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

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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 12, 2021May 26, 2022

Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)

This is a case summary of Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017). Subjects include, but are not limited to the following:

» UNLWAFUL RETALIATION

» JOB APPLICANTS

» PROSPECTIVE EMPLOYERS

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**Cert. From U.S. District Court in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017)**

case summarY – 21 Facts:

[1] Zhu is a United States citizen who emigrated from China in 2004.

[2] Waterville School Disrict no. 209 hired Zhu as a math teacher in 2006.

[3] In 2010, Waterville issued a notice of probable cause for Zhu’s discharge, which he appealed.

[4] The hearing officer determined that there was not probable cause for discharge and restored Zhu to his position.

[5] Zhu then sued Waterville in federal district court, alleging that Waterville had subjected him to racially motivated disparate treatment, a hostile work environment, and retaliation in violation of 42 U.S.C. § § 1983, 2000e-2 and 2000e-3.

[6] His complaint alleged that he filed multiple grievances with Waterville regarding hostile and abusive actions by his students.

[7] Zhu described being called a chink, a communist, and gay by his students; in 2008 Zhu was the subject of a cartoon that depicted a border patrol shooting someone described as a communist chink; and in May, 2009 a student scrawled a hateful racial attack against Zhu on a bathroom wall, saying he hoped Zhu’s new house would burn down.

[8] Zhu alleged that instead of attempting to remedy the situation, Waterville took retaliatory actions against him for filing the grievances, including attempting to discharge him without probable cause.

[9] After the district court denied Waterville’s motion for summary judgment dismissal, the parties settled and Zhu resigned from Waterville in March 2012.

[10] Three months after resigning from Waterville, Zhu applied for a position as a “Math-Science Specialist” with ESD 171.

[11] ESD 171 is an educational service district that provides cooperative and informational services to local school districts, including Waterville . . . and it is undisputed that members of ESD 171’s hiring committee were aware of Zhu’s lawsuit against Waterville.

[12] Zhu was one of three candidates interviewed, but ESD 171 ultimately hired a different candidate, whom Zhu claims was far less qualified for the position.

[13] Zhu sued ESD 171 in federal district court, alleging that it refused to hire him in retaliation for his prior lawsuit against Waterville, thereby violating WLAD’s antiretaliation statute, RCW 49.60.210(1), as well as other state and federal laws.

[14] ESD 171 moved for summary judgment dismissal asserting that Zhu’s WLAD antiretaliation claim should fail for the same reasons that his federal antiretaliation claim should fail.

[15] However, the district court correctly noted that WLAD is not identical to federal law, analyzed the WLAD antiretaliation claim on its merits, and denied summary judgment.

[16] ESD 171 moved to reconsider, arguing that Zhu’s WLAD antiretaliation claim must fail because RCW 49.60.210(1) does not prohibit retaliatory discrimination against job applicants by prospective employers.

[17] The court denied reconsideration.

[18] Following a jury trial, Zhu prevailed on his WLAD antiretaliation claim and was awarded damages.

[19] ESD 171 then filed a motion for judgment as a matter of law or for a new trial, challenging the sufficiency of the evidence and the jury instructions, and asking in the alternative that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.

[20] [T]he district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme [C]ourt]: “Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?”

[21] The court otherwise denied the motion . . . .

Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504 (Wash. 2017) (internal citations & quotation marks omitted) (hyperlinks added).

ISSUE #1: Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?

[1-1] GENERALLY

WLAD’S ANTIRETALIATION POLICY: The primary purpose of WLAD’s antiretaliation statute, RCW 49.60.210(1), is “[m]aintaining unfettered access to statutory remedial mechanisms.” Certification From the United States District Court for the Eastern District of Washington in Zhu v. North Central ESD 171, 404 P.3d 504, 508 (Wash. 2017) (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)) (alteration in original). If the court “does not provide . . . [people] some measure of protection against retaliation[,]” then “[people will be less likely to oppose discrimination by bringing claims or testifying. Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)).

WLAD’S ANTIRETALIATION PROVISION: “[I]n order to encourage people to oppose discrimination, RCW 49.60.210(1) provides in full:

It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

Zhu, 404 P.3d at 508 (citing RCW 49.60.210(1)).

STATUTORY INTERPRETATION IS MATTER OF LAW: The issue of whether RCW 49.60.210(1) creates a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer is a question of statutory interpretation and therefore a matter of law. See Zhu, 404 P.3d at 508.

WLAD PROVISIONS (LIBERAL CONSTRUCTION): “When interpreting WLAD, we are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. at 508 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)). “To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given liberal construction.” Id. (internal citations and quotation marks omitted).

FUNCTIONALLY SIMILAR TEST: “Washington courts employ the ‘functionally similar’ test to determine whether the defendant had sufficient control over the plaintiff’s employment to be held personally liable for discriminatory actions.” Id. at 510 (citing Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930, 965 P.2d 1124 (1998) (“coworker without supervisory authority is not personally liable for retaliation”)).

[1-2] DEFINITIONS

WLAD DEFINITION OF EMPLOYER: “For purposes of WLAD, an ’employer’ is broadly defined as ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.'” Id. at 508 (citing RCW 49.60.040(11)).

DEFINITION INCLUDES PROSPECTIVE EMPLOYERS: “This definition clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.” Id. at 509 (referencing Champion v. Shoreline Sch. dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972) (we assume that when the legislature uses the same word in different parts of a single statutory scheme, that word has the same meaning throughout)).”

Washington courts have “always treated WLAD references to employers to include prospective employers where appropriate.” Id. at 509-10 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 334 P.3d 541 (2014)).

