It seems clear to this Court that an employer that retaliates against
an employee because of the employer's suspicion or belief that the
employee filed a[ ]. . . complaint has as surely committed a violation of
[the statute] as an employer that fires an employee because the
employer knows that the employee filed a[ ] . . . complaint. Such
construction most definitely furthers the purposes of the Act generally
and the anti-retaliation provision specifically.
Reich, 32 F.3d at 368. "It is well recognized that WLAD . . . relies heavily on private
individuals for its enforcement. This reliance would be unrealistic, to say the least, 'if
this court does not provide them some measure of protection against retaliation.'" Jin
Zhu V. N. Gen. Educ. Sen/. Dist.—BSD 171, 189 Wn.2d 607, 622-23, 404 P.3d 504
(2017)(citation omitted)(quoting Allison, 118 Wn.2d at 94). Restricting the application
of WI-AD's antiretaliation provisions to instances of actual knowledge results in
inconsistent protection of employees:
It would be a strange rule, indeed, that would protect an employee
discharged because the employer actually knew he or she had engaged
in protected activity but would not protect an employee discharged
because the employer merely believed or suspected he or she had
engaged in protected activity.
Reich, 32 F.3d at 368. Employers are not limited to retaliation decisions based on
information they actually know to be true. Id. Instead,"common sense and experience
16
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Cornwell(Dawn) v. Microsoft Corp.
No. 94846-1
establish that employers also make employment decisions on what they suspect or
believe to be true." Id.
Thus, construing WLAD "to protect employees from adverse employment