Statutory Construction Archives - Washington Employment Law Digest

April 27, 2022May 26, 2022

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)

This is a case summary of Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996). Subjects include, but are not limited to the following:

» WASHINGTON LAW AGAINST DISCRIMINATION (“LAD” or “WLAD”)

» PUNITIVE (EXEMPLARY) DAMAGES

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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**Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)**

case summary – 7 Facts:

[1] On March 16, 1990, Defendant North Coast Life Insurance Co. terminated Plaintiff Julie Dailey’s employment.

[2] Dailey and co-Plaintiff Gregory Dailey filed a wrongful termination claim that included an allegation of sex discrimination in violation of the LAD and specifically sought punitive damages.

[3] Both parties moved for partial summary judgment on the availability of punitive damages under the LAD.

[4] The trial court granted Plaintiffs’ motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively.

[5] Defendants appealed.

[6] At the request of the Court of Appeals, the Supreme Court accepted certification of the case.

[7] We now reverse.

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996) (hyperlinks added). This case summary includes both the Majority and Concurring Opinions.

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

[1-1] WA STATE SUPREME COURT HAS CONSISTENTLY DISAPPROVED PUNITIVE DAMAGES AS CONTRARY TO PUBLIC POLICY: “Since its earliest decisions, this court has consistently disapproved punitive damages as contrary to public policy.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 574 (citing Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 50-56, 25 P. 1072 (1891)).

[1-2] PUNITIVE DAMAGES IMPOSE ON DEFENDANT A PENALTY RESERVED FOR CRIMINAL SANCTIONS AND AWARD PLAINTIFF WITH WINDFALL BEYOND FULL COMPENSATION: “Punitive damages not only impose on the defendant a penalty generally reserved for criminal sanctions, but also award the plaintiff with a windfall beyond full compensation.” Id. (citing Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178, 188, 829 P.2d 1061 (1992)).

[1-3] THE WA STATE LEGISLATURE HAS ASSURED THAT PLAINTIFFS MAY BECOME WHOLE THROUGH COMPENSATORY DAMAGES: “Particularly in the case of workplace discrimination, the Legislature has assured a plaintiff may ‘become whole’ through a full panoply of compensatory damages.” Id. (citing Barr v. Interbay Citizens Bank, 96 Wash.2d 692, 699-700, 635 P.2d 441, amended by 96 Wash.2d 692, 649 P.2d 827 (1982)).

[1-4] PUNITIVE DAMAGES REQUIRE EXPRESS LEGISLATIVE AUTHORIZATION: “Governing resolution of this case is the court’s long-standing rule prohibiting punitive damages without express legislative authorization.” Id. at 575 (internal citations omitted).

[1-5] FEDERAL CIVIL RIGHTS ACT:

Civil Rights Act of 1964 — Provided Private Remedies: “The Civil Rights Act of 1964 provided private remedies for employment discrimination in Title VII, historically authorizing only equitable relief.” Id.

Civil Rights Act of 1991 — Allowed Greater Trial Costs: “By the Civil Rights Act of 1991, Congress amended the 1964 Act to allow greater trial costs, including expert fees.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 575-76 (citing 42 U.S.C. § 2000e-5(k); see Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

“Revised Statutes” Amendments (42 U.S.C. § 1981a) — Allowed Compensatory and Punitive Damages for Intentional Employment Discrimination: “The 1991 Act also amended 42 U.S.C. § 1981a, known as the Revised Statutes, to permit compensatory and punitive damages in an action for intentional employment discrimination:

provided that the complaining party cannot recover under section 1981 of [the Revised Statutes (42 U.S.C. § 1981) ], the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 576 (citing 42 U.S.C. § 1981a(a)(1)) (alteration in original) (paragraph formatting and hyperlinks added).

[1-6] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD):

1973 — Private Equitable and Compensatory Relief Allowed Under the WLAD: “Since 1973, the Legislature has authorized private equitable and compensatory relief under the LAD:

to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney’s fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964….

Dailey, 129 Wn.2d at 575 (citing former RCW 49.60.030(2)).

1993 — Legislature Amended the WLAD to Acknowledge the Civil Rights Act of 1991: “In 1993, the Legislature acknowledged the Civil Rights Act of 1991 by amending RCW 49.60.030(2) to ‘any other remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended.'” Dailey, 129 Wn.2d at 575 (citing RCW 49.60.030(2)) (hyperlink and emphasis added).

[1-7] UNDER CIVIL RIGHTS ACT OF 1991 PUNITIVE DAMAGES OPERATE PROSPECTIVELY ONLY: “The United States Supreme Court has determined punitive damages under the Civil Rights Act of 1991 operate prospectively only.” Dailey, 129 Wn.2d at 578 (citing Landgraf v. USI Film Prods., 511 U.S. 244, —-, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (1994)).

