Washington high court sides with applicants suing over job post

(CN) — The Washington Supreme Court ruled on Thursday that job seekers need not prove themselves to be serious or “bona fide” applicants in order to take advantage of a state law that allows them to sue employers for not including salary range on job listings.

Lisa Branson and Cherie Burke applied to work at Total Wine and More, a chain of 13 retail liquor stores, through the job site Indeed. The positions’ pay range and benefits was not included in the job listing, as required by Washington’s Equal Pay & Opportunities Act, or EPOA, which allows any person who submits a job application in response to a noncompliant posting to sue for $5,000 damages.

Branson and Burke filed a class action against the liquor chain. The district court asked the state’s high court to clarify what exactly a “job applicant” was — must they, for example, intend to take the job, if offered? Must they be qualified?

Total Wine argued that a broad definition of “job applicant” — that is, anyone who fills out and submits a job application — would lead to “absurd” consequences, resulting in a torrent of lawsuits from plaintiffs who are unqualified, incarcerated, living abroad or who are serial litigants. But the Supreme Court disagreed.

“Narrowing the term job applicant’ to those who applied for the job in good faith or have a bona fide interest in obtaining the posted job would shift the onus from employers to comply with the EPOA and put the burden on applicants to show that they applied in good faith despite not being provided the required pay expectations in the relevant job posting,” wrote Justice Barbara Madsen in the 6-3 decision. “Further, it is unclear what it means to be a ‘good faith’ or ‘bona fide’ job applicant … The reality is that many individuals apply for multiple job postings when they are seeking employment and may not have all the qualifications listed.”

Using a more narrow definition, Madsen wrote, “would discourage applicants from bringing suit against employers for fear of costly litigation and intrusion into their personal lives to prove that they are ‘bona fide’ applicants.”

Madsen added that the intent of Washington’s Legislature was “to hold employers accountable regardless of an applicant’s ability to show actual damages since proving damages in these situations is difficult. If the consequences of violating the plain language of the EPOA are too onerous, the Legislature is in the best position to amend the statute to mitigate the liability employers face.”

The case now returns to the trial court.

In a dissent, Justice Gordon McCloud wrote that the purpose of Washington’s pay transparency law was to “fight employer discrimination,” not to “give bounty seekers an incentive to trawl the internet for noncompliant job postings to obtain a statutory damages award unrelated to any personal harm.”

McCloud argued that “job applicant” should be defined as someone who applies for a job in order to gain an offer of employment. “This standard is not that demanding, and a plaintiff’s credible testimony alone might well satisfy it.”

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