Rcw 49.60, Age Discrimination, Proof of Pretext, Stray Comments.

Scrivener v. Clark College

181 Wn.2d 439, 334 P.3d 541 (2014)

This unanimous decision may impair any defense based on inadmissibility of supposed ‘stray comments’ by a decision maker. And it clarifies what a plaintiff needs to do in order to establish that the employer’s stated non-discriminatory reason for an adverse employment decision was a pretext for discriminatory motivation.

Plaintiff was an adjunct instructor at the college and 55 years old when she sought a tenure track teaching position. ¶ 4. She made it through the initial screening process and was one of four finalists referred to the college president and a vice president for interviews. ¶¶ 5- 6. She was informed she was not selected. ¶ 6. Two of the final four were chosen and they were each under the age of 40. Among other things, the college stated, in defense, that plaintiff’s exuberance and passion for teaching could have been “off-putting by some passive students because of such an up-front style.” ¶ 10.

The college’s president earlier gave a speech in which he said there was a “glaring need” for younger talent. ¶¶ 8, 28. He also stated publicly that there was no need for teaching experience for the positions sought by plaintiff. ¶ 8.

The decision, by Justice Wiggins, reversed a summary judgment for the college, affirmed by the Court of Appeals.

First, the decision notes that a plaintiff in an action under WLAD for employment discrimination need not prove that unlawful motivation was the ‘determining’ factor. Rather, the standard under the statute is whether discriminatory motives were a ‘substantial’ factor in the employment decision. ¶¶ 13-14 and WPI 330.01.01. The opinion also observed that “summary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.” ¶ 15. [This observation of a unanimous Court should be considered with Justice Gordon-McCloud’s observation in her opinion for the Court in Kumar v. Gate Gourmet, Part II.D, supra, that Washington’s civil rights statutes deviate from their federal analogs only to provide “greater employee protections.”.]

The decision next travels the familiar ground of the McDonnell Douglas shifting burden framework. ¶ 20. Here, the court notes that it is not necessary to disprove the employer’s stated non-discriminatory reason for the adverse employment decision. ¶ 21.

The employer may be motivated by multiple reasons, some legitimate and some not. Id. The plaintiff’s burden is to establish by a preponderance that discriminatory motivation was “a substantial factor” in the decision, “not the only motivating factor.” Id. The Court took to task the decision of the Court of Appeals in this case which omitted in its analysis of pretext that discriminatory motive might be a substantial factor in the decision along with legitimate reasons. ¶ 22. In doing so, the decision noted that other Court of Appeals decisions made this same error. ¶ 23.

In the Court of Appeals, the college president’s statement about the need for ‘younger talent’ was dismissed as a stray remark and did not give rise to an inference of discriminatory motivation. ¶ 29. Here, that was deemed to be circumstantial evidence of discriminatory intent. Id. In support of that, the decision cited to Reid v. Google, Inc., 50 Cal. 4th 512, 538-46 (2010) where the California Supreme Court rejected the notion that supposedly stray remarks are irrelevant. ¶ 29 and fn.3.