--===Washington State Courts - Opinions===--
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 67365-9
Title of Case: Lynne Elizabeth Roberts
v.
Eric G. Dudley, D.V.M. and Rebecca Dudley
File Date: 02/17/2000
Oral Argument Date: 06/15/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Pierce County;
94-2-07362-7
Honorable Thomas J. Felnagle, Judge.
JUSTICES
--------
Authored by Richard B. Sanders
Concurring: Charles Z. Smith
Charles W. Johnson
Gerry L. Alexander
Faith E Ireland
Gerry L. Alexander
Philip A. Talmadge
Dissenting: Barbara A. Madsen
Richard P. Guy
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Gregory J. Murphy
Eisenhower & Carlson Pllc
Ste 1200
1201 Pacific Ave
Tacoma, WA 98402
Amy C. Lewis
Eisenhower & Carlson
Wells Fargo Plaza #1200
1201 Pacific Ave
Tacoma, WA 98402
Clemencia Castro-Woolery
Wells Fargo Pza #1200
1201 Pacific Ave
Tacoma, WA 98402
Counsel for Respondent(s)
David W. Murdach
Attorney At Law
417 S G St
Tacoma, WA 98405-4711
Amy J. Stephson
705 2nd Ave Ste 401
Seattle, WA 98104-1711
Amicus Curiae on behalf of Washington Defense Trial Lawyers
Jayne L. Freeman
Keating Bucklin & McCormack
800 5th Ave
Suite 4141
Seattle, WA 98104
Amicus Curiae on behalf of Independent Businessassn et al.
Jill D. Bowman
Stoel Rives Boley Jones & Grey
3600 One Union Square
600 University St.
Seattle, WA 98101
Timothy J. O'Connell
600 University St Ste 360
Seattle, WA 98101-3197
Keelin A. Curran
Stoel Rives Llp
600 University St #3600
Seattle, WA 98101-3197
Amicus Curiae on behalf of American Civil Liberties Union,
Washington Employment Lawyers Assoc
Susan B. Mindenbergs
260 Maynard Bldg.
119 1st Avenue S.
Seattle, WA 98104-2564
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
Kelby D. Fletcher
Peterson Bracelin Young Putra Fletcher & Zeder
Massong Knopp PS
1501 4th Aveste 2800 Cent
Seattle, WA 98101-1662
Debra L. Stephens
6210 E Lincoln Ln
Spokane, WA 99207-9220
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
LYNNE ELIZABETH ROBERTS, )
)
Respondent, ) No. 67365-9
) En Banc
v. ) Filed February 17, 2000
)
ERIC G. DUDLEY, D.V.M., and )
REBECCA DUDLEY, and their )
marital community, )
)
Petitioners. )
SANDERS, J.--The question is whether an employee who lacks a statutory
remedy for wrongful discrimination may nevertheless assert the common law
tort of wrongful discharge. The answer is the employee may, if public
policy renders such termination 'wrongful.'
The trial court dismissed such a claim on summary judgment whereas the
Court of Appeals reversed, reinstating the claim. We affirm the Court of
Appeals and remand for trial, finding multiple bases in the public policy
of this state upon which the tort of wrongful, gender-based discharge may
be based.
I.
FACTS
An appeal from an order of summary judgment requires us to view the facts
of record in the light most favorable to the nonmoving party. CR 56(c);
Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d
800, 801, 699 P.2d 217 (1985). Because the employer (Dudley) brought the
motion for summary judgment, we must therefore view the record in the light
most favorable to the employee (Roberts).
Lynne Roberts began working at the North End Veterinary Clinic on December
4, 1972 and still worked there in July 1991 when Eric Dudley, D.V.M.,
purchased and continued operating the clinic. It is undisputed that at all
relevant times Dudley never employed eight or more employees at the clinic.
On February 1, 1993 Roberts commenced unpaid maternity leave. On May 1,
1993 Dudley discharged Roberts, claiming her position was no longer
available due to a business slowdown. Dudley readvertised the position in
May 1994 but when Roberts applied she was refused reemployment. Roberts
claims the reason given for her discharge (economic slowdown) was
pretextual whereas the real reason for her discharge was that she was
pregnant.
Roberts sued Dudley for gender discrimination, initially stating a cause of
action under RCW 49.60, but subsequently amended her complaint to state a
claim for common law wrongful discharge in violation of the public policy
against sex discrimination.
Dudley moved for partial summary judgment to dismiss the wrongful discharge
claim. He argued Roberts had no cause of action under state law even if
she were discharged because of her gender because Dudley was a small
employer, employing fewer than eight persons. The trial court agreed and
granted Dudley's motion for partial summary judgment, dismissing the
wrongful discharge claim. We denied direct review, transferring the case
to the Court of Appeals.
The Court of Appeals reversed the trial court, finding a clear public
policy against discrimination, holding a common law cause of action exists
for wrongful discharge when the discharge violates the public policy
against discrimination. Roberts v. Dudley, 92 Wn. App. 652, 659-60, 966
P.2d 377 (1998). We then granted review.
Dudley relies heavily on this court's decision in Griffin v. Eller, 130
Wn.2d 58, 922 P.2d 788 (1996), arguing Griffin recognized a public policy
to protect small employers from discrimination suits, precluding the
possibility of a common law cause of action for employment discrimination.
Dudley further argues the public policy exception to the employment at-will
doctrine should be applied narrowly and cautiously, citing Thompson v. St.
Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984) and subsequent
cases, asserting a common law cause of action for wrongful discharge based
on gender discrimination is inconsistent with those cases. Additionally he
argues neither the Equal Rights Amendment, Wash. Const. art. XXXI, sec. 1
(amend. 61), nor RCW 49.12.200 creates a source of public policy against
discrimination, as neither is directed at private employment. The
Washington Defense Trial Lawyers and the Independent Business Association1
each submitted amicus curiae briefs in support of Dudley.
Roberts argues there is nothing in Griffin, 130 Wn.2d 58, inconsistent with
a common law cause of action for wrongful discharge in violation of a clear
public policy against sex discrimination because Griffin did not decide
that issue but rather involved a statutory claim under RCW 49.60. Roberts
further argues RCW 49.12.200, the law against discrimination (RCW 49.60),
and the Equal Rights Amendment2 all evidence a clear public policy against
sex discrimination in employment. Roberts relies on Bennett v. Hardy, 113
Wn.2d 912, 784 P.2d 1258 (1990), and Gardner v. Loomis Armored, Inc., 128
Wn.2d 931, 913 P.2d 377 (1996), to support her claim that there is a common
law cause of action for wrongful discharge in violation of the public
policy against discrimination. Amicus American Civil Liberties Union of
Washington3 agrees with Roberts, as does the Washington State Trial Lawyers
Association which filed an amicus curiae brief arguing this court need only
look to the Equal Rights Amendment, to find a clear public policy against
discrimination.
II.