[1-8] PROVISION OF PUNITIVE DAMAGES, A PENALTY AND A NEW RIGHT OF ACTION DO NOT QUALIFY AS REMEDIAL AMENDMENT TO PERMIT PRSUMPTION OF RETROACTIVITY: “[T]he provision of punitive damages, a penalty and a new right of action [do not] qualify as a remedial amendment to permit a presumption of retroactivity.” Id. at 578 (citing Agency Budget Corp. v. Washington Ins. Guar. Ass’n, 93 Wash.2d 416, 425-26, 610 P.2d 361 (1980); Johnston v. Beneficial Management Corp., 85 Wash.2d 637, 640-41, 538 P.2d 510 (1975); see Landgraf, 511 U.S. at —-, 114 S.Ct. at 1506-07).

[1-9] THE STATUTORY AUTHORITY IS TOO AMBIGUOUS AND ATTENUATED TO BE EXPRESS: In this case, “[t]he trial court determined the LAD, RCW 49.60.30(2), expressly authorized punitive damages by incorporating that federal remedy by reference to the United States Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1).” Dailey, 129 Wn.2d at 575 (citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 316, 898 P.2d 284 (1995) (Madsen, J., dissenting) (“noting RCW 49.60.030(2) does not authorize punitive damages under state law”)) (emphasis and hyperlinks added).

∴ Majority Court’s Analysis: “While we do not fault the trial court’s analytic framework, we find the statutory authority too ambiguous and attenuated to suffice as express.” Id.

[1-10] AMBIGUITIES PRECLUDE EXPRESS AUTHORIZATION FOR PUNITIVE DAMAGES: “Ambiguities cloud the relation between 42 U.S.C. § 1981a(a)(1) and RCW 49.60.030(2) to preclude characterization of their link as an express authorization for punitive damages.” Dailey, 129 Wn.2d at 576 (hyperlinks added).

∴ Majority Court’s Analysis — Amendment Limited to Costs:

“First, the structure of the language in RCW 49.60.030(2) arguably evinces an intent to incorporate only federal remedies qualifying as ‘costs.’ While the trial court read the provision as: ‘to recover the actual damages … together with … any other remedy …,’ we might reasonably read the term ‘including’ as restrictive: ‘the cost of suit including … any other remedy….’ Under the latter interpretation, punitive damages simply would fall outside the scope of the incorporation provision.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“We need not choose between these alternative meanings … to decide the resultant ambiguity cannot overcome Washington’s policy against punitive damages.” Id.

∴ Majority Court’s Analysis — Implied Incorporation Is Not Express Authorization:

“We find equally disturbing the relation between the provision of punitive damages in the Civil Rights Act of 1991 and the Civil Rights Act of 1964. RCW 49.60.030(2) explicitly incorporates only the 1964 Act as amended, but whether the 1991 Act actually constitutes an amendment to the 1964 Act is unclear.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“The Civil Rights Act of 1991 did not directly amend Title VII to permit punitive damages, but rather amended the Revised Statutes, 42 U.S.C. § 1981a. Indeed, the amendment explicitly describes compensatory and punitive damages ‘in addition to’ remedies available under the 1964 Act.” Dailey, 129 Wn.2d at 576-77 (citing 42 U.S.C. § 1981a(a)(1)) (hyperlinks added).

“An implied incorporation of the 1991 Act does not meet our standard for express authorization.” Id. at 577.

[1-11] THE COURT REAFFIRMS AND DISTINGUISHES XIENG: “The trial court found controlling this court’s prior analysis of the interplay between RCW 49.60.030(2) and the 1991 Act in Xieng, 120 Wash.2d 512, 844 P.2d 389.” Dailey, 129 Wn.2d at 577 (hyperlink added). “Analyzing the scope of the incorporation of federal remedies by reference, Xieng held express legislative authorization for expert witness fees under the LAD lies in the explicit expert witness fee provision of the Civil Rights Act of 1991…. The trial court concluded Xieng compelled incorporation of all federal relief provided in the 1991 Act.” Dailey, 129 Wn.2d at 577 (internal citations omitted).

∴ Majority Court’s Analysis: “We reaffirm and distinguish Xieng[ ][:]

Both the nature of the remedy and the relevant statutory authority in Xieng differ from the present case. Certainly expert witness fees have not received the extreme resistance and condemnation as punitive damages. See Spokane Truck, 2 Wash. at 50-56, 25 P. 1072.

Unlike the punitive damages provision, the expert witness fee provision contains an explicit amendment to the 1964 Civil Rights Act. 42 U.S.C. § 2000e-5(k).

Moreover, the presence of the explicit amendatory language in 42 U.S.C. § 2000e-5(k) reinforces our concern for the lack of an equally explicit amendment to the 1964 Act in 42 U.S.C. § 1981a(a)(1).

At the same time, the incorporation of expert witness fees in Xieng is consistent with an interpretation of RCW 49.60.030(2) as limiting the incorporation of federal remedies to costs of suit. See Xieng, 120 Wash.2d at 528, 844 P.2d 389.

Dailey, 129 Wn.2d at 577 (paragraph formatting added).

