Outlook for Washington State Litigation in Terms of Employment Law, Privacy Law and Jury Selection

Employment law and privacy law are anticipated to fuel Washington state litigation in 2025. First, Washington is one of the few states to have comprehensive privacy legislation (including a private right of action) aimed at protecting against the unauthorised use or storage of private health-related information. Second, on the employment front, litigation will continue owing to recent state legislative enactments together with interpretive guidance from state courts and administrative agencies. Finally, added care in jury selection in Washington state courts is required, with Washington being one of the few states in the USA to enact a court rule to preclude racial bias in juror selection.

Privacy law perspective

On 31 March 2024, Washington state’s My Health My Data Act (Revised Code of Washington (RCW) 19.373 et seq) came into force. The My Health My Data Act is a comprehensive consumer health privacy law imposing significant notice and consent provisions before a regulated entity may “collect” or process health and health-related data from a consumer in Washington state.

The My Health My Data Act has the potential to spur significant litigation, owing to its inclusion of a private right of action via Washington state’s Consumer Protection Act (CPA) (RCW 19.86 et seq), as well as the specific finding that the privacy of a consumer’s health data is a “fundamental right” under the Washington Constitution (RCW 19.373.005). The Act is unique and ground-breaking in its efforts to incorporate European Data Protection concepts into the realm of US health data privacy legislation.

Broad scope of entities subject to My Health My Data Act

The My Health My Data Act applies to “regulated entities”, which are defined as any legal entity that:

• conducts business in Washington state or produces or provides products or services that are targeted at consumers in Washington state; and
• alone, or jointly, determines the purpose and means of collecting, processing, sharing, or selling consumer health data.

Regulated entities are not limited to Washington-based businesses. However, the definition does exclude governmental agencies and those who process consumer health data on behalf of governmental agencies.

Broad scope of data covered and those protected by My Health My Data Act

The My Health My Data Act applies to “consumer health data”, which is an intentionally broad term. The definition includes “personal information that is linked or reasonably linkable to a consumer and that identifies the consumer’s past, present or future physical or mental health status”. The Act continues by including 13 examples of what is considered consumer health data, including gender-affirming care, reproductive or sexual health information, biometric data, genetic data, and location information that reasonably indicates a consumer’s attempt to acquire or receive health services.

Importantly, the My Health My Data Act brings into its ambit general consumer data that is obtained through the use of algorithms or machine learning with the purpose of using such data to associate or identify a consumer with protected health data. Exemptions do exist for specific types of data, such as data protected under the Health Insurance Portability and Accountability Act (HIPPA), certain hospital data, and data de-identified in compliance with HIPAA, among other categories. The exemptions also include data originating from and indistinguishable from information maintained by a HIPAA-covered entity or business associate.

The definition of “consumer” is purposefully broad under the My Health My Data Act. It is defined to include not only Washington residents but also a “natural person whose consumer health data is collected in Washington”. Notably, the term “collect” is also broadly defined to include “buying, renting, accessing, retaining, receiving, acquiring, inferring, deriving, or otherwise processing consumer health data in any manner”.

Given these broad definitions, the My Health My Data Act reaches far beyond Washington state.       

Compliance

The My Health My Data Act creates privacy rights for consumers, such as the right to access and delete ‒ as well as withdraw consent for the collection, sharing or sale of ‒ applicable consumer health data.

The My Health My Data Act requires regulated entities to provide a standalone consumer health data privacy policy. The policy must be accessible via a separate and distinct link on the entity’s home page, which is defined broadly to cover every web page, and the policy must not include irrelevant information that is not required by the Act. In other words, regulated entities must now post a separate health data privacy policy in addition to a general privacy statement. Although the content of the required notice is not unique, the My Health My Data Act uniquely requires entities to name specific affiliates that will have access to consumer health data, thus requiring regulated entities to publicise their internal data flows in a novel manner.

The My Health My Data Act imposes three separate consent and authorisation requirements, as follows.

• First, the Act requires regulated entities to ask consumers to opt in before collecting consumer health data, unless the collection is necessary to provide a product or service the consumer has requested.
• Second, the Act requires a separate and distinct consent to “share” consumer health data. Sharing is defined uniquely, in that it means any disclosure or making available of protected data, regardless of whether there is monetary or other valuable consideration.
• Finally, “selling” of protected data is highly restricted. For the sale of protected data, regulated entities must obtain a signed authorisation meeting several specific formal requirements.