ANALYSIS
A. Common Law Wrongful Discharge
An indefinite employment contract is generally terminable at will. Roberts
v. Atlantic Richfield Co., 88 Wn.2d 887, 894, 568 P.2d 764 (1977). However
in Thompson, 102 Wn.2d 219, we recognized an exception to the at-will rule
in the form of a common law cause of action in tort for wrongful discharge
of an employee where the discharge contravenes 'a clear mandate of public
policy.' Id. at 232. The 'public policy' for which we search is an
authoritative public declaration of the nature of the wrong.
In Thompson we were careful to limit the wrongful discharge cause of action
to situations where a public policy was already clearly expressed in the
constitution, a statute, or a prior court decision:
'In determining whether a clear mandate of public policy is violated,
courts should inquire whether the employer's conduct contravenes the letter
or purpose of a constitutional, statutory, or regulatory provision or
scheme. Prior judicial decisions may also establish the relevant public
policy. However, courts should proceed cautiously if called upon to
declare public policy absent some prior legislative or judicial expression
on the subject.'
Id. (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625,
631 (1982)). As we noted in Thompson, 'to state a cause of action, the
employee must plead and prove that a stated public policy, either
legislatively or judicially recognized, may have been contravened.'
Thompson, 102 Wn.2d at 232. Any finding of public policy must therefore be
clearly grounded in legislation or prior jurisprudence to protect employers
from frivolous lawsuits, thus balancing the interests of the employer and
the employee. Id.
We elaborated on the meaning of a clearly mandated public policy in Dicomes
v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989), stating:
'In general, it can be said that public policy concerns what is right and
just and what affects the citizens of the State collectively. . . .
Although there is no precise line of demarcation dividing matters that are
the subject of public policies from matters purely personal, a survey of
cases in other States involving retaliatory discharges shows that a matter
must strike at the heart of a citizen's social rights, duties, and
responsibilities before the tort will be allowed.'
Id. at 618 (quoting Palmateer v. International Harvester Co., 85 Ill. 2d
124, 130, 421 N.E.2d 876, 52 Ill. Dec. 13 (1981)).
Gardner, 128 Wn.2d 931, involved a common law claim for wrongful discharge
following the termination of an armored truck driver who left his truck in
violation of company policy to rescue a hostage at a bank robbery.
Although we found the 'situation presented by this case does not fit neatly
into . . . the categories of {public policy tort} cases previously
considered by this court,'4 id. at 938, we nevertheless found the truck
driver had a cause of action for wrongful discharge based on the public
policy in favor of protecting human life. Id. at 944-46. We there
identified four necessary elements upon which a common law claim for
wrongful discharge in violation of public policy must be heard:
(1) The plaintiffs must prove the existence of a clear public policy (the
clarity element).
(2) The plaintiffs must prove that discouraging the conduct in which they
engaged would jeopardize the public policy (the jeopardy element).
(3) The plaintiffs must prove that the public-policy-linked conduct caused
the dismissal (the causation element).
(4) The defendant must not be able to offer an overriding justification
for the dismissal (the absence of justification element).
Id. at 941 (citations omitted). The first element (determining what is a
clear mandate of public policy) is a question of law, Dicomes, 113 Wn.2d at
617, and it is this element of the four-part test which is at issue here.
Dudley argues the Court of Appeals decision on review conflicts with
Thompson and its progeny, asserting those cases apply the public policy
exception to the at-will rule very narrowly. However the rule announced by
the Thompson line of cases is that a court may not sua sponte manufacture
public policy but rather must rely on that public policy previously
manifested in the constitution, a statute, or a prior court decision.5
Thompson, 102 Wn.2d at 232; Dicomes, 113 Wn.2d at 617; Gardner, 128 Wn.2d
at 936-37. Thus in Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838
P.2d 128 (1992), the Court of Appeals found there was no clear mandate of
public policy pertaining to employee drug testing because there was no
statute demonstrating such a public policy. Roe, 67 Wn. App. at 609-10
('The Legislature has enacted many statutes specifically regulating
employer-employee relationships. The fact that the Legislature has not
enacted a statute regulating drug testing by private employers is
significant.' (citation omitted)).
However if a public policy against discriminatory discharge for reasons of
gender may be found in the constitution, a statute, or a prior decision of
this court, Dudley's argument fails because it is contrary to Thompson.6
B. Public Policy Against Sex Discrimination
In Thompson we required a public policy basis for the tort of wrongful
discharge to be grounded in the constitution, a statute, or a prior court
decision. Roberts argues a public policy against discrimination may be
found in all three of these sources.
1. Judicial basis for public policy against discrimination
In Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996), we stated,
'the purpose of the law {against discrimination} is to deter and to
eradicate discrimination in Washington' which has been recognized as 'a
policy of the highest priority.' Id. at 109 (emphasis added). We made
further reference to '{t}his state's strong policy against sex
discrimination.' Id. In support of these statements we cited previous
decisions, namely Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302,
309-10, 898 P.2d 284 (1995); Burnside v. Simpson Paper Co., 123 Wn.2d 93,
99, 864 P.2d 937 (1994); and Allison v. Housing Auth., 118 Wn.2d 79, 86,
821 P.2d 34 (1991). Thus in Marquis we affirmed a strong and clear public
policy against discrimination. This judicial recognition of the public
policy alone fulfills the requirements of Thompson that the policy be
clearly based in law. However there are also statutory bases for the
policy.
2. Statutory basis for public policy against discrimination
Roberts' argument focuses on RCW 49.12.200 and RCW 49.60.010 as evidence of
a statutory public policy against sex discrimination.7
(a) RCW 49.12.200
RCW 49.12.200 is headed, 'Women may pursue any calling open to men' and
states:
That hereafter in this state every avenue of employment shall be open to
women; and any business, vocation, profession and calling followed and
pursued by men may be followed and pursued by women, and no person shall be
disqualified from engaging in or pursuing any business, vocation,
profession, calling or employment or excluded from any premises or place of
work or employment on account of sex.
RCW 49.12.2008 (emphasis added). This provision expresses a clear policy
against discharge from employment because of sex discrimination and
contains no exemption for small employers.
Dudley argues RCW 49.12.200 does not provide a public policy basis for the
tort of wrongful discharge because it is not directed at private employers.
However such is not apparent from the language of the provision which in
fact is categorical in its terms, stating 'every avenue' of employment
shall be open to women and 'no person' shall be disqualified from pursuing
'any' career because of sex. RCW 49.12.200. Furthermore the context of
the provision indicates it is in fact directed at private employers--it is
within a chapter entitled, 'INDUSTRIAL WELFARE' which deals with conditions
of employment in the private sector. 49.12 RCW. RCW 49.12.200 therefore
demonstrates a strong public policy against sex discrimination in
employment.
Although this statute recognizes a general right to be free of discharge
due to sex discrimination, it provides no remedy for the same. Roberts
therefore argues the court should imply a remedy for breach of RCW
49.12.200, relying on the Latin maxim ubi jus, ibi remedium ('{w}here there
is a right, there is a remedy,' Black's Law Dictionary 1520 (6th ed. 1990))
and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) in which
the Supreme Court stated:
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an
injury. One of the first duties of government is to afford that
protection.