[1-12] IF LEGISLATURE INTENDED TO MAKE PUNITIVE DAMAGES AVAILABLE UNDER THE WLAD, IT WOULD HAVE UNAMIBUOUSLY SO PROVIDED: “Where the Legislature has intended the exceptional relief of punitive damages, the statute has contained an explicit authorization.” Id. at 577 (citing RCW 9.73.230(11); RCW 19.86.090). “The Legislature here, presumably aware of Congress’ decision to allow punitive damages in the 1991 Civil Rights Act, had the opportunity to follow suit in its 1993 amendments to the LAD.” Dailey, 129 Wn.2d at 577.

∴ Majority Court’s Analysis: “If the Legislature intended to make punitive damages available for employment discrimination under the LAD, it would have unambiguously so provided.” Id.

[1-13] PLAINTIFF’S CLAIM IS UNTIMELY — RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE: The Court “observe[d] that even if the LAD permitted punitive damages for employment discrimination generally, that relief would remain unavailable in the present case.” Id. at 578.

∴ Majority Court’s Analysis: “The Civil Rights Act, the only potential authorization for punitive damages under the LAD, did not permit that relief until 1991. Plaintiffs’ claim concerns conduct prior to 1991.” Id. “Retrospective punitive damages thus could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. (citing RCW 49.60.030(2); McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 807-08 (9th Cir.1994)).

Conclusion of the issue — **-CONCLUSION-**

[1-14] PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE WLAD, RCW 49.60; RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE FEDERAL CIVIL RIGHTS ACT: In this case, the Court held that “punitive damages are unavailable under the Law Against Discrimination (LAD), RCW 49.60.” Dailey, 129 Wn.2d at 574 (hyperlink added). Moreover, “[r]etrospective punitive damages … could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. at 578.

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

“Although I agree with the majority that the trial court erred in granting summary judgment for Ms. Dailey in this case, I disagree with the majority’s analysis on exemplary damages under RCW 49.60.030(2), and therefore write separately.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 578 (emphasis added). NOTE: The term “exemplary damages” is synonymous with punitive damages. See Black’s Law Dictionary 417 (8th ed. 2004).

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

[2-1] FEDERAL LAW

Before 1991 — Punitive Damages Unavailable to Federal Civil Rights Plaintiffs: “Prior to 1991, a successful federal civil rights plaintiff generally could not recover exemplary damages.” Dailey, 129 Wn.2d at 578-79 (citing 42 U.S.C. § 2000e-5).

After 1991 — Punitive Damages Available to Successful Litigants Under the Civil Rights Act of 1964: “In the 1991 Civil Rights Act, Congress included a new statutory section, 42 U.S.C. § 1981a, which provides:

In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. §§ 2000e-2, 2000e-3], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 579 (emphasis and hyperlinks added). Thus, “[u]nder the terms of the statute, a successful litigant under the Civil Rights Act of 1964 can recover exemplary damages.” Dailey, 129 Wn.2d at 579.

[2-2] WASHINGTON LAW

1993 Amendments: “In 1993, the Washington Legislature adopted amendments to RCW 49.60.030(2) relating to private actions under RCW 49.60, allowing a party to seek:

to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, …

Dailey, 129 Wn.2d at 580 (citing Laws of 1993, ch. 69, § 1; Laws of 1993, ch. 510, § 3(2)) (emphasis in original) (hyperlinks added). “The ‘as amended’ language was adopted in two separate legislative enactments by the 1993 Legislature, ch. 69, Laws of 1993, § 1 and ch. 510, Laws of 1993, § 3(2).” Dailey, 129 Wn.2d at 580.

1995 Reenactment: “The Legislature reenacted RCW 49.60.030(2) in its present form combining the disparate amendments to RCW 49.60.030 in Ch. 135, Laws of 1995, § 3.” Dailey, 129 Wn.2d at 580. “Thus, on three separate occasions in 1993 and 1995, the Legislature adopted legislative language incorporating into RCW 49.60 remedies authorized by the 1991 amendment to the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580 (hyperlinks added).

The Legislature Intended to Incorporate Federal Remedies in the WLAD: “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Rule of Statutory Construction (Presumed Awareness): “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. at 581 (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992)).

Rule of Statutory Construction (Presumption of Acquiescence): “Another principle of statutory construction [is that] “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Id. (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993)) (internal citations omitted).

[2-3] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “In Landgraf v. U.S.I. Film Prods., a former employee brought an action alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964[ ][:]

The United States Supreme Court held the provisions of the 1991 Civil Rights Act, including 42 U.S.C. § 1981a, do not apply to a case pending on appeal when the statute was enacted, and had prospective effect only. The Court declined to apply the 1991 amendments retroactively unless Congress made clear such an intent. The Court found no such clear Congressional intent for retroactive application of the 1991 amendments.

Dailey, 129 Wn.2d at 582 (citing Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994)) (hyperlinks added).

