JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT - ESD 171
No. 94209-9
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
November 9, 2017
discrimination in the hiring process. In the precise words of the district court, “Does
The answer is yes. In accordance with the plain language of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by
FACTUAL AND PROCEDURAL BACKGROUND
A. Jin Zhu v. Waterville School District No. 209
Waterville School District No. 209 hired Zhu as a math teacher in 2006. In 2010, Waterville issued a notice of probable cause for Zhu‘s discharge, which he
appealed. The hearing officer determined that there was not probable cause for discharge and restored Zhu to his position. Jin Zhu v. Waterville Sch. Dist. No. 209, No. CV-10-0333-LRS, 2012 WL 220273, at *2 (E.D. Wash. Jan. 25, 2012) (court order). Zhu then sued Waterville in federal district court, alleging that Waterville had subjected him to racially motivated disparate treatment, a hostile work environment, and retaliation in violation of
Zhu is a United States citizen who emigrated from China in 2004. His complaint alleged that he filed multiple grievances with Waterville regarding hostile and abusive actions by his students. For instance,
Zhu described being called a chink, a communist, and gay by his students; in 2008 Zhu was the subject of a cartoon that depicted a border patrol shooting someone described as a communist chink; and in May, 2009 a student scrawled a hateful racial attack against Zhu on a bathroom wall, saying he hoped Zhu‘s new house would burn down.
Id. at *3 n.2. Zhu alleged that instead of attempting to remedy the situation, Waterville took retaliatory actions against him for filing the grievances, including attempting to discharge him without probable cause. After the district court denied Waterville‘s motion for summary judgment dismissal, the parties settled and Zhu resigned from Waterville in March 2012.
B. Jin Zhu v. North Central Educational Service District - ESD 171
Three months after resigning from Waterville, Zhu applied for a position as a “Math-Science Specialist” with ESD 171. Pretrial order, Zhu v. N. Cent. Educ. Serv. Dist. - ESD 171, No. 2:15-CV-00183-JLQ, at 1 (E.D. Wash. Sept. 8, 2016). ESD 171 is an educational service district that “[p]rovide[s] cooperative and informational services to local school districts,” including Waterville,
employers. The court denied reconsideration. Following a jury trial, Zhu prevailed on his WLAD antiretaliation claim and was awarded damages.
ESD 171 then filed a motion for judgment as a matter of law or for a new trial, challenging the sufficiency of the evidence and the jury instructions, and asking in the alternative that the district court certify to us the question of
[i]f the Washington Supreme Court finds
RCW 49.60.210(1) provides a cause of action to a prospective employee against a prospective employer not involved in the underlying discrimination claim the jury verdict in this case will be upheld. If the Washington Supreme Court findsRCW 49.60.210(1) does not provide such a cause of action, the jury verdict in this case will be vacated.
Id.
ISSUES
A. “Does
B. Is Zhu entitled to attorney fees on review?
ANALYSIS
WLAD “create[s] a private cause of action against any employer engaging in an ‘unfair practice.‘” Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014) (emphasis omitted) (quoting Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788 (1996)).
By rendering a verdict in Zhu‘s favor, the jury has already decided as a question of fact that ESD 171 refused to hire Zhu because of his opposition to Waterville‘s discriminatory practices.2 See Jin Zhu v. N. Centr. Educ. Serv. Dist. - ESD 171, No. 2:15-CV-00183-JLQ, 2016 WL 7428204, at *12 (E.D. Wash. Dec. 23, 2016) (court order). The certified question asks only whether, as a matter of law, the cause of action created by
In accordance with the plain language of
if we answer in the affirmative, then “the jury verdict in this case will be upheld,” Zhu is entitled to attorney fees on review in accordance with RAP 18.1(a) and
A. The answer to the certified question is yes
Since its inception in 1949, WLAD has always contained an antiretaliation
It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
Very few opinions by this court have discussed this provision, and no Washington court has considered whether
We decide this certified question of statutory interpretation as a matter of law. Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487 (2017). In order to give effect to the legislature‘s intent, we begin with the statute‘s plain language.3 Dep‘t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002). When interpreting WLAD, we are particularly mindful that “a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996). To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD‘s provisions must be given “liberal construction.” Id. at 108 (citing
1. The ordinary meaning of the plain language of RCW 49.60.210(1) shows that the answer is yes
The plain language of
discrimination, and (4) suing for racial discrimination is opposition to practices forbidden by WLAD, then
First, for purposes of WLAD, an “employer” is broadly defined as “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.”
Next, as to whether Zhu is a person, WLAD defines a “person” in extremely broad terms to include
one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.
Third, while WLAD does not define “discrimination,” it would defy the ordinary
previously sued Waterville for racial discrimination, ESD 171 discriminated against Zhu.