Marbury, 5 U.S. at 163. Roberts notes this court has recognized when a
'statute {has} provided a right of recovery, it is incumbent upon the court
to devise a remedy.' State v. Manuel, 94 Wn.2d 695, 699, 619 P.2d 977
(1980).
RCW 49.12.200 provides strong evidence of the public policy against
discharge from employment due to sexual discrimination for which a common
law cause of action in tort for wrongful discharge is available.
(b) The law against discrimination, RCW 49.60
A second statutory source of public policy against sex discrimination in
employment relied upon by Roberts is the law against discrimination, RCW
49.60. In response Dudley and Amicus Independent Business Association both
argue because the law against discrimination explicitly exempts small
employers from the statute, it would be illogical to find that statute a
source of public policy permitting a common law cause of action for
wrongful discharge against such small employers.9 But ultimately the small
employer exception from statutorily created remedies proves the more
general rule of public policy at issue here.10
But in the section entitled, 'Purpose of chapter' the statute provides:
The legislature hereby finds and declares that practices of discrimination
against any of its inhabitants because of . . . sex . . . {is} a matter of
state concern, that such discrimination threatens not only the rights and
proper privileges of its inhabitants but menaces the institutions and
foundation of a free democratic state.
RCW 49.60.010 (emphasis added). It then goes on to declare the right to be
free from discrimination in employment to be a civil right:
The right to be free from discrimination because of . . . sex . . . is
recognized as and declared to be a civil right. This right shall include,
but not be limited to:
(a) The right to obtain and hold employment without discrimination{.}
RCW 49.60.030(1). This statutory declaration clearly condemns employment
discrimination as a matter of public policy. Nothing in these provisions
suggests small employers are exempt from such a policy; to the contrary,
RCW 49.60.010 sets forth a policy that discrimination against any citizens
should be eradicated.
Furthermore the 'exemption' from the statute for small employers is found
neither in the purpose section of the statute, in the section dealing with
civil rights, nor even in a provision dealing with statutory exemptions,
but in the 'Definitions' section which states:
As used in this chapter:
. . . .
(3) 'Employer' includes any person acting in the interest of an employer,
directly or indirectly, who employs eight or more persons, and does not
include any religious or sectarian organization not organized for private
profit.
RCW 49.60.040 (emphasis added). By this section the legislature narrows
the statutory remedies but does not narrow the public policy which is
broader than the remedy provided. Thus, the statutory remedy is not in
itself an expression of the public policy, and the definition of 'employer'
for the purpose of applying the statutory remedy does not alter or
otherwise undo to any degree this state's public policy against employment
discrimination. Cf. Dissent at 3. If it is argued that the exclusion of
small employers from the statutory remedy is itself a public policy, that
policy is simply to limit the statutory remedy, but is not an affirmative
policy to 'exempt{} small employers from {common law} discrimination
suits.' Dissent at 3.
The absence of an affirmative policy to exempt small employers from all
discrimination suits is, moreover, expressly stated in the statute which
specifically mandates it should not be used as a means to bar other types
of actions for civil rights violations:
Nothing contained in this chapter shall be deemed to repeal any of the
provisions of any other law of this state relating to discrimination
because of . . . sex . . . Nor shall anything herein contained be construed
to deny the right to any person to institute any action or pursue any civil
or criminal remedy based upon an alleged violation of his or her civil
rights.
RCW 49.60.020. Because the statute elsewhere declares the right to hold
employment without discrimination to be a civil right, RCW 49.60.030, this
section explicitly provides the statute as a whole should not be construed
to deny a plaintiff the right to assert a claim for discriminatory
discharge. Yet this is precisely the construction that Dudley urges upon
the court. But to hold the definition of 'employer' for the purposes of
RCW 49.60 prevents a plaintiff from asserting the tort of wrongful
discharge based on sexual discrimination would be contrary to the clear
mandate in RCW 49.60.020.
Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990) also clarifies that
the statutory definition of 'employer' does not exclusively limit the
policy against discrimination to large employers.
In Bennett the plaintiffs, twin sisters, sued a former employer alleging
age discrimination and wrongful discharge. After the discharge of one
sister, plaintiffs hired an attorney who informed the employer his
discharge of the first plaintiff amounted to age discrimination. Shortly
thereafter the employer discharged the second plaintiff. The employer
employed fewer than eight employees and therefore was not within the
definition of 'employer' as set out in the law against discrimination, RCW
49.60. We there recognized an implied cause of action under RCW 49.44.090
which makes age discrimination against an employee between the ages of 40
and 70 an unfair practice. We also held the second plaintiff had
established a cause of action for wrongful discharge based on a public
policy against retaliation because of her opposition to her employer's
discriminatory practices. Although the law against discrimination was not
directly applicable, we nevertheless found that it could form a basis for
public policy:
Although RCW 49.60 is not applicable here because the defendants do not fit
within that chapter's employer definition, the statute does indicate the
Legislature's recognition that retaliatory discharge is an unfair
employment practice and that seeking legal recourse is a reasonable
employee response.
Bennett, 113 Wn.2d at 925. We then explicitly considered whether the small
employer exemption under RCW 49.60 should apply to bar either the implied
cause of action under RCW 49.44.090 or the tort of wrongful discharge when
such causes of action were brought against a small employer, holding
the employer size definition of RCW 49.60.040 does not apply outside
chapter 49.60 and so does not operate to bar either of the claims
recognized above.
Bennett, 113 Wn.2d at 929. In Bennett we therefore held the definition of
'employer' for the purposes of RCW 49.60 did not preclude a common law
cause of action for wrongful discharge, and that is our holding today as
well. The law against discrimination provides a strong public policy basis
for the plaintiff's claim of wrongful discharge,11 and it certainly does not
operate to bar her recovery.12 We do not construe the statute to discover a
statutory remedy--clearly there is not one; rather we read the statute to
understand its purpose in policy. Thompson, 102 Wn.2d at 232 (''In
determining whether a clear mandate of public policy is violated, courts
should inquire whether the employer's conduct contravenes the letter or
purpose . . . of . . . a statutory . . . scheme.'' (quoting Parnar v.
Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625 (1982) (emphasis
added)).
C. Griffin v. Eller
Dudley's primary argument is based on Griffin v. Eller, 130 Wn.2d 58, 922
P.2d 788 (1996), and so we will address the relationship of Griffin to our
decision today. Dudley argues Griffin recognized a legitimate public
policy to protect small employers from discrimination suits, precluding the
possibility of a common law cause of action for employment discrimination.
Griffin involved a legal secretary who was the only full-time employee of a
sole-practitioner attorney and who brought suit claiming inter alia sexual
harassment in violation of the law against discrimination, RCW 49.60, as
well as a separate claim for wrongful termination in violation of public
policy. Griffin, 130 Wn.2d at 62. The trial court granted partial summary
judgment dismissing the plaintiff's claims under RCW 49.60, Griffin, 130
Wn.2d at 62, but permitted the claim of wrongful discharge in violation of
public policy to go to the jury. Id. at 71 (Madsen, J., concurring). The
jury found the plaintiff had not proven the wrongful discharge claim and no
appeal was taken on this issue. Id. at 72 (Madsen, J., concurring).