[2-4] FEDERAL LAW — SUCCESSFUL CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER THE 1964 CIVIL RIGHTS ACT AS AMENDED BY 1991 LEGISLATION:

“The majority determines the 1991 Civil Rights Act may not have amended the 1964 Civil Rights Act, majority op. at 5, based on an argument first raised by amicus Washington Defense Trial Lawyers Association that 42 U.S.C. § 1981a is a separate section and does not actually amend the text of the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 579 (hyperlink added).

∴ Concurring Court’s Analysis: “This hypertechnical argument ignores the plain language of 42 U.S.C. § 1981a(a)(1) allowing exemplary damages in ‘an action brought by a complaining party under § 706 or 717 of the Civil Rights Act of 1964 …'” Dailey, 129 Wn.2d at 579 (hyperlink added).

Example: McGinnis v. Kentucky Fired Chicken: “In McGinnis v. Kentucky Fried Chicken, 42 F.3d 1273 (9th Cir.), amended and superseded by 51 F.3d 805 (9th Cir.1994), the United States Court of Appeals for the Ninth Circuit specifically held punitive damages are allowed under the Civil Rights Act of 1964 as amended by the 1991 Civil Rights Act: ‘Punitive damages are authorized by that statute today.'” Dailey, 129 Wn.2d at 579-80 (internal citations omitted).

Example: Landgraf v. U.S.I. Film Prods.: “The United States Supreme Court in Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) similarly held exemplary punitive damages were available under the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580.

“As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.” Dailey, 129 Wn.2d at 580.

[2-5] WASHINGTON LAW — EXPRESS AUTHORIZATION DOES NOT REQUIRE THE SPECIFIC WORDS “PUNITIVE DAMAGES”

“Notwithstanding … the statutory language, the majority finds exemplary damages are unavailable to claimants under RCW 49.60.030 because of Washington’s strong public policy against punitive damages.” Dailey, 129 Wn.2d at 580 (internal citations omitted) (hyperlink added). “The majority asserts exemplary damages are unavailable under Washington law in the absence of express statutory authorization. By this, the majority seems to mean the Legislature must use the specific words “punitive damages.” Id. at 580-81.

∴ Concurring Court’s Analysis:

“This argument is too literal and ignores the clear direction of RCW 49.60.030 and the legislative history of the state and federal enactments.” Id. at 581 (hyperlink added).

The McGinnis Case. “By 1995, when the Legislature again amended RCW 49.60.030(2), the Legislature had the benefit of the decisions in Landgraf and McGinnis[ ][:]

In McGinnis, the Ninth Circuit held exemplary damages are available to successful claimants under RCW 49.60 because RCW 49.60.030(2) incorporated federal remedies and the Civil Rights Act of 1964, as amended in 1991, permitted successful claimants to recover exemplary damages.

Dailey, 129 Wn.2d at 581 (hyperlinks added).

Canons of Statutory Construction. “[T]he Legislature [was not] ignorant of the nature of its own actions. As we have stated: The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. “Another principle of statutory construction [is that] ‘Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.'” Id. “The Legislature had to know it was incorporating the federal remedy of punitive damages into RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Legislature’s Intent Rendered Meaningless. “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60. But the majority’s interpretation of RCW 49.60.030(2) renders virtually meaningless the Legislature’s intent[:]

RCW 49.60.030(2) specifically mentions injunctive relief, and recovery of actual damages, costs and a reasonable attorney fee. We have already allowed expert witness fees as a cost of litigation. Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

The reference to federal law remedies must be intended to expand upon the already mentioned remedies. However, beyond injunctive relief, compensatory damages, costs and attorney fees, nothing of substance is left but the punitive damages added to federal law in 1991.

Dailey, 129 Wn.2d at 581-82 (hyperlinks added). “The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” Dailey, 129 Wn.2d at 582 (hyperlink added).

[2-6] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “Counsel for Ms. Dailey argues the amendments to RCW 49.60.030(2) must be applied retroactively because they are remedial in nature.” Dailey, 129 Wn.2d at 582.

∴ Concurring Court’s Analysis: “I disagree. Because the Legislature adopted a federal remedy, we are obliged to construe the federal remedy in accordance with Congressional intent as understood by the federal courts.” Id. at 582 (citing Xieng, 120 Wash.2d at 528-29, 844 P.2d 389).

“The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.” Dailey, 129 Wn.2d at 582-83.

[2-7] FEDERAL CIVIL RIGHTS CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER CIVIL RIGHTS ACT OF 1964, AS AMENDED; WA LEGISLATURE CLEARLY UNDERSTOOD IT WAS ADOPTING PUNITIVE DAMAGES WHEN IT AMENDED RCW 49.60.030(2); AND PLAINTIFF CANNOT RETROACTIVELY APPLY PUNITIVE DAMAGES:

The concurring Court evaluated this case based on three categories and concluded as follows:

1. Regarding Federal Law:

As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.

Dailey, 129 Wn.2d at 580.

2. Regarding WA Law:

The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.

Dailey, 129 Wn.2d at 582

3. Regarding Retroactive Application of 1993 Amendments:

The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.

Dailey, 129 Wn.2d at 582-83.

