In a retaliation case brought under the Washington Law Against Discrimination (WLAD), the Washington Supreme Court adopted a favorable standard for a retaliation plaintiff to prove the employer’s knowledge of protected conduct.  The well-reasoned decision in Cornwell v. Microsoft holds that a plaintiff can establish retaliatory discharge by showing that the employer suspected that the plaintiff had previously engaged in WLAD-protected activity.  The plaintiff need not prove actual knowledge of the protected activity.

Cornwell’s Retaliation Claim

Dawn Cornwell worked at Microsoft for close to sixteen years until Microsoft terminated her employment during a layoff based on recent poor performance reviews. She sued Microsoft alleging that Microsoft terminated her employment because she brought a sexual harassment claim seven years prior to the layoff.

Cornwell alleged that Microsoft terminated her employment on the basis of pretextual performance reviews driven by the reviewers’ knowledge of her sexual harassment claim.  She also alleged that during the year in which Microsoft terminated her employment, several managers disagreed with the decision to rate her performance poorly.  The trial judge granted Microsoft’s motion for summary judgment on the ground that Cornwell failed to demonstrate that the decision-makers knew that Cornwell filed a sexual harassment complaint.

Washington Supreme Courts Adopts “Knew or Suspected”Standard

On appeal, Cornwell asserted that the trial court applied an overly restrictive standard and urged the court to adopt either a “knew or suspected” standard or a “general corporate knowledge” standard. Microsoft opposed a broader standard on the ground that it would impose strict liability on employers, and urged the court to adopt an actual knowledge standard requiring the plaintiff to prove that the decision-maker had actual knowledge of the employee’s protected conduct.

The Washington Supreme Court reversed and adopted the “knew or suspected” standard, which encompasses cases in which the employer suspects that an employee engaged in protected conduct.  Under this standard, a plaintiff can prove causation where a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.

Cornwell relies upon the reasoning in Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003), a Ninth Circuit decision holding that a supervisor’s suspicion that a particular employee was the one who filed a sexual harassment report was enough to survive summary judgment after the supervisor fired the suspected employee. The Ninth Circuit reasoned that “[i]t is frequently impossible for a plaintiff in [the employee’s] position to discover direct evidence contradicting someone’s contention that he did not know something.” Id. at 1114. Thus, “[w]hat-did-he-know-and-when-did-he-know-it questions are often difficult to answer, and for that reason are often inappropriate for resolution on summary judgment. . . .”  Id. at 1113-14.  In adopting a “knew or suspected” standard, the Washington Supreme Court eliminates the right of employers to intentionally retaliate against employees that they suspect but do not actually know engaged in protected conduct.

Applying the “knew or suspected” standard, the court held that Cornwell could prove retaliation because both of the managers that gave her low performance ratings knew that Cornwell took prior legal action against Microsoft.  The managers did not know the specific nature of the lawsuit — i.e., that it involved an allegation of discrimination in violation of WLAD.  Under Cornwell, “[a] decision-maker need not have actual knowledge about the legal significance of a protected action. Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.”

Implications for Retaliation Plaintiffs

As the Washington Supreme Court recognized, it is easy for a supervisor or manager taking a retaliatory personnel action to disclaim actual knowledge of protected conduct. Cornwell effectuates the remedial purpose of Washington’s anti-retaliation statute by protecting employees from adverse employment actions because they are suspected of having engaged in protected activity.  To avoid summary judgment, a retaliation plaintiff should obtain evidence that supports a reasonable inference that the decision-maker’s knowledge of the employee’s protected conduct (e.g., reporting discrimination to Human Resources) was a substantial factor in the adverse action.