However the summary judgment dismissal of the plaintiff's claims under RCW
49.60 was appealed.
The issue in Griffin was therefore whether an employer with fewer than
eight employees was exempt from the remedies provided under RCW 49.60 and,
if so, whether this violated the privileges and immunities clause of the
state constitution, Wash. Const. art. I, sec. 12. Because the statute
defined 'employer' as one which employed eight or more, we followed the
plain language of this statutory definition, holding an employer with fewer
than eight employees was exempt from suit under the provisions of the
statute and, further, that the statutory definition of 'employer' survived
a challenge under the privileges and immunities clause:
We hold employers of fewer than eight employees are statutorily exempt from
these remedies provided under RCW 49.60 and conclude the exemption passes
constitutional muster.
Griffin, 130 Wn.2d at 61 (emphasis added). The holding in Griffin was
limited to applying and upholding the statutory definition of 'employer,'
which exempts small employers from suit under RCW 49.60. We simply did not
consider the possibility of an action in tort for wrongful discharge in
violation of public policy in the Griffin opinion.
Dudley cites at length language in Griffin which he argues demonstrates
policy reasons for exempting small employers from discrimination suits,
both statutory and common law. Dudley further argues Griffin adopted a
balance between the public policy against discrimination and a public
policy in favor of protecting small employers from discrimination suits and
that the Court of Appeals' decision in the present case upset that balance.
In Griffin we stated,
{T}he Legislature may well have been advancing legitimate state purposes by
conserving limited state resources and protecting small businesses from
private litigation expense, in addition to avoiding the regulatory burden
inherent in regulation by the Human Rights Commission, per se.
Griffin, 130 Wn.2d at 66-67 (emphasis added). And we noted,
The Legislature may have had many reasons to adopt the small employer
exemption in RCW 49.60. Certainly the State has a substantial interest in
the well-being of small business with regard to the state economy, tax
base, and opportunities for employment . . . . The Legislature could well
have concluded burdening so many employers to benefit so few employees was
not, on balance, of sufficient public benefit to offset the burden.
Griffin, 130 Wn.2d at 68 (emphasis added). However the context of these
statements was the availability of an enhanced statutory remedy, not the
existence of a common law cause of action. Griffin held RCW 49.60.040(3)'s
narrow definition of 'employer' survived an equal protection challenge
under article I, section 12, of the Washington Constitution to which we
applied the rational basis test as the appropriate standard of review.
Griffin, 130 Wn.2d at 65. The statements in Griffin regarding possible
reasons for the small employer exemption to RCW 49.60 were therefore made
in the context of conducting a rational basis review. We did not purport
to affirmatively state the public policy reasons behind the small employer
exemption--rather we merely reasoned there could be a rational basis to
satisfy the applicable standard of review. Therefore, although Griffin
does uphold the statutory 'exemption' for small employers to suits brought
under RCW 49.60, Dudley's argument that Griffin affirmatively establishes a
public policy in favor of exempting small employers from common law
discrimination suits ultimately fails.13
Nor is it inconsistent to follow the narrow definition of 'employer' under
RCW 49.60.040(3), which has the effect of exempting small employers from
suits brought under the law against discrimination, while at the same time
recognizing the tort of wrongful discharge in violation of the public
policy against discrimination incorporates no such exemption.
First, the law against discrimination establishes the Washington Human
Rights Commission and provides a mechanism for an employee to bring a
complaint of a violation of the law against discrimination before the
commission and before an administrative law judge. RCW 49.60.230-.250.
Even if small employers are subject to common law suit for wrongful
discharge based on sex discrimination, this court's decision in Griffin
will continue to exempt such small employers from administrative
proceedings and enhanced statutory remedies.
Second, the law against discrimination is significantly broader than the
tort of wrongful discharge. Under this statute an employee may obtain
actual damages sustained as a result of discriminatory refusal to hire,
workplace discrimination, and discriminatory employment advertising, as
well as discriminatory discharge. RCW 49.60.030(2); RCW 49.60.180; see
also Martini v. Boeing Co., 137 Wn.2d 357, 971 P.2d 45 (1999) (plaintiff
entitled to claim actual damages proximately caused by discrimination in
violation of RCW 49.60 even where such discrimination does not amount to
constructive discharge). However, the tort of wrongful discharge in
violation of public policy clearly applies only in a situation where an
employee has been discharged.14
Third, a plaintiff can recover 'the cost of suit including reasonable
attorneys' fees' after successfully asserting a claim under the law against
discrimination. RCW 49.60.030(2). However a recovery of attorney fees is
not available to a successful plaintiff in a common law claim for wrongful
discharge.
The clear statutory definition, which explicitly defines an 'employer' as
one which employs eight or more employees, was at the heart of our decision
in Griffin. However the common law claim asserted by the plaintiff in the
present case is not defined with reference to any such narrow statutory
provision.
Griffin must therefore be distinguished and does not control. The public
policy against gender discrimination is at the core of RCW 49.60, not at
its 'penumbra.' Cf. Dissent at 11. This statute provides an abundantly
clear statement of public policy upon which a common law cause of action
for wrongful discharge may be predicated.
III.
CONCLUSION
Following Thompson v. St. Regis Paper Co., Gardner v. Loomis Armored, Inc.,
and Bennett v. Hardy, we find the plaintiff has properly stated a cause of
action for the tort of wrongful discharge based on the clearly articulated
public policy against sex discrimination in employment. This clearly
articulated public policy is based on RCW 49.12.200 and RCW 49.60.010 and
has been previously recognized in Marquis v. City of Spokane. The Court of
Appeals is affirmed.
WE CONCUR.
1 Independent Business Association was joined by the Association of
Washington Business and the National Federation of Independent Business in
its amicus brief. (These amici curiae will hereinafter be referred to as
'amicus Independent Business Association.')
2 The Equal Rights Amendment (ERA) to the Washington Constitution states:
Equality of rights and responsibility under the law shall not be denied or
abridged on account of sex.
Wash. Const. art. XXXI, sec. 1. For the purposes of this case it is not
necessary to decide whether the ERA may form the basis for a tort of
wrongful discharge in violation of public policy when suit is brought
against a private employer. We will not decide a case on constitutional
grounds if it can be decided on a nonconstitutional basis. Weiss v. Glemp,
127 Wn.2d 726, 730, 903 P.2d 455 (1995); see also United States v. Locke,
471 U.S. 84, 92, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985). Because we find
that Marquis v. Spokane, the law against discrimination (RCW 49.60), and
RCW 49.12.200 all evidence a strong and clear public policy against
discrimination, it is unnecessary to determine whether the ERA is also a
source of this public policy.
3 The American Civil Liberties Union of Washington was joined by the
Washington Employment Lawyers Association in its amicus brief. (These
amici curiae will hereinafter be referred to as 'amicus ACLU.')