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July 9, 2021May 26, 2022

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)

This is a case summary of Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012). Subjects include, but are not limited to the following:

» HOSTILE WORK ENVIRONMENT

» TERMS AND CONDITIONS OF EMPLOYMENT

» ADMISSIBLE EVIDENCE OUTSIDE STATUTE OF LIMITATIONS

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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**Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)**

case summarY – 7 PRIMARY Facts:

[1] In 2006, the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class.

[2] After the Amendment, [the Plaintiff] Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively ‘University’), for discrimination based on sexual orientation.

[3] [Loeffelholz] alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act.

[4] The final allegedly discriminatory act–and the only act to potentially occur postamendment–occurred during Lukehart’s last group meeting before deploying to Iraq. During this meeting, he told the group that he was ‘going to come back a very angry man’ from Iraq.

[5] [The Court held] that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred.

[6] The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment.

[7] [The Court] affirms the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012) (hyperlink added).

ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?

[1-1] STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271 (Wash. 2012) (internal citations and quotation marks omitted).

The Court may determine if “the legislature intends otherwise” by looking to legislative history. Id. (internal citations omitted). Moreover, “a statute is not remedial when it creates a new right of action.” Id. (internal citations omitted).

[1-2] PLAIN LANGUAGE: The Court found that the plain language of the WLAD amendment at issue did not explicitly state that it applied retroactively; it therefore concluded that the plain language supported prospective application. Id. at 72 (internal citations omitted).

[1-3] LEGISLATIVE HISTORY: The Court found that the final bill report to the WLAD amendment supported prospective application. It stated that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id.

[1-4] THE MORGAN TWO-PART INQUIRY INAPPLICABLE: The Court found the Morgan Two-Part Inquiry inapplicable to this case.

In Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004), the court approved the two-part inquiry (hereinafter “Inquiry”) introduced in Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)), for purposes of deciding if a hostile work environment claim is timely. Loeffelholz, 175 Wn.2d at 273 (internal citations omitted).

Under the Inquiry, the court is to determine (1) “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so,” (2) “whether any act falls within the statutory time period.” Id. (internal citations omitted).

However, here, the Court distinguished Antonius from the instant case, pointing out that “recovery for actions outside the statute of limitations does not raise the same due process concerns as does recovery for conduct that was not unlawful when committed.” Id.

[1-5] PREAMENDMENT CONDUCT AS BACKGROUND EVIDENCE: The Court found that “while preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted).

The court in Graves v. District of Columbia, 843 F.Supp.2d 106 (D.D.C.2012), “recognize[d] that conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Id. at 274 (internal citations omitted) (alteration in original.

As an example, the Court explained that “earlier conduct may be relevant to prove the intent behind post-effective-date conduct.” Id. (internal citations omitted).

[1-6] TOTALITY-OF-THE-CIRCUMSTANCES ANALYSIS: Here, the Court examined the “totality of the circumstances” and found that Ms. Loeffelholz could use “the preamendment conduct to explain why the ‘angry man’ comment constituted sexual orientation based harassment.” Id.

[1-7] LEGISLATURE’S MANDATE THAT WLAD PROVISIONS BE CONSTRUED LIBERALLY: The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be construed liberally … to prevent discrimination that threatens not only the rights and proper privileges of the State’s inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (internal citations omitted).

[1-8] WLAD AMENDMENT APPLIES PROSPECTIVELY ONLY BUT HOSTILE WORK ENVIRONMENT CLAIM MAKES PREAMENDMENT CONDUCT ADMISSIBLE: The Court held that based on the plain language and legislative history, the Washington Law Against Discrimination amendment applies prospectively only; it is not retroactive.

However, “because of the unique nature of a hostile work environment claim, the unrecoverable preamendment conduct is admissible as background evidence to give context to any postamendment discriminatory conduct.” Id. at 278.

ISSUE #2: Is a single comment made postamendment a discriminatory act?

[2-1] 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 [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 275 (internal citations and quotation marks omitted) (alteration in original).

[2-2] TERMS & CONDITIONS OF EMPLOYMENT: The third element is met “if the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, to be determined with regard to the totality of the circumstances.” Id. (internal citations and quotation marks omitted) (emphasis added).

[2-3] TOTALITY OF THE CIRCUMSTANCES: The Court considered the totality of the circumstances, including the preamendment conduct, and concluded that “the ‘angry man’ comment establishes a prima facie hostile work environment claim.” Id. at 275-76.

“The standard for linking discriminatory acts together in the hostile work environment context is not high.” Id. “The acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. (internal citations omitted).

In this case, Mr. Lukehart made the “angry man” comment to a group, but “he conceivably intended it to have special meaning for Ms. Loeffelholz.” Id. at 276. Ms. Loeffelholz “knew that Lukehart disliked lesbians and that he had anger management problems as illustrated by his previous comments that he had a volatile temper and kept a gun.” Id.

The Court concluded that “taken in the context of such comments, a reasonable juror could infer from these events that the “angry man” comment was a natural extension of the conduct that made up the preamendment oppressive work environment.” Id. at 276-77.

