Don’t Let Your Former Employer “Blacklist” You

Posted on May 31, 2018 by Shannon L. Trivett

The Washington Law Against Discrimination makes it unlawful for an employer to “discharge, expel, or otherwise discriminate” against a job applicant or employee on the basis of that person’s protected characteristic such as race, age, or sex. Likewise, the WLAD also makes it unlawful for an employer to do the same because he or she has opposed or complained about such unlawful discrimination. This is known as retaliation.

Until recently, employees who complained about an employer’s discrimination were only protected from retaliation from their current employer. Put differently, if an employee who complained about discrimination quit their job and sought a new position with a different employer, their prospective employer could refuse to hire them based solely the fact that they had complained about discrimination at their prior job.

On November 9, 2017, however, the Washington State Supreme Court issued its ruling in Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171which expanded an employee’s protection from retaliation.

In Zhu, the plaintiff, a math teacher, sued his employer, the Waterville School District, for racial discrimination. The case settled and the plaintiff left his employment with Waterville. He then applied to work for the North Central Educational Service District (“the District”). The plaintiff was one of the top three candidates, but the District ultimately hired a less-qualified candidate. Zhu then sued the District for retaliation and obtained a favorable jury verdict at trial.

The District appealed, arguing that the WLAD did not create a cause of action for retaliation against a prospective employer. In a unanimous decision, however, the Washington State Supreme Court disagreed, holding that the definition of “employer” under the WLAD is not limited to an individual’s current employer for purposes of a retaliation claim and that the WLAD prohibits all forms of discrimination by employers in their capacity as employers, which includes hiring.

Thus, as a result of the Supreme Court’s ruling, it is now unlawful for any employer to refuse to hire an otherwise qualified candidate because he or she complained about or otherwise opposed discrimination by a prior employer.

If you think you have been the victim of retaliation by an employer, it is vital to consult with an employment attorney to determine if you have a case. Please contact Shannon Trivett at Lasher Holzapfel Sperry & Ebberson PLLC to set up a consultation to discuss your specific situation.