Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1)  Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

(2)  WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.

(3)  After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

(4)  Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

(5)  [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

-Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016).


ISSUE #1:  Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

 

-RULE-

STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION):  The Court reviews findings of fact for substantial evidence. Id. at 256 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings had the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

MEANING OF SUBSTANTIAL EVIDENCE:  Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).

SUBSTITUTE JUDGMENT:  As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

DE NOVO REVIEW:  The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).

 

-ANALYSIS-

In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices. One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents. Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

 

-CONCLUSION-

The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.

 


ISSUE #2:  Did the employees prevail on their disparate treatment claim?

 

-RULE-

WLAD GENERALLY:  “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

DISPARATE TREATMENT:  Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

VALID JUSTIFICATION:  “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991) (internal citation parenthetical phrases omitted). The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).

BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ):  “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

THE BFOQ TEST:  “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

 

-ANALYSIS-

DISPARATE TREATMENT:  In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction. The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id. 

BFOQ DEFENSE:  Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

 

-CONCLUSION-

The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.

 


ISSUE #3:  Did the employees prevail on their hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260. “An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT):  The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d 406-07).

THIRD ELEMENT CRITERIA:  “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment … : the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

 

-ANALYSIS-

In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of sever or pervasive harassment.” Id.

 

-CONCLUSION-

The Court held that “based on the trial court’s factual findings, which  we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”

 


ISSUE #4:  Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

 

-RULE-

REMEDIES:  RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id. 

 

-ANALYSIS-

Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

 

-CONCLUSION-

The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.

 



NOTABLES & IMPLICATIONS:

TITLE VII

[~1]   “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257.

[~2]  “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

[~3]  “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

[~4]  “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id. 

[~5]  “The WLAD ‘shall be consruted liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

[~6]  “RCW 49.60.180 prohibits racial discrimination in employment.” Id.

 


LEARN MORE

If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

(2) [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

(3) Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

(4) [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

(5) [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

-Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013).


ISSUE #1:  Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

 

-RULE-

DISPARATE TREATMENT:  “Disparate treatment is a form of discrimination that occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Id. at 744 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)). “To establish a prima facie disparate treatment claim, the employee-plaintiff must show that the employer treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

PRIMA FACIE TEST (2 OPTIONS):  “A plaintiff can establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.” Id. (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

DIRECT EVIDENCE TEST:  “[A] plaintiff can establish a prima facie case by providing direct evidence that (1) the defendant employer acted with a discriminatory motive and (2) the discriminatory motivation was a significant or substantial factor in an employment decision.” Id. (citing Kastanis, 122 Wn.2d at 491). “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746. Lastly, “a demotion or adverse transfer, or a hostile work environment, may also amount to an adverser employment action.” Id. 

DISCRIMINATORY REMARKS:  The court “generally consider[s] an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002)).

 

-ANALYSIS-

(1) DISCRIMINATORY MOTIVE:  The Court evaluated the case under the first prong of the Direct Evidence Test–that the employer acted with discriminatory motive–and held that “the evidence sufficiently proved that Martinez acted with discriminatory motive toward Alonso.” Id. at 745. In this case, “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay”; “[A]lonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term”; “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent”; “described his speech as that of a ‘ghetto Hispanic'”; and “contrasted themselves to Alonso because they ‘spoke correct English’ unlike him.”

(2) SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION:  In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Initially, Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. The Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746. The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.”

Next, Alonso further argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747. Accordingly, the Court considered derogatory comments made by Martinez and other emloyees as described above in section “(1) Discriminatory Motive”; and it also considered an additional comment allegedly made by Martinez regarding Alonso’s veteran status and PTSD — “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748.

 

-CONCLUSION-

The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id. at 748. It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id. Accordingly, the Court reversed the trial court’s dismissal of his disparate treatment claim.

 


ISSUE #2:  Did Alonso establish a prima facie hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)). “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT):  To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT):  “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)). “Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT):  “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

 

-ANALYSIS-

(1) UNWELCOME:  In this case, the Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment.

(2) HARASSMENT BECAUSE OF PROTECTED CLASS:  The Court considered Alonso’s offered evidence regarding military status–Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s; regarding race–Martinez and others subjected Alonso to racially derogatory language (established above); and regarding disability–he was a victim of open mocking for his speech impediment (established above). Accordingly, the court held that Alonso satisfied this element in establishing a prima facie hostile work environment claim.