[2-4] A SINGLE COMMENT MAY BE ENOUGH: The Court found that “the preamendment conduct establishes that the ‘angry man’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 277.

[2-5] A SINGLE COMMENT MADE POSTAMENDMENT CAN ESTABLISH A HOSTILE WORK ENVIRONMENT: The Court found that preamendment conduct establishes that one comment–the “angry man” comment in this case–“could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 278.

Thus, assuming the “‘angry man’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment.” Id. Accordingly, the Court affirmed “only the Court of Appeals reversal of summary judgment, and reversed its reasoning, which allowed recovery for preamendment conduct.” Id.

NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

(1) “The standard for linking discriminatory acts together in the hostile work environment context is not high[ ]; [t]he acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. at 276 (internal citations omitted).

(2) While preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted).

Thus, it appears that comments occurring outside of the statute of limitations in other hostile work environment cases might be analogized to preamendment conduct in this case.

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July 9, 2021May 26, 2022

Nearing v. Golden State Foods Corporation, 114 Wn.2d 817 (Wash. 1990)

This is a case summary of Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990). Primary subjects include, but are not limited to the following:

» WA STATE STATUTORY REQUIREMENTS FOR TOLLING OF THE PERIOD OF LIMITATIONS

» WA STATE COURT RULES FOR COMMENCEMENT OF ACTIONS

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**Nearing v. Golden State Foods Corporation, 114 Wn.2d 817 (Wash. 1990)**

CASE SUMMARY – 11 Facts:

[1] [On] October 23, 1982, [defendant Golden State Foods Corporation (Golden State)] . . . terminated [plaintiff Nearing.]

[2] [O]n October 18, 1985, . . . Nearing commenced an action against Golden State Foods Corporation.

[3] [On that date], Nearing served a summons, but not a complaint, on Golden State . . . shortly before the statute of limitations would have run on his cause of action.

[4] [The] summons . . . stated that the cause of action was based on a breach of contract.

[5] Thereafter Nearing changed counsel.

[6] [O]n January 16, 1986, within 90 days of the service of the summons, Nearing filed a new summons together with a complaint.

[7] [On January 31, 1986, Nearing] served [a] . . . new summons and complaint . . . on Golden State.

[8] Golden State moved to dismiss the action on the grounds that it was time barred by the 3-year statute of limitations because Nearing initially failed to serve a complaint with the summons.

[9] The trial court held that Nearing’s October 18, 1985 service of the summons alone was ineffective under Civil Rules 3 and 4 to toll the statute of limitations. The trial court, therefore, granted Golden State’s motion to dismiss.

[10] The Court of Appeals reversed, holding that CR 3 and 4 did not supersede RCW 4.16.170 and that RCW 4.16.170 controlled.

[11] The Court did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only whether he complied with the statutory requirements for tolling the statute of limitations.

Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 792 P.2d 500 (Wash. 1990) (internal citations omitted) (hyperlinks added).

ISSUE #1: “The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint.” Id. at 819.

[1-1] TOLLING THE STATUTE OF LIMITATIONS (RCW 4.16.170): “For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first.” Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 820, 792 P.2d 500 (Wash. 1990) (Wash. 1990).

Accordingly:

[1] If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint.

[2] If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service.

[3] If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

Id.

“Thus, an action is tentatively commenced by service of a summons or the filing of a complaint and the statute of limitations is tolled pending filing of the summons and complaint within 90 days from the date of service.” Id. (emphasis added).

“Either of these acts will toll the statute of limitations as long as the summons and complaint are filed within 90 days.” Id. (citing RCW 4.16.170; Sterling v. County of Spokane, 31 Wash.App. 467, 471, 642 P.2d 1255 (1982)).

“The statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).

[1-2] THE STATUTE GOVERNING TOLLING OF THE STATUTE OF LIMITATIONS (RCW 4.16.170): “The statute, RCW 4.16.170, deals exclusively with tolling of the statute of limitations and requires a plaintiff to either file a complaint or serve the summons upon the defendant.” Nearing, 114 Wn.2d at 820 (emphasis and hyperlink added).

[1-3] THE COURT RULE GOVERNING COMMENCEMENT OF ACTIONS (CR 3): “The court rule, CR 3 requires service of the summons and complaint or filing a complaint in order to commence a civil action.” Nearing, 114 Wn.2d at 820-21 (emphasis and hyperlink added).

[1-4] COMPLIANCE WITH 90-DAY RULE UNDER RCW 4.16.170 AUTOMATICALLY RESULTS IN COMMENCEMENT OF AN ACTION UNDER CR 3(a): “Pursuant to CR 3(a), an action is commenced either by service of a copy of a summons together with a copy of a complaint … or by filing a complaint.” Nearing, 114 Wn.2d at 822 (internal quotation marks omitted) (hyperlink added).

“Thus, compliance with the 90 day rule, contained in RCW 4.16.170, automatically results in the commencement of an action under CR 3(a)[;] . . . [t]he statute is consistent with the court rule.” Nearing, 114 Wn.2d at 822 (hyperlinks added).