4 The court found that
public policy tort actions have generally been allowed in four different
situations: (1) where employees are fired for refusing to commit an
illegal act; (2) where employees are fired for performing a public duty or
obligation, such as serving jury duty; (3) where employees are fired for
exercising a legal right or privilege, such as filing workers' compensation
claims; and (4) where employees are fired in retaliation for reporting
employer misconduct, i.e., whistleblowing.
Gardner, 128 Wn.2d at 936.
5 Thus it is quite natural, not 'curious,' that we look to positive law to
define when a termination is 'wrongful' rather than benign. Cf.
Concurrence at 2 (Talmadge, J.). Unfortunately Justice Talmadge's
concurrence confuses the absence of a statutory remedy with the absence of
a statutory policy. However, the policy may be broader in declaration than
the remedy provided by the statute.
6 Amicus Independent Business Association cites Schonauer v. DCR
Entertainment, Inc., 79 Wn. App. 808, 905 P.2d 392 (1995), claiming it
demonstrates there cannot be a tort of wrongful discharge based on a public
policy against discrimination. Although the court in Schonauer denied the
plaintiff a wrongful discharge cause of action, it did so with only cursory
analysis and without the benefit of argument that there was a statutory
basis for the public policy. Schonauer, 79 Wn. App. at 827. Schonauer is
therefore unhelpful to the determination of the present case.
7 Roberts and Amicus American Civil Liberties Union cite several statutes
evidencing a public policy against gender discrimination. Some of these
statutes support a public policy against sex discrimination by governmental
entities. E.g., RCW 28A.640.010 ('Inequality in the educational
opportunities afforded women and girls at all levels of the public schools
in Washington state is a breach of Article XXXI, section 1, Amendment 61,
of the Washington state Constitution, requiring equal treatment of all
citizens regardless of sex. This violation of rights has had a deleterious
effect on the individuals affected and on society.'); RCW 74.04.515
(prohibiting discrimination based on sex for the purposes of public
assistance); RCW 2.36.080 (prohibiting exclusion from jury pools based on
gender). Other statutes apply a public policy against sex discrimination
to the private sector. RCW 48.30.300(1) ('No person or entity engaged in
the business of insurance in this state shall refuse to issue any contract
of insurance or cancel or decline to renew such contract because of . . .
sex . . . .'); RCW 49.12.175 (prohibiting sex discrimination in the payment
of wages). For a full list of statutes cited see Supplemental Br. of
Resp't at 5, and Br. of Amicus American Civil Liberties Union at 15 n.6.
8 RCW 49.12.200 was first enacted in 1890. Laws of 1889-90, at 519.
9 The dissent also argues the defeat of two recent bills, SB 5130 and ESB
5337, 56th Leg., Reg. Sess. (1999), evidence the intent of the legislature
not to subject small employers to any discrimination suits. However this
argument is too broad. These bills, if enacted, would have subjected small
employers to statutory remedies. Their failure, however, does not signify
any retraction of a more fundamental public policy against wrongful
discrimination in the workplace. Senate Bill 5130 would have changed the
definition of 'employer' in RCW 49.60.030 to any person employing one or
more employees, thus effectively removing the small employer 'exemption'
from the statute. If this demonstrates any legislative intent at all, it
simply indicates if the bill had been enacted the legislature would have
removed the small employer 'exemption' to the provisions of RCW 49.60. For
the same reason ESB 5337, which proposed a task force to examine the
definition of 'employer' for the purposes of RCW 49.60, provides no
relevant evidence of legislative intent.
10 The dissent attacks a straw man when it argues there is no statutory
remedy here based upon the narrow definition of 'employer.' That, however,
is just the point--the legislative policy against discrimination in
employment is broader than its remedy. But the statutory remedy, or lack
thereof, does not define the policy. Dissent at 3-4.
11 Courts in other states have considered strikingly similar issues. Amicus
Independent Business Association cites two cases where courts have declined
to recognize a tort of wrongful discharge--Brown v. Ford, 905 P.2d 223
(Okla. 1995) and Jennings v. Marralle, 8 Cal. 4th 121, 876 P.2d 1074, 32
Cal. Rptr. 2d 275 (1994). Br. of Amicus Independent Business Association
at 8-9. However, other courts have found a clear public policy against
discrimination in state antidiscrimination statutes even although those
statutes exempt small employers. Molesworth v. Brandon, 341 Md. 621, 637,
672 A.2d 608, 616 (1996) ('We hold . . . that Art. 49B, sec. 14 {of the
Maryland code, making discriminatory discharge an unlawful employment
practice} provides a clear statement of public policy sufficient to support
a common law cause of action for wrongful discharge against an employer
exempted by Art. 49B, sec. 15(b). Section 15(b) merely excludes small
employers from the administrative process of the Act, but does not exclude
them from the policy announced in sec. 14.' (emphasis added)); Kerrigan v.
Magnum Entertainment, Inc., 804 F. Supp. 733, 736 (D. Md. 1992) ('Because
art. 49B {of the Maryland code} evidences a clear policy against employment
discrimination, and because this Court finds no legislative intent on the
part of the General Assembly to exempt small businesses from the policy
animating art. 49B, the Court finds that {a} . . . wrongful termination
claim based on alleged discrimination will lie in Maryland . . . .'
(emphasis added)); Collins v. Rizkana, 73 Ohio St. 3d 65, 74, 652 N.E.2d
653, 661 (1995) ('{I}n the absence of legislative intent to preempt common-
law remedies, we can perceive no basis upon which to find that R.C.
4112.01(A)(2) {exempting employers with fewer than four employees from the
antidiscrimination statute} forms part of the public policy reflected in
R.C. 4112.02(A) {making discrimination in employment an unlawful practice}.
Therefore, we cannot find it to be Ohio's public policy that an employer
with three employees may condition their employment upon the performance of
sexual favors while an employer with four employees may not.'); Williamson
v. Greene, 200 W. Va. 421, 490 S.E.2d 23, 33 (1997) ('{T}he West Virginia
Human Rights Act clearly constitutes this state's 'substantial public
policy' against sex discrimination and sexual harassment in employment,
including retaliatory discharge based thereon. Although the Act does not
provide this plaintiff with a statutory remedy, it nevertheless sets forth
a clear statement of public policy sufficient to support a common law claim
for retaliatory discharge against an employer . . . .') (footnote omitted)
(emphasis added).
12 See discussion of Griffin v. Eller, infra at 20-26.
13 Contrary to the reasoning of Justice Talmadge's concurrence, which
apparently still favors his own dissent in Griffin to the court's majority
opinion in that case, the precedent which binds the court here is that
spoken by the majority in Griffin, not the dissent. For the reasons
indicated therein, Griffin was correctly decided, and we distinguish here
the policy underlying a statute from the remedy, or lack thereof, provided
by the statute to accomplish that policy. If the concurrence concludes the
Griffin precedent leads to a result different from that stated here, the
concurrence should be with the dissent, not with this majority.
14 We do not here recognize a tort of 'gender discrimination.' Cf. Dissent
at 9. Rather, we recognize the long-established tort of wrongful discharge
may be established when the discharge is wrongfully accomplished on account
of gender.
Concurrence by Alexander, J.
