engaged in protected activity by filing a discrimination lawsuit. The Court held that because the manager was aware of the existence of a prior suit by Ms. Cornwell under the Washington Law Against Discrimination, Microsoft had sufficient knowledge that Ms. Cornwell had taken a protected action even if her manager did not know the underlying facts supporting Ms. Cornwell’s claim. Moreover, the Court held that there was a reasonable inference of retaliation given Microsoft’s knowledge of the lawsuit and Ms. Cornwell’s poor performance rating and termination that followed shortly thereafter.
It is important to note that in this decision the Court adopts the “knew or suspected” standard for evaluating retaliation claims, reasoning that doing so “protect[s] employees from retaliation to the fullest extent possible….” As a result, employers may now be found liable for a supervisor taking adverse action against an employee even if the supervisor only suspects – but does not know – that the employee engaged in protected activity. For example, an employer may be liable if its supervisor is aware of a complaint and then takes adverse action against the employee she or he suspects filed the complaint.
The takeaway from this case is that employers need to implement policies and procedures to ensure that (1) they are doing their best to maintain confidentiality after an employee brings a claim against the employer, and (2) they involve legal counsel before taking adverse action against an employee who’s previously engaged in protected activity, even if that protected activity is years old.