Crosswalk Coat Drive – Baby it’s Cold Out There!

Each year the Washington Defense Trial Lawyers Association (WDTL) sponsors a coat drive for different organizations in need.  Most of the coats are donated on the west side of the state.  Kirkpatrick & Startzel has participated in the coat drive for several years but donates them locally to Crosswalk Youth Shelter in Spokane.  Crosswalk is a division of Volunteers of America and has been operating since 1985.  Crosswalk is a licensed emergency shelter serving runaway and homeless youth in Eastern Washington.  This year Kirkpatrick & Startzel collected over 35 coats to donate during the annual WDTL coat drive.  We would like to acknowledge and thank Muv Fitness’ Senior Fitness class for their generous donations to this year’s collection.

Obligations to Transgender Patrons

Businesses and associations operating in Washington need to be aware of anti-discrimination rules in how they treat transgender patrons. Washington law prohibits discrimination against transgender persons in places of public accommodation. The law defines places of public accommodation expansively and it includes hotels, motels, restaurants, bars, retail establishments, medical facilities, funeral homes, educational institutions, and nearly every other kind of business or entity open to or providing services to the public. While truly private clubs and religious institutions may be exempt, they too are subject to anti-discrimination law when the general public is invited or permitted to use their facilities.

Under regulations adopted by the Washington Human Rights Commission (HRC), prohibited conduct includes “offensive and unwelcome behavior serious enough to alter the individual’s experience at the place of public accommodation, or severe enough that the individual has no choice but to leave the place of public accommodation.” The HRC has also adopted regulations specific to “gender segregated facilities” in places of public accommodation. These regulations specifically address how a business or other entity may and may not treat transgender persons in their use of restrooms, locker rooms, changing rooms, and other such facilities traditionally separated by gender.

Under the regulations, a business may not require a person to use a gender-segregated facility that is inconsistent with their gender expression or identity. For example, if an anatomically male individual identifies as a female then a business cannot force them to use the men’s room.  Nor can a business force such persons to use a gender neutral or private restroom. If you have a family or unisex facility along with men’s and women’s facilities, you may not require that a transgender person use that facility rather than whichever gender-segregated facility matches their gender identity.

But what if another customer is made uncomfortable by the presence of a transgender person in a male or female restroom or locker room? Here again, the law offers specific guidance on the situation. A business may not require the transgender individual to leave the men’s or women’s room, but rather should direct the offended patron to a private or unisex bathroom to resolve the issue. These rules apply even in facilities where undressing in front of others occurs, such as locker rooms and changing rooms.

Businesses may institute uniform codes of conduct which apply across all genders, regardless of a person’s gender identity or expression. Any action taken against transgender persons may only be based on such gender-neutral standards. Thus, a person may not be removed from a restroom or similar facility which matches their gender identity simply because they are not anatomically male or female. Any person, however — whether male, female, transgender, gay or straight — may be made to leave a facility because they are acting inappropriately according to uniform standards of conduct.

The HRC provides specific guidance on how businesses may comply with these rules. It is recommended that a business provide only single-stall private bathrooms where feasible. Every person would thus be free to, and comfortable, using any of the provided facilities regardless of gender or gender identity. This could also alleviate other issues, such as obviating the need for family-friendly private restrooms or avoiding situations where the men’s or women’s restroom is full while the other sits empty.

Often times it may not be feasible to provide only private, single stall facilities. In those circumstances, the HRC recommends providing at least one private, separate restroom or similar facility which anyone is free to use. Transgender persons could use the private facility if they prefer, though they cannot be made to use it. Any other patrons who are uncomfortable with the presence of a transgender person in the restroom or changing room may instead be directed to the private facility as a means of addressing the problem.

It is also recommended that businesses provide training to their employees on the requirements of anti-discrimination laws, including as applies to transgender patrons.

Every business or organization should consult with an attorney or other specialist to ensure they are in compliance with the law and to address any specific issues. Federal law will also need to be consulted. Kirkpatrick & Startzel represents businesses and individuals in discrimination actions, whether in the context of employment or public accommodation. Call today for a free initial consultation.

The Importance of Non-Intervention and No-Contest Provisions in Your Will

The Washington State Supreme Court recently issued an opinion reaffirming the importance of your Will having the necessary provisions to ensure your express wishes are properly implemented.  On March 15, 2018, the State Supreme Court issued an opinion in the Estate of Rathbone, 412 P.3d 1283 (Wa. 2018).  In that case, Ms. Rathbone named her three sons as residuary beneficiaries in her Last Will and Testament.  One of her sons was named as her Personal Representative.  The Will further indicated the Personal Representative would have non-intervention powers.  Non-intervention powers allow the appointed Personal Representative to administer the estate through probate without further court involvement.  See RCW 11.68.011.  The Will at issue in the Rathbone case also included a broadly worded no-contest provision.  The no-contest provision specified the wish of Ms. Rathbone that the appointed Personal Representative has authority to interpret the Will to resolve all matters pertaining to disputed issues or controverted claims.  The no-contest provision also disinherited any beneficiary who contested the Will or the Personal Representative’s interpretation of the Will.