Concurrence by Talmadge, J.
Dissent by Madsen, J.
No. 67365-9
ALEXANDER, J. (concurring) - I concur with the views expressed by
Justice Sanders in the majority opinion he has crafted for the court. I
write separately simply to indicate that, in my view, another and more
powerful source of public policy against sex discrimination can be found in
this state's Equal Rights Amendment (ERA), Wash. Const. art. XXXI (amend.
61). Respondents and amici have argued that we should not consider the ERA
as a relevant source of public policy, contending that it serves only to
prevent sex discrimination by the State. Although I would observe that
there is no case from this court that supports that argument, we need not
resolve the issue because we are not called upon to enforce a right under
our state's constitution. Rather, we are called upon to determine the
public policy of the State. I can think of no more appropriate place to
glean a state's fundamental policies than its state constitution. In that
regard, I am in accord with the view expressed by the California Supreme
Court when it ruled that sex discrimination in employment might support
claim of tortious discharge in contravention of public policy. It said,
'For our purposes here, however, whether article I, section 8 applies
exclusively to state action is largely irrelevant; the provision
unquestionably reflects a fundamental public policy against discrimination
in employment--public or private--on account of sex.'1 Rojo v. Kliger, 52
Cal. 3d 65, 801 P.2d 373, 389, 276 Cal. Rptr. 130 (1990).
By the same token, our state's ERA must be viewed as a clear statement
of fundamental public policy against such discrimination. In light of this
policy, which is also embodied in the statutes and case law that Justice
Sanders references in the majority opinion, I feel entirely comfortable
concurring in the result we reach.
1Article I, section 8 of the California Constitution provides: ''A
person may not be disqualified from entering or pursuing a business,
profession, vocation, or employment because of sex, race, creed, color, or
national or ethnic origin.'' Rojo, 801 P.2d at 388.
Concurrence by Talmadge, J.
Dissent by Madsen, J.
No. 67365-9
TALMADGE, J. (concurring) -- I concur in the result. Lynn Elizabeth
Roberts has a cause of action under RCW 49.60.030 and 49.60.180 if we
properly construe RCW 49.60.040(3) with respect to its definition of an
'employer' under Washington's law against discrimination. See Griffin v.
Eller, 130 Wn.2d 58, 72, 922 P.2d 788 (1996) (Talmadge, J., dissenting).1
Moreover, I share the view expressed by Justice Alexander in his
concurring opinion. A common law cause of action against wrongful
termination of employment for sex discrimination could find its grounding
in the overarching public policy of our Equal Rights Amendment, Wash.
Const., art. XXXI (amend. 61). That constitutional imperative is a
powerful source of public policy forbidding gender discrimination.
But I also share concerns expressed by Justice Madsen in her forceful
dissent with respect to a common law cause of action for wrongful discharge
based on a public policy founded on general statutory prohibitions against
gender discrimination. The painfully convoluted analysis of the majority
creates a common law cause of action employing a statute we erroneously
construed in Griffin specifically to forbid such a cause of action. I find
it curious that the majority surveys and deploys an array of positive law,
none of which affords Roberts a cause of action, to inform and support its
conclusion that the common law affords Roberts a cause of action.
Considerable peril to the doctrine of separation of powers arises when, as
here, a court purports to find the genesis of common law remedies among
statutes that actually offer no such remedies. This is breathtaking in its
implications. The specter of judicial activism is unloosed and roams free
when a court declares, 'This is what the Legislature meant to do or should
have done.' It would be wiser to acknowledge our erroneous interpretation
of the statute in Griffin and allow the plaintiff here her day in court
under RCW 49.60.180.
1 Under our policy of stare decisis, I am ordinarily exceedingly
reluctant to overturn an opinion of so recent a vintage. See, e.g., State
v. Berlin, 133 Wn.2d 541, 554, 947 P.2d 700 (1997) (Alexander, J.,
dissenting).
We will, however, depart from prior precedent if it is demonstrably
'incorrect and harmful{.}' Berlin, 133 Wn.2d at 547. The majority opinion
here tacitly concedes the Court's ruling in Griffin was incorrect and
harmful for victims of illegal discrimination when the majority discerns a
court-created tort based on violation of public policy.
Dissent by Madsen, J.
No. 67365-9
MADSEN, J. (dissenting) -- I dissent. The majority has the noblest of
intentions. It is clearly desirable to hold all employers accountable for
gender discrimination, regardless of their size. Unfortunately, the
Legislature has yet to do so. Instead, the majority has presumed the role
of the Legislature and has created a common law cause of action using a
statute that specifically prohibits it. It is the function of this court
to apply the intent of the Legislature as expressed through its laws. The
court exceeds its legitimate powers when it substitutes its own intent for
that of the Legislature. See Raynes v. City of Leavenworth, 118 Wn.2d 237,
243, 821 P.2d 1204 (1992) ('{T}he appropriate remedy when legislative
action is considered unjust is political.') By allowing a wrongful
discharge claim based on a public policy against gender discrimination, the
majority has done just that. It has declared that the statutory exemption
of small employers in RCW 49.60.040 is contrary to public policy, and has
recognized a claim through the common law that is prohibited by the
statute.
This court, beginning in Thompson v. St. Regis Paper Co., 102 Wn.2d 219,
232-33, 685 P.2d 1081 (1984), has recognized an exception to the terminable
at will doctrine which allows an employee to bring suit for wrongful
discharge when that discharge contravenes a clear mandate of public policy.
We have recognized four categories of cases in which this exception is
generally allowed: (1) where employees are fired for refusing to commit an
illegal act; (2) where employees are fired for performing a public duty or
obligation, such as serving jury duty; (3) where employees are fired for
exercising a legal right or privilege, such as filing workers' compensation
claims; and (4) where employees are fired in retaliation for reporting
employer misconduct (whistleblowing). See Gardner v. Loomis Armored, Inc.,
128 Wn.2d 931, 936, 913 P.2d 377 (1996). Employing a flawed analysis, the
majority has extended this list to include the discharge of an employee on
the basis of gender.
In Thompson, we held that the public policy exception to the
employment at will doctrine should be applied narrowly and cautiously. See
Thompson, 102 Wn.2d at 232. Accordingly, our job in this case is not as
easy as determining whether Washington maintains a public policy against
gender discrimination. If that were the question, it would simply be a
matter of pointing to the judicial opinions and statutes that the majority
relies on. Instead, Thompson and its progeny require that there be 'a
clearly stated' mandate of public policy. Gardner, 128 Wn.2d at 936
(citing Thompson, 102 Wn.2d at 232); see also Dicomes v. State, 113 Wn.2d
612, 617, 782 P.2d 1002 (1989) ('{T}he employee has the burden to show that
the discharge contravened a clear mandate of public policy.') In this
case, the mandate is not so clear. It is muted by the contravening policy
of protecting small employers from discrimination suits reflected in RCW
49.60.040.
