Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991)

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) Allison sued the Housing Authority of the City of Seattle [(hereinafter, ‘Housing Authority’)], claiming, among other things, that the Housing Authority retaliated against here for filing an age discrimination complaint when she was released in a reduction in force.

(2) In a special verdict form, a jury found that the Housing Authority had discriminated and/or retaliated against Allison when she was laid off.

(3) The Housing Authority appealed to the Court of Appeals, claiming that the jury instruction on proximate causation for a retaliation claim was erroneous.

(4) That jury instruction required Ms. Allison to show that her discharge was motivated ‘to any degree by retaliation.’

(5) On appeal, the Washington State Court of Appeals Division I reversed and remanded the case, holding that the jury instruction should have required Allison to show that, but for filing a discrimination complaint, she would not have been discharged.

(6) [The WA Supreme Court] declined to adopt either the ‘but for’ standard advanced by the Court of Appeals or the ‘to any degree’ standard used by the trial court.

(7) [The WA Supreme Court] adopt[ed] an intermediate standard for causation, a ‘substantial factor’ approach, and remanded this case to the trial court.

-Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 81 (Wash. 1991).


ISSUE #1:  What is the appropriate standard of causation when an employee brings a claim of retaliatory discharge under RCW 49.60.210?

 

-RULE-

The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010). The WLAD requires that it “shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020). In resolving a question of statutory construction, the Court will “adopt the interpretation which best advances the legislative purpose.” Id. at 86 (internal citations and quotation marks omitted). Federal case law “is not unequivocal, and is only persuasive authority.” Id. at 91. And “Title VII differs from RCW 49.60 in that Title VII does not contain a provision which requires liberal construction for the accomplishment of its purposes.” Id. at 88.

 

-ANALYSIS-

The Court evaluated the issue based on several argument categories as follows: (1) arguments based on the language of RCW 49.60; (2) arguments based on Federal and Washington state case law; (3) arguments based on public policy considerations; and (4) the Wilmot case.

(1) LANGUAGE OF RCW 49.60:  The Court determined that the “language of RCW 49.60 supports a more liberal standard of causation than the ‘but for’ standard adopted by the Court of Appeals. Id. at 85. The Housing Authority utilized Title VII cases for analogy and attempted to argue theoretically higher causation requirements under RCW 49.60.180 (discrimination) should also be applied to RCW 49.60.180 case” and, thus, such a standard “may be illusory”; that Title VII differs from RCW 49.60 because it “does not contain a provision which requires liberal construction for the accomplishment of its purposes”; and that “the ‘but for’ standard of causation adopted by the Court of Appeals in the instant case would negatively affect enforcement of WLAD Id. at 88.

(2) FEDERAL & STATE CASE LAW:  The Court considered various case law offered by the parties at both the federal and state level. It then concluded that federal case law does not give clear support for the adoption of a stringent “but for” standard of causation, and state case law does not directly address the issue of whether the liberal “to any degree” language should be used in jury instructions; and the Court has never approved the “to any degree” standard. Id. at 91. “Because federal law is not unequivocal, and is only persuasive authority, we adopt a standard that best corresponds with the language and policies contained in this state’s antidiscrimination law.” Id. at 91.

(3) PUBLIC POLICY CONSIDERATIONS:  The Court evaluated policy considerations at opposite ends of the dichotomy — the “but for” test on the one end and the “to any degree” test on the other. It then reasoned that competing policy considerations dictate that the most sensible approach is to adopt an intermediate standard test–the “substantial factor” approach–generally applied in multiple causation cases. Id. at 95. This would address the issue of both legitimate and illegitimate motives that often lurk behind discriminatory or retaliatory discharge while preventing employees from abusing the protection that the–“to any degree”–lower standard of causation would give them.

(4) THE WILMOT CASE:  The Court then applied the public policy considerations that it expressed in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18; a case in which the court applied the “substantial factor” approach to a retaliation claim under RCW 51.48.025 for filing a workers’ compensation claim. Particularly, the court analogized Wilmot to the instant case by explaining (a) that in both cases, the relevant statutes prohibit an employer from retaliating against an employee for opposing discrimination; and (b) that under both statutes, “employees are at a distinct disadvantage in a retaliation case because they must prove causation without the benefit of the employer’s own knowledge of the reason for the discharge” — “an employee does not have the access to proof that an employer usually has.” Id. at 96.

