Roberts v. DudleyRoberts v. Dudley
- Reporters:
- ,
- Before:
- Sanders
Lead Opinion
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.
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
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,
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
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 pub-lie 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, 878-79, 52 Ill. Dec. 13 (1981)).
(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 Transportation Services, 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. Id. 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
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 Authority, 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
(a)
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.
Dudley argues
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).
(b) The law against discrimination,
A second statutory source of public policy against sex discrimination in employment relied upon by Roberts is the Law Against Discrimination,
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.
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[.]
Furthermore the “exemption” from the statute for small employers is found neither
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.
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 har 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.
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,
AlthoughRCW 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
the employer size definition ofRCW 49.60.040 does not apply outside chapter49.60 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
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 aha sexual harassment in violation of the law against discrimination,
The issue in Griffin was therefore whether an employer with fewer than eight employees was exempt from the remedies provided under
We hold employers of fewer than eight employees are statutorily exempt from these remedies provided underRCW 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
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 inRCW 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
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.
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.
Third, a plaintiff can recover “the cost of suit including reasonable attorneys’ fees” after successfully asserting a claim under the law against discrimination.
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 he distinguished and does not control. The public policy against gender discrimination is at the core of
Ill
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
Smith, Johnson, Alexander, and Ireland, JJ., concur.
Notes
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.”)
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.
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”)
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., whistle-blowing.
Gardner, 128 Wn.2d at 936.
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 79 (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.
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. Id. at 827. Schonauer is therefore unhelpful to the determination of the present case.
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.,
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
The dissent attacks a straw man when it argues there is no statutoiy 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 81-82.
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, 1999 OK 101, 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 though those statutes exempt small employers. Molesworth v. Brandon, 341 Md. 621, 637, 672 A.2d 608, 616 (1996) (“We hold . . . that Art. 49B, § 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, § 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 § 14.” (emphasis added)); Kerrigan v. Magnum Entertainment, Inc., 804 F. Supp. 733, 736 (D. Md. 1992) (“Because art. 49B [of the Maryland code] evidences o clear polity against employment discrimination, and because this Court finds no legislative intent on the part of the General Assembly to exempt small businesses from the polity 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 . . . .”) (emphasis added) (footnote omitted).
See discussion of Griffin v. Eller, infra at 73-77.
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.
We do not here recognize a tort of “gender discrimination.” Cf. Dissent at 86. Rather, we recognize the long-established tort of wrongful discharge may be established when the discharge is wrongfully accomplished on account of gender.
Concurrence Opinion
(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),
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.
Johnson and Ireland, JJ., concur with Alexander, J.
Article 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 Opinion
(concurring) — I concur in the result. Lynne Elizabeth Roberts has a cause of action under
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,
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
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.
Dissenting Opinion
(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,
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
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
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,
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, 1995 OK 101, 905 F.2d 223, 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
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
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, 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
In sum, the majority would conclude that
In addition to the WLAD, the majority briefly cites
Even if considered,
Because
Guy, C.J., concurs with Madsen, J.
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 “[¡judicial basis for public policy against discrimination.” See Majority at 66. It points to salutatory statements that we made in Marquis concerning the policy inherent in
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)).
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