(3) HARASSMENT AFFECTED TERMS & CONDITIONS:  The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752. The Court then held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

(4) HARASSMENT IMPUTABLE TO EMPLOYER:  The Court found that Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. Accordingly, the Court determined that Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. The Court then found that Martinez participated in some of the harassment as described above.  Ultimately, the Court held that Alonso established that the harassment is imputable to the employer through supervisor Martinez.

 

-CONCLUSION-

The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal  of his hostile work environment claim.

 


ISSUE #3:  Did the superior court err in dismissing Alonso’s retaliation claim?

 

-RULE-

UNLAWFUL RETALIATION:  “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210). “To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action.” Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

PROTECTED ACTIVITY:  “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

GENERAL COMPLAINTS:  “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

 

-ANALYSIS-

The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity. Here Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

 

-CONCLUSION-

The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim.

 



NOTABLES & IMPLICATIONS:

ADVERSE TRANSFER

[~1]  Transfer to a position with the same work for the same pay and within the same union contract classification can still be considered an adverse transfer if the former position came with some benefits (e.g., newer vehicle, cellular phone, preference in employer-supplied workstations, computers, desk telephones, etc.) that the new position does not provide. See id. at 746.

HOSTILE WORK ENVIRONMENT (PROTECTED CLASS)

[~2]  Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

HOSTILE WORK ENVIRONMENT (TERMS & CONDITIONS)

[~3]  An “employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised an inference that condition resulted from hostile work environment.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

[~4]  A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

TITLE VII FOR GUIDANCE 

[~5]  “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

 


LEARN MORE

If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding


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CASE SUMMARY:

(1) [In 1999,] Petitioners, two local chapters of the Fraternal Order of Eagles, Tenino and Whidbey Island Aerie, and several female members of the Tenino Aerie, …[sued the Grand Aerie in the Thurston County Superior Court claiming that the male-only admission policy violated the Washington Law Against Discrimination (WLAD) and Washington’s Equal Rights Amendment.]

(2) [In 2000,] … the trial court granted Petitioners’ summary judgment motion [as to WLAD] concluding that the Eagles may not discriminate on the basis of gender and must admit women into membership.

(3) Respondent Eagles … [timely appealed; and in 2001, the Court of Appeals] reversed the trial court, concluding that RCW 49.60.040(10) [(currently RCW 49.60.040(2))] is not ambiguous and, under a literal interpretation of the statute, fraternal organizations are ‘automatically excluded’ because the wording of the statute indicates the Legislature exempted them from its application without the necessity of examining whether they are ‘distinctly private.’

(4) [In 2002, the Supreme Court granted review of the Court of Appeals decision and reversed. This article addresses solely the Supreme Court majority opinion.

-Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002)


ISSUE #1:  Does the Washington Law Against Discrimination require a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law?

 

-RULE-

LEGISLATIVE INTENT: The Washington Law Against Discrimination (WLAD) is a “broad remedial statute,” and its purpose is “to prevent and eradicate discrimination on the basis of race, creed, color, national origin, sex or disability in public accommodations.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224, 237, 59 P.3d 655 (Wash. 2002) (internal citations omitted). The WLAD should be interpreted in a way that is consistent with legislative intent. Id. at 255. At the outset, legislative intent is determined from the purpose section which broadly prohibits discrimination in settings open to the public. Id. (internal citations omitted). The Legislature mandated a liberal interpretation of WLAD and also intended a liberal reading of what constitutes a public accommodation. Id.  (internal citations and quotation marks omitted).

PUBLIC ACCOMMODATION: WLAD broadly defines the term “public accommodation” to include: [A]ny place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities … or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or … where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls … PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter… . Id. at 237-38 (citing RCW 49.60.040(10) [currently RCW 49.60.040(2))) (internal citations omitted) (emphasis added).

 

-ANALYSIS-

DISTINCTLY PRIVATE v. AUTOMATIC EXEMPTION:  The Court established that the questions presented was specifically whether the Washington Law Against Discrimination requires a “fraternal organization” to be “distinctly private” in order to qualify for exemption under the law. The trial court interpreted RCW 49.60.040(10) (currently RCW 49.60.040(2)) as exempting “fraternal organizations” from the WLAD, but only if the organizations could prove they were “distinctly private” in nature; whereas the Court of Appeals subsequently read the WLAD to automatically exclude fraternal organizations from application of the prohibitions in RCW 49.60.040(10) (currently RCW 49.60.040(2)). To resolve the question presented, the Supreme Court considered legislative intent declaring that to ascertain it, the court resorts to (a) legilsative history, (b) statutory construction, and (c) relevant case law. Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 243.