Finally, discriminating against a person in “terms or conditions of employment” because of race is clearly a practice forbidden by WLAD, and filing a lawsuit for damages based on such discrimination is clearly opposing that practice.
Thus, all the elements of
ESD 171, however, argues that the overall statutory context shows that the legislature intended WLAD‘s antiretaliation provision to be significantly narrower than WLAD‘s provisions prohibiting discrimination based on protected characteristics, such that the antiretaliation provision applies only to a plaintiff‘s current employer and prohibits only adverse actions that affect the plaintiff‘s preexisting employment status. ESD 171 is correct that discerning a statute‘s plain meaning requires us to consult the statute itself, “as well as related statutes or other provisions of the same act in which the provision is found.” Campbell & Gwinn, LLC, 146 Wn.2d at 10.
However, ESD 171‘s interpretation is entirely inconsistent with the plain language, structure, and purpose of WLAD as a whole. We accordingly reject it.
2. As in the rest of WLAD, an “employer” is not limited to the plaintiff‘s current employer for purposes of RCW 49.60.210(1)
ESD 171 argues that
For purposes of WLAD, an “employer” is broadly defined as “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.”
First, ESD 171 correctly notes that
feature of the antiretaliation provision because none of WLAD‘s provisions refer to a “prospective employer” or a “job applicant.” Exactly one provision in WLAD refers to a “prospective employee,”
It is an unfair practice for any employer:
(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification.
(Emphasis added.) We have therefore always treated WLAD references to employers to
Second, ESD 171 argues that the “functionally similar” test Washington courts have applied in other cases should apply here, thus restricting
discriminatory actions. See Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App. 927, 930, 965 P.2d 1124 (1998) (coworker without supervisory authority is not personally liable for retaliation). As the entity making the hiring decision, ESD 171 had complete control over Zhu‘s possible employment, and the “functionally similar” test has no relevance here.
A prospective employer, including ESD 171, easily fits within WLAD‘s definition of an “employer,” and
3. RCW 49.60.210(1) prohibits all forms of discrimination by employers in their capacity as employers
ESD 171 also takes the position that
However, ESD 171‘s proposed interpretation of
Certainly, there are some reasonable inferences we might draw from the explicitly listed forms of prohibited retaliatory discrimination. For instance, because
Likewise, it may be reasonable to infer that because
antidiscrimination lawsuit, persuasively reasoning that a credit union is an ‘“other person‘” for purposes of
Thus, there are likely some limitations to
ESD 171‘s interpretation is further undermined by WLAD‘s statutory structure. Since the time that WLAD was first enacted, it has included the provisions now codified at
First,
Second,
Third,
Fourth,
This structure strongly suggests that “otherwise discriminat[ing]” for the purposes of
However, based on its reading of Washington case law, ESD 171 contends that
In support of its interpretation, ESD 171 relies on Warnek v. ABB Combustion Engineering Services, Inc., 137 Wn.2d 450, 972 P.2d 453 (1999), which held that
Thus, based on its language, context, and structure, the nonexclusive list of prohibited unfair retaliatory practices in
legislative intent to allow retaliatory discrimination in hiring by a prospective employer against a job applicant.
4. The purposes of WLAD would be severely undermined by ESD 171‘s interpretation
Finally, any plain language interpretation of a WLAD provision must consider the legislature‘s express statement of purpose and mandate for liberal construction. These considerations erase any possible doubt about the plain meaning of
WLAD‘s purpose is plain: the “elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions.”
It is well recognized that WLAD, like other laws prohibiting discrimination based on protected characteristics, relies heavily on private individuals for its enforcement. Allison, 118 Wn.2d at 86. This reliance would be unrealistic, to say the least, “if this court does not provide them some measure of protection against retaliation.” Id. at 94; see Burlington, 548 U.S. at 61-67 (observing that if anything, antiretaliation provisions should be interpreted more broadly than provisions prohibiting discrimination based on protected characteristics in order to effect their purpose); Robinson, 519 U.S. at 346 (“exclusion of former employees from the protection of [the statute] would undermine the effectiveness of Title VII by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining“). And it would make little sense to hold that the legislature intentionally undercut its own purposes in enacting WLAD by adopting an antiretaliation provision that allows employers to compile an unofficial “do not hire” list of individuals who have previously opposed discrimination against themselves and others. However, that is exactly what ESD 171 claims it has the right to do.4 We cannot believe that the legislature intended to allow such blatant
retaliatory discrimination in direct contravention of everything WLAD is meant to accomplish.
The answer to the certified question is unambiguously yes.
B. Zhu is entitled to attorney fees
Because Zhu is the prevailing party, we grant his request for reasonable attorney fees on review pursuant to RAP 18.1(a) and
CONCLUSION
In accordance with the language, context, and purpose of WLAD, we hold that
retaliatory discrimination against job applicants. Therefore, the answer to the certified question is yes.
WE CONCUR: