Washington Case Update: Employment Discrimination: “Pretext” Jury Instruction Held to be Unnecessary

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Employment Discrimination: “Pretext” Jury Instruction Held to be Unnecessary

From the Desk of John Kreutzer: When a fired employee accuses his employer of discrimination, the employer will likely provide legitimate reasons for the allegedly disparate treatment.  The employee must then show that the offered reasons were mere pretext, and the plaintiff’s race, national origin, religion, or other preferred classification was a substantial factor in the employer’s decision.  This can be confusing, and plaintiffs often request that jury instructions be tailored to the case to ensure the jury understands pretext.  Read on to see how the Washington appellate courts approach this issue.

Claims Pointer: In this employment discrimination case, the Washington Court of Appeals held that it was not required for the trial court to give a jury instruction on the permissible inferences the jury could draw if they believed the employer’s stated reasons for terminating the plaintiffs were mere pretext. The case underscores the Washington approach to employment discrimination, namely that the employee must simply prove that his race or other characteristic was a substantial factor in the employer’s decision.

Farah v. Hertz Transporting, Inc., No. 73268-4-I, Washington Court of Appeals, Div. I (October 3, 2016)

Hassan Farah (“Farah”) and 24 other Somali immigrants, all practicing Muslims, were employed by Hertz Transportation, Inc. (“Hertz”) as “shuttlers.”  Shuttlers move rental vehicles around the grounds, for example, from where customers return the rental vehicles to locations for cleaning or maintenance.

Hertz implemented a break policy for its shuttlers in September 2011.  The new policy required shuttlers to clock out for all personal activities, including prayer.  The policy officially went into effect on September 30, 2011.  On that day or shortly afterwards, Farah and others prayed without clocking out, and Hertz suspended them.  On...

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