LEGISLATIVE HISTORY:  The Court considered the legislative history and found, inter alia, that the “WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon alleged violation of his or her civil rights.” Id. at 247. (internal citations and quotation marks omitted). Moreover, WLAD exceptions should be narrowly construed. Id. (internal citations omitted). Accordingly, the Court found that “reading the proviso in RCW 49.60.040(10) [currently RCW 49.60.040(2)] to exclude ‘fraternal organizations,’ without determining their public, private, or religious nature, is inconsistent with the purpose of the WLAD.” Id. at 255 (modification to original). Thus, it’s consistent with legislative intent to interpret the WLAD to exclude organizations from its reach that have been determined to be distinctly private. Id.

STATUTORY CONSTRUCTION:  As a general principle, an unambiguous statute is not subject to judicial construction. Id. at 239 (internal citations omitted). The Court found that “a statute is ambiguous if it can reasonable be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted). In this case, the Court applied various canons of statutory construction while considering the arguments of the parties; and it found that RCW 49.60.040(10) (currently RCW 49.60.040(2)) is ambiguous and thus subject to judicial construction.

RELEVANT CASE LAW:  The court in Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), declared the following list of factors (hereinafter, “Roberts Factors“) may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case.

 

-CONCLUSION-

RCW 49.60.040(10) (currently RCW 49.60.040(2)) is subject to judicial interpretation because it is ambiguous. The Court found that “it is consistent with legislative intent to interpret RCW 49.60.040(10) (currently RCW 49.60.040(2)) to exclude distinctly private organizations from the purview of the WLAD.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 256. The WLAD requires a “fraternal organization” to be distinctly private” in order to qualify for exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2)) — the “fraternal organization” is not automatically exempted. Id. “Distinctly private” organizations may be determined by applying the Roberts Factors. Id.

 


ISSUE #2:  Did the Fraternal Order of Eagles qualify for the “distinctly private” exemption under RCW 49.60.040(10) (currently RCW 49.60.040(2))?

 

-RULE-

SUMMARY JUDGMENT:  Summary judgment is appropriate if there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 256.

ROBERTS v. UNITED STATES JAYCEES FACTORS:  As mentioned above, the following Roberts Factors may be used as framework for inquiry to determine the “distinctly private” exemption: (1) size, (2) purpose, (3) policies, (4) selectivity, (5) public services offered, (6) practices, and (7) other characteristics pertinent to a particular case. The Court determined that “emphasis should be placed on whether the organization is a business or a commercial enterprise and whether its membership policies are so unselective and unrestrictive that the organization can fairly said to offer its services to the public.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 251.

 

-ANALYSIS-

In this case, the Court first concluded that the Petitioners and Respondents agreed that there remained no genuine issue of material fact following the orders on summary judgment granted by the trial court. Id. at 256. The Court then considered the trial court record and evaluated the trial court’s application of the Roberts Factors. Id. at 254.

 

-CONCLUSION-

The Court concluded that the trial court properly analyzed the Roberts Factors in relation to the established facts to determine if there remained any issue of material fact on the question whether the Eagles is a distinctly private organization. The Court found that “the trial court properly granted summary judgment after concluding there remained no issue of material fact on the question whether the Fraternal Order of Eagles is a distinctly private organization and that Respondents Eagles are not entitled to exemption under the WLAD, RCW 49.60.040(10) (currently RCW 49.60.040(2)).” Ultimately, the Court held that “the trial court was correct in concluding that Respondents Eagle may not discriminate on the basis of gender and must admit women into membership.” Id. at 257.

 


NOTABLES & IMPLICATIONS:

WLAD HISTORY

[~1]  In 1889, the Washington State Legislature enacted the State’s first anti-discrimination law, a civil rights act, which “granted to all persons full and equal enjoyment of the public accommodations … applicable alike to all citizens of whatever race, color, or nationality.” Fraternal Order of Eagles, Tenino Aerie, 148 Wn.2d at 243 (internal citations omitted.)

[~2]  In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

[~3]  In 1909, the civil rights act was codified, and over time it enlarged the sphere of what presently is considered places of “public accommodation.” Id. at 243-44 (internal citations omitted.)

[~4]  The civil rights statute is not the same as what is currently the Washington Law Against Discrimination, RCW 49.60. In 1953, the civil rights statute was amended and codified as RCW 9.91.010, and it provided “a private cause of action for damages and remedies” for individuals experiencing racial discrimination because of race. Id. at 244 (internal citations omitted).