 

-CONCLUSION-

The Court in this case held that a “plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Id. at 96. It then remanded the cause to the trial court for retrial on the issue of whether age discrimination and/or retaliation caused Allison’s discharge.

 


ISSUE #2:  Is the evidence in this case insufficient to support an inference that discrimination and/or retaliation caused Allison’s discharge?

 

-RULE-

(The Court evaluated an unpublished portion of the Court of Appeals’ opinion in this case)

Testimonial evidence that supports an inference of discrimination and/or retaliation, when looked at in a light most favorable to the plaintiff, may be sufficient to allow a case to go to the jury. See id. at 98.

 

-ANALYSIS-

The employer (Housing Authority) in this case argued that there was insufficient evidence to support an inference that discrimination and/or retaliation caused Allison’s discharge. Id. at 96.

DISCRIMINATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s discrimination claim: (a) Allison’s manager made remarks about “little old ladies”; (b) the manager became hostile towards Allison when she learned Allison’s true age of 62; (c) after the manager learned Allison was in her sixties, her ratings of Allison declined; and (d) the manager refused Allison’s request for additional work. Id. at 97.

RETALIATION EVIDENCE: The Court considered the following trial court evidence regarding Allison’s retaliation claim: (a) Allison’s manager gave her an allegedly unwarranted reprimand; (b) after Allison filed her suit, the manager gave Allison her lowest performance evaluation; and (c) an “aging checklist” was pinned on Allison’s cubicle after she filed her discrimination suit. Id.

 

-CONCLUSION-

The Court held that “based on the evidence listed above, the Court of Appeals was correct in its conclusion that there was thin, but sufficient testimony for this case to go to the jury.”

The Court also addressed attorney’s fees.

 


NOTABLES & IMPLICATIONS:

ATTORNEY’S FEES

[~1]  RCW 49.60.030(2) has been interpreted as granting parties to attorney fees on appeal. Id. at 98 (citing Fahn v. Cowlitz Cy., 95 Wn.2d 679, 685, 628 P.2d 813 (1981); Pannell v. Food Servs. of Am., 61 Wn.App. 418, 449-50, 810 P.2d 952 (1991)).

CAUSATION

[~2]  “The ‘but for’ standard of causation adopted by the Court of Appeals in Allison will negatively affect enforcement of the law against discrimination.” Id. at 88.

MCDONNELL DOUGLAS APPROACH

[~3]  Under the McDonnell Approach–McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)–“the plaintiff must establish a prima facie case, and then the burden of production shifts to the defendant to state a legitimate reason for the employment decision; the plaintiff can attempt to prove that the employer’s offered reason is a pretext.” Id. at 88-89 (internal citations omitted).

[~4]  Under the McDonnell Approach, “the burden of persuasion remains at all times upon the pliantiff/employee” in a discrimination or retaliation claim. Id. at 90, 93 (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 363, 753 P.2d 517 (1988); and citing Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991), respectively).

[~5]  Under the McDonnell Approach, the “federal cases provide only guidance” and “even the McDonnell test should not be rigidly applied. Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988)).

WLAD GENERALLY

[~6]  The WLAD “does not provide any criteria for establishing a discrimination case.” Id. at 88 (citing Grimwood, 110 Wn.2d at 361).

[~7]  The WLAD “contains a sweeping policy statement strongly condemning many forms of discrimination.” Id. at 85 (citing RCW 49.60.010).

[~8]  The WLAD requires that “this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Id. at 85-86 (citing RCW 49.60.020).

[~9]  The enforcement of the WLAD “depends in large measure on employee’s willingness to come forth and file charges or testify in discrimination cases. Id. at 86.

[~10]  “Plaintiffs bringing discrimination cases assume the role of a private attorney general, vindicating a policy of the highest priority.” Id. (internal citations and quotation marks omitted).

 


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)).

 


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.