when based on a person's protected characteristics, including denying the person
membership to the union, expelling the person from the union, and discriminating
against the person in the union's duty ofrepresentation.
Third, RCW 49.60.200 defines practices by employment agencies that are
unfair when based on a person's protected characteristics, including refusal to refer
the person for employment and inquiring into the person's protected characteristics
in connection with prospective employment.
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Jin Zhu V. ESD 171, No. 94209-9
Fourth, RCW 49.60,210 provides that it is an unfair practice for any
employer, labor union, or employment agency to discriminate against any person
for opposing practices forbidden by WLAD.
This structure strongly suggests that "otherwise discriminat[ing]" for the
purposes of RCW 49.60.210(1) must, at a minimum,include the preceding
explicitly specified unfair practices, one of which is an employer's refusal to hire.
RCW 49.60.180(1).
However, based on its reading of Washington case law,ESD 171 contends
that RCW 49.60.210(1) prohibits only an "adverse employment" action or decision
that affects the terms or conditions of an established employment relationship.
Def.'s Opening Br. at 37. Other published Washington cases considering
retaliatory discrimination by employers have used such language, but they were
clearly applying the statute in the context of existing employment relationships.
E.g., Allison, 118 Wn.2d at 86; Boyd, 187 Wn. App. at 6; accord 6A WASHINGTON
Practice: Washington Pattern Jury Instructions: Civil 330.05, at 358-59
(6th ed. 2012). No published Washington case has ever considered, much less