The majority relies on three sources of public policy to create the common
law cause of action in tort for wrongful discharge. Most disingenuous
among the majority's efforts to find a source of public policy to create
this exception to the terminable at will doctrine is its use of RCW 49.60 -
- the Washington law against discrimination (WLAD) - despite its exemption
for employers of fewer than eight employees. See RCW 49.60.040(3).
Strangely, the majority reasons that the definitions section of a statute
cannot be a source of the public policy derived from that statute. See
Majority at 15-16. It therefore concludes that while the prohibition on
gender discrimination in the statute expresses public policy, the exemption
for small employers does not. See id. This is in direct conflict with
this court's decision in Griffin v. Eller, 130 Wn.2d 58, 922 P.2d 788
(1996), where we recognized that the Legislature had a legitimate state
interest in exempting small employers from discrimination suits.1
Furthermore, it plainly conflicts with principles of statutory
interpretation.
We have written that '{i}n construing statutes, the primary objective is to
carry out the intent of the Legislature. . . . In so doing, legislative
definitions provided in the statutes generally control.' American Legion
Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991)
(citing In re Estate of Little, 106 Wn.2d 269, 283, 721 P.2d 950 (1986);
City of Seattle v. Shepherd, 93 Wn.2d 861, 866, 613 P.2d 1158 (1980)).
Moreover, '{a} statute cannot be construed so that an entire provision is
meaningless, unless necessary to save the statute or act from
constitutional infirmity, or to reconcile conflicting statutes.' Childers
v. Childers, 89 Wn.2d 592, 596-97, 575 P.2d 210 (1978) (citations omitted).
This is because we 'presume that the legislature did not engage in vain and
useless acts and that some significant purpose or object is implicit in
every legislative enactment.' Oak Harbor Sch. Dist. v. Oak Harbor Educ.
Ass'n, 86 Wn.2d 497, 500, 545 P.2d 1197 (1976) (citing Kelleher v. Ephrata
Sch. Dist. 165, 56 Wn.2d 866, 355 P.2d 989 (1960)).
The majority also relies on the language in the WLAD which states that the
statute is not meant to limit other types of action for sex discrimination.
It reasons that because the law declares that it is a civil right to be
free from discrimination in employment, the small employer exemption cannot
preclude a civil action. This logic does not hold. The civil right is
created in terms of employment by employers of eight or more persons. It
is illogical to conclude that the Legislature intended to both protect
small employers and subject them to liability in the same statute. See
Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wn.2d 319, 321, 382 P.2d
639 (1963) ('On numerous occasions this court has indicated that a statute
should be construed as a whole in order to ascertain legislative purpose,
and thus avoid unlikely, strained or absurd consequences . . . .' (emphasis
added)).
Thompson recognized that the 'narrow public policy exception' to the
terminable at will doctrine 'balances the interest of both the employer and
employee.' Thompson, 102 Wn.2d at 232. In this case, the balancing of
interests is expressly embodied in the statute. The Legislature chose not
to enact a blanket statute that prohibited gender discrimination in all
employment. Apparently, it perceived dangers in subjecting small employers
to this type of process and litigation. As with all statutes, RCW 49.60
represents a balance of interests. It is the function of a Legislature to
balance the varying interests of its citizenry. See Burkhart v. Harrod,
110 Wn.2d 381, 385, 755 P.2d 759 (1988) ('The Legislature is uniquely able
to hold hearings, gather crucial information, and learn the full extent of
the competing societal interests.'). It is not the function of the
judiciary to tip that balance when it is so inclined, even when it believes
that the Legislature is wrong.
As the majority acknowledges, other states have considered questions
similar to the one in this case, and have produced mixed results. Those
decisions upholding small employer exemptions in the face of the statutory
policy to which they apply are clearly less strained in their analyses,
however, than those that read the exemptions out of the policy. Two cases
are instructive. In Brown v. Ford, 905 P.2d 223 (Okla. 1995), relied upon
in Griffin for its 'strikingly similar' fact pattern, see Griffin, 130
Wn.2d at 67, the Supreme Court of Oklahoma refused to recognize a common
law tort of wrongful discharge against an employer who was exempt under an
antidiscrimination statute similar to RCW 49.60. The court noted that
because the plaintiff's 'sexual harassment claim does not fall within the
statute's criteria for actionability - her workplace having less than
fifteen employees - she is not shielded by any legislatively articulated
public policy protection.' Brown, 905 P.2d at 228. Accordingly, the court
held that "{t}he body of our common law, which serves to supplement the
corpus of statutory enactments, is powerless to abrogate the latter, either
in whole or in part.' Id.
The California Supreme Court reached a similar conclusion on a claim
alleging age discrimination under California Fair Employment and Housing
Act, which defines an 'employer as a person 'regularly employing five or
more
persons . . . .'' Jennings v. Marralle, 8 Cal. 4th 121, 876 P.2d 1074,
1076, 32 Cal. Rptr. 2d 275 (1994) (quoting CAL. GOV. CODE sec. 12926(d)).
It found that since that state's small employer exemption was enacted at
the same time as the other provisions of the antidiscrimination law, it was
inseparable from the public policy expressed by the statute. 876 P.2d at
1076. The court, therefore, found 'that there presently exists no
'fundamental policy' which precludes age discrimination by a small
employer' and would serve as grounds for an exception to the terminable at
will doctrine. Id. In another case, the California Supreme Court held
that 'when the constitutional provision or statute articulating a public
policy also includes certain substantive limitations in scope or remedy,
these limitations also circumscribe the common law wrongful discharge cause
of action.' City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1159,
959 P.2d 752, 77 Cal. Rptr. 2d 445 (1998).
Griffin affirmed the legislative intent to exempt small employers from
a private cause of action created under the 1973 amendment to the WLAD.
Moreover, it refused to find that 'the Legislature would have passed the
statute absent the small employer exemption.' Griffin, 130 Wn.2d at 69.
The Legislature can be presumed to be aware of the decision in Griffin and
its effect. See Buchanan v. International Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers, 94 Wn.2d 508, 511, 617 P.2d 1004 (1980) (citing
State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977); Daly v. Chapman, 85 Wn.2d
780, 539 P.2d 831 (1975)). 'The legislature, within constitutional
constraints, is the body to make policy decisions on this matter. The
failure of the legislature to amend the statute . . . since the . . .
decision was rendered convinces us that it was and is the policy of the
legislature to concur in that result.' 94 Wn.2d at 511.
