Kilian v. AtkinsonKilian v. Atkinson
Lead Opinion
— Thе United States District Court for the Eastern District of Washington, in an action pending in that court, by order dated October 9, 2001, certified to this court one question of state law asking whether an age discrimination claim can be asserted by an independent contractor under
QUESTION PRESENTED
The sole question in this case is the certified question whether an age discrimination claim can be asserted by an independent contractor under
STATEMENT OF FACTS
In this opinion the court is concerned only with a claim of age discrimination in a case pending in the United States District Court for the Eastern District of Wаshington.
Plaintiffs brought an action in the United States District Court for the Eastern District of Washington under
With regard to the claims of age discrimination, Plaintiffs contend that when the City denied extension of their contract for the bumper boat concession on February 10, 2000, Plaintiff N. John Kilian was 60 years old and that the City renewed a lease agreement with a go-kart concessionaire who was substantially youngеr than he. Plaintiffs claim that Mr. Kilian’s age was a substantial factor in the City’s refusal to renew the bumper boat concession agreement.
By order dated October 9, 2001, the Honorable Alan A. McDonald, presiding over the case in the United States District Court, granted Defendants’ motion for summary judgment on Plaintiffs’ age discrimination claim under
Defendants’ Motion for Summary Judgment... is DENIED with respect to plaintiffs’ freedom of speech claims ....
Defendants’ Motion for Summаry Judgment... is GRANTED with respect to plaintiffs’ age discrimination claim pursuant toRCW 49.44.090.
Defendants’ Motion for Summary Judgment... is STAYED with respect to plaintiffs’ age discrimination claim pursuant toRCW 49.60.030 pending response from the Washington Supreme Court on the certified question.
DISCUSSION
Statutory Construction
This court in interpreting a statute ascertains and gives effect to the intent and purpose of the Legislature in creating it.
When a statute is ambiguous, this court must construe the statute in order to effectuate the intent of the Legislature.
Washington Law Against Discrimination
The Washington Law Against Discrimination, chapter 49.60 RCW, under
(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability ... is recognized as and deсlared to be a civil right. This right shall include, but not be limited to:
(a) The right to obtain and hold employment without discrimination;
(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 ....
(Emphasis added.)
Age is not included in the listing of protected classes under
Plaintiffs acknowledge that on its face
The Legislature’s broad policy statement for chapter 49.60 RCW does not, standing alone, support Plaintiffs’ argument that agе is included among the protected classes listed in
The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability . . . are 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. . . .
(Emphasis added.)
A declaration of policy in a legislative act, however, serves only as an important guide in determining the intended effect of the operative sections.
That a statutory cause of action for age discrimination is available only under
No person shall be considered to have committed an unfair practice on the basis of age discrimination unless the practice violatesRCW 49.44.090. It is a defense to any complaint of an unfair practice of age discrimination that the practice does not violateRCW 49.44.090.
(Emphasis added.)
By its language,
Amicus Curiae Washington State Trial Lawyers Association Foundation asks this court to answer the certified question in the affirmative, citing gratuitous language by the court in Human Rights Commission v. Cheney School District Number 30 which, without discussion, stated that the petitioner could sue for damages for age discrimination under
This court in Cheney did observe that the Legislature has provided no authority for the Washington State Human Rights Commission to award damages for humiliation and mental suffering, but that “[a] person who has suffered humiliation caused by discrimination may seek relief through a civil action as provided for under RCW 49-.60.030.”
As the court stated in Cheney, “[t]he sole issue in the . . . case [was] whether a hearing tribunal of the Washington State Human Rights Commission . . . has authority to award compensation for humiliation and mental suffering caused by unlawful age discrimination. We hold it has no such authority.”
It is obvious from a reading of the case that, despite two gratuitous references to
Plaintiffs also contend that
The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof. 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 race, color, creed, national origin, sex, mаrital status, age, or the presence of any sensory, mental, or physical disability, other than a law which purports to require or permit doing any act which is an unfair practice under this chapter. 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.
(Emphasis added.)
The Legislature has chosen to protect employees from age discrimination only under
The legislative history of chapter 49.60 RCW does not support creation of a statutory cause of aсtion for independent contractors for age discrimination under RCW 49-.60.030. The statute was first enacted in 1949. The Legislature has since amended
Plaintiffs point out that
Plaintiffs’ reliance on Marquis is misplaced because that case is readily distinguishable from this case. In Marquis, this court interpreted
SUMMARY AND CONCLUSIONS
The sole issue in this case is the question certified from the United States District Court for the Eastern District of Washington asking this court to answer “whether an age
Under
The statutory scheme for chapter 49.60 RCW, the Washington Law Against Discrimination, does not support adding “age” to the protected classes listed under RCW 49-.60.030(1). Neither does it support reading into the statute a cause of action for an independent contractor claiming age discrimination. Inclusion of “age” in the Legislature’s statement of purpose in
The Law Against Discrimination, chapter 49.60 RCW, is not ambiguous, nor is the section referred to in the certified question,
This court will not add language to an unambiguous statute even if it believes the Legislature intended something else but did not adequately express it. In determining lеgislative intent, the court looks at the entire statute, and not merely at a single sentence or a single phrase. Where possible, statutes should be read together to determine the legislative purpose to achieve a harmonious total statutory scheme which maintains the integrity of those statutes.
The Washington Law Against Discrimination, chapter 49.60 RCW, was first enacted in 1949. The Legislature has since amended
We answer the certified question from the United States District Court for the Eastern District of Washington in the negative: an age discrimination claim cannot be asserted by an independent contractor under
Bridge and Owens, JJ., concur.
