Wash. Supreme Court published opinion — 948461.pdf

Citation: Wash. Supreme Court published opinion — 948461.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/948461.pdf ↗

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actions because they are suspected of having engaged in protected activity is

consistent with the general purposes of the Act and the specific purposes of the anti-

retaliation provisions." Id.(emphasis added); see also Brady v. Autozone Stores, Inc.,

188 Wn.2d 576, 583, 397 P.3d 120 (2017) (recognizing that because a policy

"ultimately provides greater protection for workers, it is more in tune with other

Washington case law addressing employee rights"). As a result, as long as an

employee presents evidence "suggest[ing] a causal connection between the protected

activity and the subsequent adverse action sufficient to defeat summary judgment,"

that employee has made a prima facie case of retaliation under WLAD. Reich, 32 F.3d

at 367.

Microsoft and amid curiae the Association of Washington Business and the

Chamber of Commerce of the United States of America contest adoption of the "knew

or suspected" standard. They argue that adopting the standard leads to strict liability

for employers, eliminates the causation element of a retaliation prima facie case, and

invites speculation into the summary judgment phase. Of these arguments, none is

persuasive.

The "knew or suspected" test does not lead to strict liability or eliminate the

requirement that a retaliation be intentional. Instead, the test eliminates the right of

employers to intentionally retaliate against employees that they suspect but do not

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cornwell(Dawn) v. Microsoft Corp.
No. 94846-1

actually know to have taken protected action. An employee must still produce

sufficient evidence that his or her protected activity was a substantial factor in the