Accordingly, if Griffin is not sufficient to clarify that the
Legislature intended to protect small employers from private discrimination
actions, the Legislature's recent failure to pass two bills during the 1999
legislative session is. Bill reports show that both bills were proposed in
direct response to this court's decision in Griffin. Senate Bill 5130
would have eliminated the exception for small employers, by including
within the scope of RCW 49.60 those employing 'one or more persons,' and
adding to RCW 49.60.010 what the majority already finds there -- a positive
declaration 'that all employees are entitled to a workplace that is free
from discrimination.' S.B. 5130, at 2 (emphasis added). Senate Bill 5130
died in the committee to which it was originally referred, the Senate
Judiciary Committee. See 1 Legislative Digest and History of Bills, 56th
Leg., Reg. Sess. 45 (Wash. 1999). Engrossed Senate Bill 5337 would have
created a task force to study and make recommendations on employment
discrimination, focusing on small businesses. Engrossed Senate Bill 5337
passed the Senate 42-6, after receiving testimony in opposition from
organizations representing small business interests who argued that it
would create too big of a burden for small businesses,2 but failed to pass
out of the House Judiciary Committee. See id. at 118; S.B. Rep. ESB 5337,
at 2 (Wash. 1999). The Legislature thus reaffirmed its policy of
protecting small businesses against discrimination suits.3 See, e.g.,
Burkhart, 110 Wn.2d at 390 (noting that the Legislature had considered
bills relating to the subject of the case 'in its most recent session' and
that '{a}ccordingly, there is no reason for the judiciary to take on a more
creative role in usurping powers of legislation.'). However, the majority
impatiently now accomplishes by judicial fiat what legislators have, thus
far, failed to do.
In sum, the majority would conclude that RCW 49.60 provides a clear
mandate of public policy to allow a gender discrimination suit against a
small employer. This public policy against gender discrimination is
apparently enough to overcome the Legislature's enactment of the small
employer exemption in 1949, see Laws of 1949, ch. 183, sec. 3(b)(i), its
refusal to amend the exemption when it created a private cause of action
under the law in 1973, see Laws of 1973, ch. 141, sec. 3(2); this court's
recognition of the legislative intent in Griffin; and the recent failure of
two bills that would have exposed small employers to liability. To me,
this does not indicate a clear mandate of public policy opening up small
employers to discrimination suits. To the contrary, the legislative and
judicial records indicate a clear mandate of public policy to protect the
small employer.
In addition to the WLAD, the majority briefly cites RCW 49.12.200 as a
source of public policy against gender discrimination to support a claim
for wrongful discharge. I would not reach this statute. Roberts concedes
that she did not raise it at the trial court or the Court of Appeals and,
indeed, she does not argue the question of its applicability in her answer
to the Dudleys' petition for review - only raising it in her supplemental
brief. See Supplemental Br. of Resp't at 18. This is not proper briefing
before this court. See RAP 13.4(d) ('A party may file an answer to a
petition for review. If the party wants to seek review of any issue which
was not raised in the petition for review{} that party must raise that new
issue in an answer.' (emphasis added)); RAP 13.7(b) ('{T}he Supreme Court
will review only the questions raised in . . . the petition for review and
the answer, unless the Supreme Court orders otherwise upon the granting of
the . . . petition.' (emphasis added)).
Even if considered, RCW 49.12.200 does not support the majority. While RCW
49.12.200 does create a right not to be excluded from a profession because
of sex, the only cases applying this law suggest that it is aimed at state
action rather than at private employers. See State v. Brown, 7 Wash. 10,
34 P. 132 (1893); J.S.K. Enter., Inc. v. City of Lacey, 6 Wn. App. 43, 492
P.2d 600 (1971). In any event, while RCW 49.12.200 was enacted in 1890,
the Legislature determined in 1973 that the law as it existed did not
provide enough protection against private gender discrimination in
employment, and so amended RCW 49.60 to do so. See Laws of 1973, ch. 141,
sec. 3. There would have been no need for the Legislature to amend RCW
49.60 to apply to gender discrimination if RCW 49.12.200 applied to private
employment in addition to state action. Again, we 'presume that the
legislature did not engage in vain and useless acts and that some
significant purpose or object is implicit in every legislative enactment.'
Oak Harbor Educ. Ass'n, 86 Wn.2d at 500. We must thus assume that the
Legislature was aware of the protection afforded under RCW 49.12.200 when
it amended RCW 49.60 in 1973, and that it therefore intended to create a
different form of protection than that provided by the existing law. See
Price v. Kitsap Transit 125 Wn.2d 456, 463, 886 P.2d 556 (1994)
(Legislature presumed to know the law in the area in which it is
legislating); Baker v. Baker, 91 Wn.2d 482, 486, 588 P.2d 1161 (1979).
Because RCW 49.12.200 apparently applies to state action and not to
private employers, it cannot be a source of public policy against gender
discrimination by small employers. Even if it does indicate a broader
policy against gender discrimination as a whole, the public policy found in
the statute is not specific enough to trump the small employer exemption in
RCW 49.60.040. The effect of the majority's position is to make the
exemption for small employers 'a vain and useless thing . . . and all
reference to them is an idle expression carrying no weight to extend or
limit the operation of law.' Spring Water Co. v. Town of Monroe, 55 Wash.
195, 198, 104 P. 202 (1909). This despite the fact that '{t}he intent of
lawmakers must be abstracted from a consideration of all the provisions of
an act' like RCW 49.60. Graham v. State Bar Ass'n, 86 Wn.2d 624, 627, 548
P.2d 310 (1976) (emphasis added). In light of this precedent, one shudders
to imagine the policy 'penumbras' of other statutes, entirely unforeseen by
the Legislature, that make the limitations of the statutes themselves
irrelevant and that litigants could now argue support their claims. 'Just
because we do not think the legislators have acted wisely or responsibly
does not give us the right to assume their duties or to substitute our
judgment for theirs. The judiciary is the branch of government that is
empowered to interpret statutes, not enact them.' Hillis v. Department of
Ecology, 131 Wn.2d 373, 390, 932 P.2d 139 (1997). I respectfully dissent.
1 The majority latches onto our decision in Marquis v. City of Spokane, 130
Wn.2d 97, 922 P.2d 43 (1996), as a means of bypassing Griffin by finding a
'{j}udicial basis for public policy against discrimination.' See Majority
at 10. It points to salutatory statements that we made in Marquis
concerning the policy inherent in RCW 49.60, without noting that those
statements were not made in connection with a case that involved, as we
have here and had in Griffin, the question of whether that statute or the
policy therefrom is applicable to a small employer. The majority makes no
effort to reconcile what it now declares is the expansive reach of those
statements in Marquis with our holding in Griffin, which was decided on the
same day. While the majority proclaims that 'in Marquis we affirmed a
strong and clear public policy against discrimination{,}' Majority at 11,
it does not add the necessary caveat that we did so only with respect to a
nonexempt employer. Marquis is simply inapposite here.
2 Perhaps next time they will know to lobby this court instead.
Where is the line that divides the province of the court from that of the
legislature in a matter of this sort? The court is to expound and
administer the laws, and there the judicial function and duty end. . .
.When the judge has declared all the law that enters into the problem, how
much is still left to the determination of the legislator?
State ex rel. Reclamation Bd. v. Clausen, 110 Wash. 525, 533, 188 P. 538,
14 A.L.R. 1133 (1920) (quoting approvingly Perry v. City of Keene, 56 N.H.
514, 531 (1876)).
3 Remarkably, the majority concedes this, writing of SB 5130 that if its
defeat 'demonstrates any legislative intent at all, it simply indicates
{that} if the bill had been enacted the legislature would have removed the
small employer 'exemption' to the provisions of RCW 49.60.' Majority at 14
n.8. This concession makes the majority's position inexplicable.