[1-5] ACTION ON JANUARY 30, 1986 IRRELEVANT TO VALIDITY OF COMPLIANCE WITH RCW 4.16.170: In this case, the Court determined that “plaintiff caused a summons to be served on Golden State October 18, 1985.” Id. at 822. And “[o]n January 16, 1986, within the 90 days mandated by RCW 4.16.170, the plaintiff filed both a summons and complaint.” Nearing, 114 Wn.2d at 822 (emphasis and hyperlink added).

“On January 30, 1986, Nearing served a second summons and complaint on Golden State. The action on January 30, 1986 is irrelevant to the validity of the compliance with RCW 4.16.170.” Nearing, 114 Wn.2d at 822 (hyperlink added).

[1-6] CAUSE OF ACTION VALIDLY COMMENCED TOLLING STATUTE OF LIMITATIONS (AFFIRMED / ORDER OF DISMISSAL VACATED / REMANDED): The Court found that “[t]he January 16 actions of Nearing [(i.e., filing both summons and complaint)] validly ‘commenced’ the plaintiff’s cause of action for the purpose of tolling the statute of limitations.” Id. at 823 (emphasis added). Accordingly, the Court held that “[t]he Court of Appeals is affirmed[,] . . . [t]he order of dismissal is vacated[,] and the cause is remanded for further proceedings.” Id.

[1-7] NOTE REGARDING TOLLING VERSUS COMMENCEMENT OF ACTIONS: “The [C]ourt [of Appeals] did not decide whether Nearing complied with the court rules concerning the commencement of actions, but only [whether he complied with the statutory requirements for tolling the statute of limitations.” Id. at 819 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 764 P.2d 242 (1988)) (emphasis added).

NOTABLES & IMPLICATIONS:

THE DISSENT (JUSTICE DORE)

(1) (DISSENT) NEARING DID NOT TOLL THE STATUTE OF LIMITATIONS: In this case, the dissent (Justice Dore) asserted that “[t]he trial court should be affirmed” based on the following:

Nearing did not toll the statute of limitations for the subject case. He totally failed to file the summons that was served on Golden on October 18, 1985.

Further, the record does not support the majority’s contention that any summons was filed within 90 days of service as required by RCW 4.16.170.

Since no summons was filed within 90 days of service, the statute was not tolled on October 18, 1985. The action was not commenced until January 16, 1986, when the complaint was filed. Nearing knew he was discharged by December of 1982, as he drew unemployment benefits during that month.

Therefore, he missed the 3-year statute of limitations by at least 10 days or by as much as 3 months if he was terminated in October 1982.

Id. at 827 (hyperlink and paragraphs added).

(2) (DISSENT) SUMMONS FILED NOT SUBSTANTIALLY THE SAME AS SUMMONS SERVED: The dissent argued, inter alia, “[t]he majority ignores the fact that RCW 4.16.170 with its reference to ‘the’ summons and not ‘a’ summons requires that the summons filed be the same as the summons served.” Id. at 826 (see Dowell Company v. Gagnon, 36 Wash.App. 775, 776, 677 P.2d 783 (1984) (” ‘[T]he complaint’ is the one filed in the action … not a complaint independently filed.”)) (emphasis and hyperlink added).

Moreover, “[t]he Court of Appeals . . . suggests that there is compliance with the statute if the two summonses are substantially identical.” Id. at 826 (citing Nearing v. Golden State Foods Corp., 52 Wash.App. 748, 752, 764 P.2d 242 (1988), review granted, 112 Wash.2d 1009 (1989)).

In this case, dissent argues the initial summons served was not substantially the same as the summons filed; “[t]he two summonses are clearly different in this case.” Id. at 826.

“Each summons was signed by a different attorney, and each directed that the defense be served on a different attorney.” Id. at 826-27. “The ‘new summons’ referred to ‘Breach of Contract’.” Id. at 827. “It is not clear what the first summons referred to, since the first summons is not in the record.” Id. at 827.

Thus, “[e]ven if the ‘new summons’ was filed on January 16, 1986, with the complaint, the statute was not tolled as of October 18, 1985.” Id. at 826.

CONFLICT OF LAWS

(3) COURT RULE IS SUPREME: “Whenever there is a conflict between a procedural statute and a court rule, the court’s rule making power is supreme. ” Id. at 821 (citing Petrarca v. Halligan, 83 Wash.2d 773, 776, 522 P.2d 827 (1974)).

(4) HARMONIZING: “Apparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Id. at 821 (citing Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981)).

(5) CR 81(b) (DISSENT FOOTNOTE): “CR 81(b) states: ‘Subject to provisions of section (a) of this rule, these rules supersede all procedural statutes and other rules that may be in conflict.'” Id. at 827, fn. 1 (hyperlink added) (emphasis added).

NOTE: However, as explained above, the majority found that “[t]he statutory provision which governs the tolling of the statute of limitations and the court rule governing the commencement of actions are reconcilable.” Id. at 820 (emphasis added).