[~5]  WLAD was enacted in 1949 “to prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. (internal citations omitted).

[~6]  WLAD also granted a state agency, known as the State Board Against Discrimination, “jurisdiction and powers to carry out the purposes of the Act.” Id. (internal citations omitted). However, the Legislature failed to mandate private civil actions leaving the State Board with “exclusive jurisdiction over enforcement of the Act.” Id. (internal citations omitted). That State Board is now called the Washington State Human Rights Commission.

[~7]  In 1957,  the WLAD was amended “to provide any person the right to pursue any action or remedy for a violation of that person’s civil rights.” Id. (internal citations omitted).

[~8]  In 1971, the State Board was designated as the Washington State Human Rights Commission, and the Legislature “granted it jurisdiction and powers to carry out the provisions of the … [WLAD] and the policies and practices of the commission in connection therewith.” Id. at 237 (internal citations and quotation marks omitted). “The Commission is authorized to receive, impartially investigate, and pass upon complaints alleging unfair practices defined by the Act.” Id. (internal citations and quotation marks omitted).

[~9]  By 1973, “the right to pursue a cause of action for violation of the general civil right to be free from discrimination and free from unfair practices” was established; however, “the jurisdiction of the Human Rights Commission continued to be limited to unfair practices.” Id. (internal citations omitted).

[~10]  Over time, the Legislature has expanded the scope of WLAD by enacting amendments to include unfair practices in financial institutions, credit transactions, insurance transactions, and real estate transactions. Id. at 246 (internal citations omitted).

STATUTORY CONSTRUCTION

[~11]  “The construction of a statute is a question of law that the court reviews de novo.” Id. at 239 (internal citations omitted).

[~12]  “In interpreting a statute, the primary objective of the court is to ascertain and carry out the intent and purpose of the Legislature in creating it.” Id. (internal citations omitted).

[~13]  “To determine legislative intent, the court looks first to the language of the statute.” Id. (internal citations omitted).

[~14]  “If the statute is unambiguous, its meaning is derived from the plain language of the statute alone.” Id. (internal citations omitted).

[~15]  “Legislative definitions provided in a statute are controlling, but in the absence of a statutory definition, courts may give a term its plain and ordinary meaning by referencing to a standard dictionary.” Id. (internal citations omitted).

[~16]  The “court will avoid literal reading of a statute which would result in unlikely, absurd, or strained consequences.” Id. (internal citations omitted).

[~17]  “An unambiguous statute is not subject to judicial construction.” Id. (internal citations omitted).

[~18]  “A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.” Id. at 239-40 (internal citations omitted).

[~19]  “The first role of a court is to examine the language of a statute while adhering to the Legislature’s intent and purpose in enacting it.” Id. at 240 (internal citations omitted).

WLAD LEGISLATIVE INTENT

[~20]  The purpose of the WLAD is “to deter and eradicate discrimination in Washington … [and it] is a policy of the highest order.” Id. at 246 (internal citations omitted).

[~21]  The Washington Law Against Discrimination “contains a sweeping policy statement that strongly condemns many forms of discrimination.” Id. at 246-47 (internal citations omitted).

[~22]  “The WLAD requires liberal construction of its provisions in order to accomplish the purposes of the law and states that nothing contained in the law shall 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.” Id. at 247 (internal citations and quotation marks omitted).

[~23]  WLAD “exceptions should be narrowly construed.” Id. (citing Phillips v. City of Seattle, 111 Wash.2d 903, 908, 766 P.2d 1099 (1989)).

[~24]  The WLAD should be interpreted in a manner consistent with legislative intent. Id. at 255. (internal citations omitted).

[~25]  The Legislature mandated liberal interpretation of the WLAD. Id. (internal citations omitted).

WLAD GENERALLY 

[~26]  In 1949, the Washington Legislature enacted the Washington Law Against Discrimination as “a broad remedial statute” designed to “prevent and eliminate discrimination based on race, creed, color, or national origin in employment.” Id. at 237 (internal citations omitted).

[~27]  “The act recognizes that the right to be free from such discrimination is a civil right enforceable in private civil actions by members of the enumerated protected classes.” Id. (internal citations omitted).

[~28]  “Although the rights enumerated include employment, public accommodation, assemblage and amusement, the protected rights are not limited to those.” Id. at 237 (referencing RCW 49.60.030(1)).

 


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