Geofencing is also prohibited under the My Health My Data Act with regard to any facility that provides in-person healthcare services where the geofence is used to identify or track consumers seeking healthcare services, collect consumer health data, or send notifications, messages or advertisements to consumers related to their protected data or healthcare services.

A consumer has the right to confirm whether a regulated entity is collecting, sharing or selling their protected data, including a list of all third parties and affiliates with whom the regulated entity has shared or sold such data. The My Health My Data Act provides the consumer with the right to delete, which is an absolute right to delete. A consumer can request deletion at any time and the right requires deletion of data from all parts of the regulated entity’s network, including archived or back-up systems and flow-down communications to affiliates, processors and other third parties with whom the regulated entity shared covered data within specified timeframes. Regulated entities may thus need to consider changes to IT architecture and systems to accommodate the novel deletion requirements of the Act.

Civil cause of action

In addition to providing the Attorney General a right of action under the My Health My Data Act, the Act also provides a private right of action to consumers pursuant to the CPA. Therefore, the My Health My Data Act ‒ by way of the CPA ‒ allows for the recovery of attorney’s fees and treble damages up to USD25,000 for violation of its provision. Furthermore, by providing a specific finding that a violation of the My Health My Data Act is an “unfair or deceptive act in trade or commerce and an unfair method of competition”, the Act reduces the proof necessary for sustaining a damages claim under the CPA.

Employment law perspective

Litigation related to new pay transparency law

Effective as of 1 January 2023, updates to Washington state’s Equal Pay and Opportunities Act saw Washington join several other states in requiring employers to disclose in each job posting the opening wage scale or salary range of the job, along with a general description of all benefits and other compensation offered (RCW 49.58.110). The law applies to all employers with “15 or more employees, engaging in any business, industry, profession, or activity in Washington”. Additionally, the law enables a “job applicant or an employee” to bring a civil action for:

• actual damages;
• statutory damages equal to the actual damages or USD5,000, whichever is greater;
• interest of 1% per month on all compensation owed;
• costs and reasonable attorneys’ fees; and
• reinstatement and injunctive relief.

Since the new pay transparency law took effect, more than 100 class actions alleging violations of the law have been filed in Washington state and federal courts. In some of the federal lawsuits, employers sought to dismiss the lawsuits for lack of Article III standing, arguing that the plaintiffs were not “bona fide” applicants for the posted position and did not suffer any injury due to the alleged insufficient disclosure.

In one of the earliest orders on such a motion to dismiss, Western District of Washington District Judge Barbara Rothstein granted a motion to dismiss for lack of Article III standing, concluding that “a violation of the statutory provision at issue here ‒ a job posting with no compensation information included ‒ is a technical or procedural violation that by itself does not manifest concrete injury but requires a “bona fide” applicant before there is a risk of harm” (Floyd v Insight Glob LLC, No 23-CV-1680-BJR, 2024 WL 2133370 (WD Wash 10 May 2024)). She went on to conclude that a plaintiff “must allege, at minimum, that they applied for the job with good-faith intent, and as such became personally exposed to the risk of harm caused by the violation”.

Other pay transparency lawsuits pending in the Western District of Washington have been remanded back to state court for similar reasons. Examples include Partridge v Heartland Express Inc of Iowa, No 3:24-CV-05486-DGE, 2024 WL 4164245 (WD Wash 12 September 2024) and Spencer v Jeld-Wen Inc, No 23-CV-1757-BJR, 2024 WL 4566581 (WD Wash 24 October 2024).

Recently, Western District of Washington Judge John Chun certified the following question to the Washington State Supreme Court in a pay transparency lawsuit: “What must a [p]laintiff prove to be deemed a “job applicant” within the meaning of RCW 49.58.110(4)? For example, must they prove that they are a “bona fide” applicant?” (Branson v Washington Fine Wines & Spirits, LLC, No 2:24-CV-00589-JHC, 2024 WL 4510680 (WD Wash 20 August 2024). Additionally, the Department of Labor and Industries recently published draft rules interpreting the pay transparency law, which indicate that the Department of Labor and Industries believes an applicant must be “bona fide” to be entitled to damages for violations of the law.

