Washington Court Holds Employers Can Retaliate Against Indepedent Contractors
An independent contractor truck driver named Larry Currier heard another driver “yell … at a Latino driver … ‘[h]ey, f**ing Mexican, you know why you have to go to Portland and I don’t? Because f**ing Mexicans are good at crossing borders.’” Currier also reports previously having heard other racially motivated slurs and comments directed at a number of minorities who work for the same trucking company. The truck driver who overheard the racial slurs reported them to NSI’s quality assurance manager.
Two days later NSI terminated his contract.
He subsequently filed suit against NSI for retaliation under the Washington Stare Law Against Discrimination (“WLAD”), asserting his contract was terminated because he had reported discriminatory conduct.
In its defense, Northland Services Inc. (“NSI”) argued that, “as an independent contractor, [Currier] … was not an “employee” within the meaning of the WLAD and that it had “terminated … [the contractor’s] contract because of poor performance and disruptive behavior … [and therefore did not fire the contractor for discriminatory behavior].”
The Washington Court of Appeals, Division One, however, found that the WLAD applies to this case despite the fact that Currier was not an employee of NSI. In so doing, the Court upheld a trial court decision that NSI was liable for the retaliatory discharge of the independent contractor under the WLAD. The decision noted that the WLAD was enacted by the state legislature to “eliminate and prevent discrimination.” “The WLAD … extends broad protections to ‘any person’ engaging in statutorily protected activity from retaliation by an employer or ‘other person.’”
The court noted that the Washington Supreme Court had previously held in Marquis v. City of Spokane that “under the broad protection [of the WLAD] … an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.” The court also stated that “Washington cases have … held that a plaintiff need not prove the conduct opposed of was in fact discriminatory but need show only that he or she reasonably believe it was discriminatory.”
The court stated that it did “not find credible the claim that … [the contractor’s complaint to NSI] had no effect on the decision to terminate … [the contractor’s] contract.” “Substantial evidence supports the court’s conclusion that … [the contractor’s] complaint ‘tipped the scales toward termination.’”