Notes
There being no trial record before this court, for contextual purposes only, the facts stated are based substantially upon the United States District Court “Order Denying Summary Judgment In Part, Inter Alia,” Sections I, II, and III D. No conclusion is intended on any facts stated. Actual facts must be determined by the trier of fact in the United States District Court.
Under the contract, the Plaintiffs were not employees of the City of Chelan, but were self-employed proprietors of a concеssion business.
Limstrom v. Ladenburg,
State v. Keller,
Id.
Wash. State Coalition for the Homeless v. Dep’t of Soc. & Health Servs.,
Keller,
Cockle v. Dep’t of Labor & Indus.,
Davis v. State ex rel. Dep’t of Licensing,
Keller,
Buchanan v. Simplot Feeders Ltd. P’ship,
Keller,
Id.
Davis,
Progressive Animal Welfare Soc’y v. Univ. of Wash.,
Associated Gen. Contractors v. King County,
Oliver v. Harborview Med. Ctr.,
Id.
Id.
Id. at 124.
Id. at 119.
Marquis,
Bird-Johnson Corp. v. Dana Corp.,
Marquis,
Id. at 113.
Concurrence Opinion
(concurring) — I agree with the majority that
In Marquis v. City of Spokane, this court held that an independent contractor who is discriminated against in the making or performance of a contract for employment has a cause of action for violation of the right to be free from discrimination found in
The plaintiffs, relying on Marquis, urge this court to similarly find that they have an independent contractor cause of action, although here for age discrimination against the City of Chelan. Neither Marquis nor the statute supports such a result. The key difference between Marquis, which found a cause of action for an independent contractor, and this case, is that the claim here does not involve the rights of any persons enumerated in
“Age” is not a protected class listed in
The “shall include, but not be limited to” language in section .030(1) was critical to the decision reached by this court in Marquis. This broad listing of rights, the court reasoned, is by its terms not exclusive, and thus leaves uncertainty as to all the rights encompassed. The court said, “
By its clear language,
However,
While there are no rights respecting age discrimination in
Plaintiffs were not employees, and the City of Chelan was not their employer, as they аffirmatively state: “Under the [concession] contract, the Kilians were self-employed proprietors of a concession business in the City. They were not employees of the City.” Pl.[s] Opening Br. at 2; see Marquis,
Moreover, as the federal district court correctly ruled, they are barred by
It shall be an unfair practice:
(1) For an employer or licensing agency, because an individual is forty years of age or older, to refuse to hire or employ or licеnse or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment....
(2) For any employer, licensing agency or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses any limitation, specification or discrimination respecting individuals forty years of age or older ....
Thus, like
The only other relevant provisions of chapter 49.60 RCW pertaining to age discrimination that are cited by plaintiffs are
It is clear that thе Legislature did not intend to include age in
“Age” was added to the class protected under
This court should not presume the Legislature simply overlooked including “age” as a classification entitled to protection under
Because there are no alleged facts that would constitute a violation of any of the provisions of chapter 49.60 RCW, plaintiffs have no cause of action under
Alexander, C.J., and Johnson, J., concur with Madsen, J.
Marquis explicitly held that because an independent contractor is not an employee under the chapter, a contractor has no cause of action under
This language was later altered to conform to use of the term “disability” rather than “handicap.”
Laws of 1997, ch. 271, § 2; Laws of 1995, ch. 135, § 3; Laws of 1993, ch. 510, § 3; Laws of 1993, ch. 69, § 1; Laws of 1984, ch. 32, § 2; Laws of 1979, ch. 127, § 2; Laws of 1977, Ex. Sess., ch. 192, § 1; Laws of 1974, Ex. Sess., ch. 32. § 1; Laws of 1973,1st Ex. Sess., ch. 214, § 3; Laws of 1973, ch. 141, § 3; Laws of 1969, Ex. Sess., ch. 167, § 2.
Dissenting Opinion
(dissenting) — I conclude that the plain language of
THE CERTIFIED ISSUE
The issue certified by the United States District Court for the Eastern District of Washington: “Does
STATUTORY CAUSE OF ACTION
To answer the United States District Court’s certified question, we must determine whether an age discrimination claim can be asserted under
I agree with the majority that the Legislature’s broad policy statement for chapter 49.60 RCW, standing alone, would not be sufficient to create a cause of action for age discrimination. But
We do not look to the Legislature’s broad policy statement in
Finally, as we noted in Marquis, the Washington Law Against Discrimination “requires liberal construction in order to accomplish the purposes of the law.” Marquis,
INDEPENDENT CONTRACTOR STATUS
In Marquis, we held that the broad recognition of rights contained in
The issue considered in Marquis was limited to the protected classes set forth in
CONCLUSION
The certified question requires us to determine the scope of injury the Legislature meant to redress. The statutory cause of action under
The plain language of
The guaranty of a remedy for any person whose rights and privileges are infringed by the discriminatory acts of another is not membership in a protected class, but violation of an antidiscrimination standard of Washington’s law against discrimination chapter. I would therefore answer the question certified by the United States District Court in the affirmative:
Sanders and Ireland, JJ., concur with Chambers, J.
This chapter shall be known as the “law against discrimination”. It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitutiоn of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of.. . age . . . are 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.
It is an unfair practice for any employer:
(1) To refuse to hire ... because of age ....
(2) To discharge or bar any person from employment because of age ....
(3) To discriminate against any person . .. because of age ....