Employers doing business in Washington state should review all current and future job postings to ensure compliance with the requirements of the new pay transparency law. Employment attorneys should watch for the Washington State Supreme Court’s answer to the recently certified question regarding what a party must prove to be considered a “job applicant” for the purposes of a pay transparency claim, as the answer to the certified question will impact arguments that can be raised in defence to such claims. They should also look for the Department of Labor and Industries’ final rules interpreting Washington state’s pay transparency law, which will likely be issued in 2025.

Washington State Supreme Court clarifies standard applicable to religious accommodation claims

During the past two years, Washington ‒ like many other states ‒ has seen an influx of religious accommodation lawsuits, largely arising from employment separations related to COVID-19 vaccination requirements. In such lawsuits, employers commonly assert undue hardship defences. Prior to June 2023, under Washington state’s anti-discrimination law ‒ the Washington Law Against Discrimination (WLAD) ‒ and Title VII of the Civil Rights Act of 1964, an employer was required to reasonably accommodate an employee seeking a religious accommodation unless they could establish an undue hardship defence by showing that the proposed accommodation posed a “more than de minimis” cost or burden.

In Groff v DeJoy, 600 US 447 (2023) (“Groff”), however, the US Supreme Court held that a “more than a de minimis cost” is not enough to establish undue hardship in a religious accommodation claim under Title VII of the Civil Rights Act. Instead, the US Supreme Court held that “undue hardship is shown when a burden is substantial in the overall context of an employer’s business”. It went on to say that courts should consider whether “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business”, taking into account “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of [an] employer.”

For more than a year, the Washington State Supreme Court was silent as to whether Groff’s substantial burdens test also applies to an undue hardship defence asserted in response to a religious discrimination claim under the WLAD. However, in July 2024, the Washington State Supreme Court confirmed in Suarez v State, 552 P.3d 786 (Wash 2024) that a court considering an undue hardship defence asserted in response to a claim for failure to accommodate religious beliefs under the WLAD must apply the substantial burdens standard articulated in Groff.

As such, employers in Washington state should evaluate potential costs of accommodations under Groff’s substantial burdens test before making decisions regarding such requests. In making such a determination, employers can consider ‒ among other things ‒ direct monetary costs and non-economic burdens that the proposed accommodation would place on the employer’s operations and co-workers.

Expansion of Washington state’s Paid Sick Leave Law

Substitute Senate Bill (SSB) 5793 was signed into law by Washington state governor Jay Inslee on 28 March 2024 and takes effect on 1 January 2025. SSB 5793 amends Washington state’s Paid Sick Leave Law (RCW 49.46.210) by expanding the definitions of an employee’s “family member” and the circumstances in which paid sick leave can be used, as follows.

• An employee can now take paid sick leave when the employee’s place of business, or the employee’s child’s school or care centre, have been closed for a health-related reason “or after the declaration of an emergency” by the local, state or federal government.
• The definition of family member now includes “any individual who regularly resides in the employee’s home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care.”
• The definition of “child”, which falls within the definition of “family member”, now includes “a child’s spouse”.

Employers should review and update their policies and procedures to reflect the new reasons for leave, as well as the expanded definition of “family member”, so as to provide clarity for employees and ensure compliance with state law.

Jury selection perspective

Washington is one of the few states that has a court rule intended to eliminate racial bias in jury selection. General Rule 37, which took effect in 2018, modifies the three-part test set forth in Batson v Kentucky, 476 US 79 (1986) for evaluating the constitutionality of a peremptory strike and prohibits peremptory challenges based on intentional race discrimination as well as “implicit, institutional, and unconscious” racial and ethnic biases. (See also Matter of Rhone, 528 P.3d 824 (Wash 2023) (reaffirming the importance of having a modified version of the Batson test that provides more protections to litigants)). Litigators in Washington state should be cognisant of this rule when exercising peremptory challenges during jury selection and should always be prepared to justify any peremptory challenges in the event that an objection is raised.

Upon objection to the exercise of a peremptory challenge pursuant to General Rule 37, the party exercising the peremptory challenge must explain the reasons why the peremptory challenge has been exercised. Under General Rule 37, a judge is required to deny the peremptory challenge if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge”; the court need not find purposeful discrimination to deny the peremptory challenge.

General Rule 37 also identifies presumptively invalid reasons for a peremptory challenge that have historically been associated with discrimination in jury selection. These include (but are not limited to) “prior contact with law enforcement officers”, “expressing a distrust of law enforcement”, “not being a native English speaker”, and “living in a high-crime neighbo[u]rhood”.