Twenty-four Muslim plaintiffs brought an action for religious and national discrimination. They claimed that only Muslim employees were disciplined for violating a workplace rule. Plaintiffs requested a jury instruction that the jury could find discrimination if it concluded that the employer?s reasons for discrimination were pretextual. The Superior Court refused. The jury returned a defense verdict.

On appeal, the court ruled that a trial court has discretion whether to give a pretext instruction. The panel reviewed federal case law, which was split evenly between whether the instruction is mandatory or discretionary. Following the Ninth Circuit, the panel held the instruction is discretionary.

Farah v. Hertz Transporting Inc., — Wn. App. –, — P.3d — (Div. I. 10/3/16) (Trickey, Verellen, Becker).