No-contest provisions, also known as in terrorem clauses, discourage beneficiaries from contesting the Will.  If a contest is brought and the beneficiary loses, the effect of the no-contest clause forfeits the interest the contesting beneficiary had in the estate.

The no-contest provision in Ms. Rathbone’s Will went even further and specifically named one of her sons to not dispute her last wishes and provisions in the Will.  A dispute arose regarding the Personal Representative exercising an option to purchase real property.  The purchase price was paid to the estate, with the net proceeds assumedly equally distributed to the three brothers as the residuary beneficiaries.  Estate of Rathbone, 412 P.3d at 1285.

The son specifically mentioned in the no-contest provision filed two separate petitions seeking court intervention to dispute the real property purchase.  The trial court initially held the statute regarding a petition for accounting, RCW 11.68.110, and Washington’s TEDRA statute allowed the Court to intervene and interpret the disputed provision.  The trial court’s decision was essentially affirmed by the state appellate court.  The State Supreme Court reversed both lower court decisions.

The State Supreme Court re-emphasized that it is the duty of a Court to respect an individual’s Last Will and Testament if there is clear intent the testator does not want court involvement in the administration of his or her estate.  The Court also held the purpose of non-intervention powers afforded to a Personal Representative is to allow that individual to economically administer an estate.  The trial court should have exercised judicial restraint from interfering with the Personal Representative’s non-intervention powers.  Without specific proof of misconduct against the Personal Representative, courts may not interfere with the Personal Representative’s efforts to reasonably administer the estate.  Additionally, Washington’s TEDRA statute, by itself, does not supplant other statutory provisions to invoke the authority of a superior court over non-intervention powers.  Id. at 412 P.3d at 1289.

Has it been a while since you reviewed your Last Will and Testament?  If so, I encourage you to review your documents to ensure the directives set forth in your Will continue to be your current wishes on how your estate is to be administered.  It is also important to confirm important provisions, such as a no-contest provision, are clearly set forth in your estate plan.  If you have had recent life changes, such as the birth of a child, marriage, or divorce, or have recently become empty nesters, it is especially important to review your current estate plan.

The attorneys at Kirkpatrick & Startzel, P.S. provide a wide range of estate planning, probate, and other statutory avenues to administer a loved one’s estate.

PATRICK W. HARWOOD

 

Proposed Changes in Washington’s Wrongful Death Statutes

Recently, Washington State’s legislature considered making changes to Washington’s wrongful death statutes which could have significant impact on the recovery by family members. Currently the statutes limit recovery to certain family members. Recovery is allowed to spouses and children of the deceased for economic and non-economic damages. However, if the deceased did not have a spouse or children, then the parents or siblings could recover but only if they were “financially dependent” on the deceased. The parents or siblings did not have to be completely dependent, but there had to be a showing of at least “substantial” dependency.

Under the proposed legislation, a parent or sibling would have been allowed recovery even without a showing of financial dependency. However, this proposal not make it to the House of Representative for a vote before the deadline for this legislative session.

Washington’s wrongful death statutes can be confusing. If you have any questions regarding the current laws or the proposed changes in the wrongful death statute, please feel free to contact the attorneys at Kirkpatrick and Startzel.

By: Paul Kirkpatrick

Discovery and Social Media

Popular social media sites, such as Facebook and Instagram, serve as a platform for individuals to share their lives with a select group of their online friends or the world.  These social media accounts may provide key sources of information in litigation which should not be overlooked.

Courts have generally held that social media content is neither privileged nor protected by any right of privacy.  See Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012).    Even if a person has implemented certain privacy settings with respect to their profile, the information is still not protected from disclosure based on a claim of privacy.  E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010).

In Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311 (N.Y. App. Div. 2011), the court drew a comparison between private social media pages and a person’s diary, reasoning that in the same way that “relevant matter” from and individual’s diary is discoverable, any relevant material from an individual’s Facebook account is discoverable regardless of the privacy settings utilized by the page’s creator.  As one judge has observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”  Simply Storage Mgmt., 270 F.R.D. at 434.

The general rule in light of the foregoing is that an individual’s social media content is discoverable if it falls within the scope of discovery as set forth in Civil Rule 26(b)(1):

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action….  It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

This rule is designed to permit a broad scope of discovery.  Barfield v. City of Seattle, 100 Wn. 2d 878, 883, 676 P.2d 438, 441 (1984); see also Simply Storage Mgmt., 270 F.R.D. at 434 (where relevance is in doubt, FRCP Rule 26(b)(1) indicates that the court should permit discovery).

By:  Alicia Dragoo

 

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