LEGISLATIVE HISTORY

(6) “Our conclusion that RCW 4.16.170 stands alone as the rule for tolling the statute of limitations is bolstered by the Twenty-Sixth Annual Report of the Judicial Council.” Id. at 822. “The Council commented on amendments to CR 3 by stating ‘[b]oth the existing rule and the proposed amended rule defer to statutory law governing the tolling of the statute of limitations.’ ” Id. at 822 (citing Washington State Judicial Council, Twenty-Sixth Annual Report 28 (1977)) (alteration in original) (hyperlink added).

STATE STATUTE VS. COURT RULE (TOLLING VS. COMMENCEMENT, RESPECTIVELY)

(7) “[T]he statute controls the tolling of the period of limitations while the rule governs the commencement of actions.” Id. at 821. “Thus it is possible to turn to the statute standing alone to ascertain that the period of limitations has not run and to the rule to ascertain whether the action has been commenced.” Id.

STATUTORY CONSTRUCTION

(8) “When the statutory language is plain and unambiguous, its meaning must be derived from the wording of the statute itself.” Id. at 822 (citing State v. Johnson, 104 Wash.2d 179, 181, 703 P.2d 1052 (1985)).

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July 8, 2021May 26, 2022

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

This is a case summary of Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979). Primary subjects include, but are not limited to the following:

» PROTECTED CLASSES (PERCEIVED DISABILITY)

» TERMINATION BASED UPON PERCEIVED (NONEXISTENT) DISABILITY

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**Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)**

CASE SUMMARY – 11 Facts:

[1] Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

[2] He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

[3] Barnes contends that he does not now, nor did he ever have, epilepsy.

[4] He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

[5] After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

[6] The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

[7] After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

[8] The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

[9] The Court refused the invitation.

[10] The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

[11] The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979) (internal citations omitted) (hyperlink added).

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Barnes v. Washington Natural Gas Co., 22 Wn.App. 576, 578 (Div. I 1979).

[1-2] WASHINGTON ADMINISTRATIVE CODE: “The Washington State Human Rights Commission (The Commission) … has adopted regulation WAC 162-22-040 [(currently WAC 162-22-020)] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.”

Id. at 579 (hyperlinks added).

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

[1-3] JUDICIAL REVIEW OF REGULATIONS: “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)).

The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314).

[1-4] LEGISLATIVE INTENT: The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582.

But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

[1-5] ESSENCE OF EMPLOYMENT DISCRIMINATION: The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id.

It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id.

The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

[1-6] LEGISLATIVE PURPOSE: The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id

The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id.

The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.”

The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

[1-7] PROTECTED CLASS: Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

[1-8] APPLICATION OF POLICY: The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

[1-9] EMPLOYER’S INTERESTS: Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

[1-10] BARNES HAS STANDING BASED ON PERCEIVED DISABILITY (REVERSED & REMANDED): The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

[2-1] PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted).

The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

[2-2] SEE ANALYSIS UNDER ISSUE #1, ABOVE.

[2-3] REGULATION IS WITHIN SCOPE OF WLAD (REVERSED & REMANDED): The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

NOTABLES & IMPLICATIONS:

PUBLIC POLICY

(1) “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

(2) “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010.” Id. at 583, n. 2 (hyperlinks added).

“The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120: ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. (hyperlink added).

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June 29, 2021February 15, 2023

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

This is a case summary of Fraternal Order of Eagles v. Grand Aerie of Fraternal Order, 148 Wn.2d 224 (Wash. 2002), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003).

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case summarY – 4 Facts:

[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), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003) (internal citations omitted).

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?

[1-1] 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), cert denied, 538 U.S. 1057, 123 S.Ct. 2221, 155 L.Ed.2d 1107 (2003) (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).

[1-2] 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).

[1-3] 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) legislative history, (b) statutory construction, and (c) relevant case law. Fraternal Order of Eagles, 148 Wn.2d at 243.

[1-4] 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.

[1-5] 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.

[1-6] 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.

[1-7] 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, 148 Wn.2d at 256.

[1-8] 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))?

[2-1] 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.

[2-2] 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.” Id. at 251.

[2-3] THE COURT CONSIDERED THE “ROBERTS FACTORS”: 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.

[2-4] TRIAL COURT PROPERLY ANALYZED “ROBERTS FACTORS”: 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.

[2-5] TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT: 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)).

case summary – 7 Facts:

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

ISSUE #1 (Majority Opinion): Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

ISSUE #2 (Concurring Opinion): Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

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case summarY – 7 PRIMARY Facts:

ISSUE #1: Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?

ISSUE #2: Is a single comment made postamendment a discriminatory act?

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 11 Facts:

ISSUE #1: “The issue is whether the statute of limitations is tolled by service of a summons upon the defendant when the summons is not served with an accompanying complaint.” Id. at 819.

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 11 Facts:

ISSUE #1: Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

ISSUE #2: Is WAC 162-22-040(1)(b)(iii) valid?

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case summarY – 4 Facts:

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?

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))?

NOTABLES & IMPLICATIONS:

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**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?