WLAD DEFINITION OF PERSON: “WLAD defines a ‘person’ in extremely broad terms to include one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.” Id. at 508 (citing RCW 49.60.040(19)).

WLAD DEFINITION OF DISCRIMINATION: “[W]hile WLAD does not define ‘discrimination,’ it would defy the ordinary meaning of that word to hold that it excludes an employer’s differentiation between people in the hiring process based on an observable characteristic, such as whether or not they have previously filed antidiscrimination lawsuits.” Id. at 508-09.

OPPOSING PRACTICES FORBIDDEN BY WLAD: “D]iscriminating against a person in ‘terms or conditions of employment’ because of race is clearly a practice forbidden by WLAD, and filing a lawsuit for damages based on such discrimination is clearly opposing that practice.” Id. at 509 (citing RCW 49.60.180(3)).

[1-3] STRUCTURE

UNFAIR PRACTICES OF EMPLOYERS (RCW 49.60.180): “RCW 49.60.180 defines practices by employers that are unfair when based on a person’s protected characteristics, including refusing to hire the person, discharging the person, discriminating against the person in the terms and conditions of employment, and inquiring into the person’s protected characteristics in the hiring process.” Zhu, 404 P.3d at 511 (hyperlink added).

UNFAIR PRACTICES OF LABOR UNIONS (RCW 49.60.190): “RCW 49.60.190 defines practices by labor unions that are unfair when based on a person’s protected characteristics, including denying the person membership to the union, expelling the person from the union, and discriminating against the person in the union’s duty of representation.” Zhu, 404 P.3d at 511 (hyperlink added).

UNFAIR PRACTICES OF EMPLOYMENT AGENCIES (RCW 49.60.200): “RCW 49.60.200 defines practices by employment agencies that are unfair when based on a person’s protected characteristics, including refusal to refer the person for employment and inquiring into the person’s protected characteristics in connection with prospective employment.” Zhu, 404 P.3d at 511 (hyperlink added).

WLAD ANTIRETALIATION (RCW 49.60.210): “RCW 49.60.210 provides that it is an unfair practice for any employer, labor union, or employment agency to discriminate against any person for opposing practices forbidden by WLAD.” Zhu, 404 P.3d at 511; WLAD’s Antiretaliation Provision, supra (emphasis added).

[1-4] PURPOSE

GENERALLY: “WLAD’s purpose is plain: the ‘elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property transactions.” Id. at 512 (citing RCW 49.60.010).

RIGHT TO OBTAIN & HOLD EMPLOYMENT: Regarding the instant case, “the right to be free from invidious discrimination includes ‘the right to obtain and hold employment without discrimination.'” Id. (citing RCW 49.60.030(1)(a)).

DISCRIMINATION IN HIRING & EMPLOYMENT: “Such discrimination in hiring and employment based on protected characteristics ‘threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.'” Id. (citing RCW 49.60.010).

LIBERAL CONSTRUCTION: “The overarching importance of eradicating such discrimination requires that WLAD’s provisions ‘be construed liberally for the accomplishment of the purposes thereof.'” Id. (citing RCW 49.60.020).

ENFORCEMENT BY PRIVATE INDIVIDUALS: “[W]LAD, like other laws prohibiting discrimination based on protected characteristics, relies heavily on private individuals for its enforcement.” Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 86, 821 P.2d 34 (1991)).

[1-5] GIVING EFFECT TO THE LEGISLATURE’S INTENT

Prior to the instant case, “[v]ery few opinions by this court have discussed . . . [RCW 49.60.210(1)], and no Washington court has considered whether . . . [that statute] prohibits retaliatory discrimination against job applicants by prospective employers.” Id. at 508 (hyperlink added). The certified question of statutory interpretation is a matter of law. Zhu, 404 P.3d at 508 (citing Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487 (2017)).

Accordingly, the Court determined both of the following:

(1) “When interpreting WLAD, [WA courts] . . . are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)).

(2) “To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given ‘liberal construction.'” Id. (citing Marquis, 130 Wn.2d at 108) (internal citation omitted).

[1-6] “THE ORDINARY MEANING OF THE PLAIN LANGUAGE OF RCW 49.60.210(1) SHOWS THAT THE ANSWER [TO THE CERTIFIED QUESTION] IS YES”

The Court initially examined the relevant statue finding that “[t]he plain language of RCW 49.60.210(1), in and of itself, strongly indicates that the answer to the certified question is yes.” Zhu, 404 P.3d at 508 (hyperlink added). That statute declares that “it is an unfair practice for ‘any employer … [to] discriminate against any person discriminate against any person because he or she has opposed any practices forbidden by this chapter.” Id. (alteration in original).

Thus, “if (1) ESD 171 is an employer, (2) Zhu is a person, (3) refusal to hire is discrimination, and (4) suing for racial discrimination is opposition to practices forbidden by WLAD, then RCW 49.60.210(1) clearly applies to Zhu’s claim.” Zhu, 404 P.3d at 508 (hyperlink added).

In this case, the Court determined that:

(1) “ESD 171 is clearly ‘any employer’ in accordance with [the WLAD definition] … as there is no dispute that it employs eight or more people and is not a religious or sectarian organization[ ]”;

(2) “Zhu is obviously a person[ ]”;

(3) “[W]hen ESD 171 refused to hire Zhu because he had previously sued Waterville for racial discrimination, ESD 171 discriminated against Zhu[ ]”; and

(4) “Therefore, Zhu’s prior lawsuit against Waterville for racial discrimination in the terms and conditions of his employment constituted opposition to a practice forbidden by WLAD.”

Id. at 508-9.

[1-7] “UNDER WLAD, AN ‘EMPLOYER’ IS NOT LIMITED TO PLAINTIFF’S CURRENT EMPLOYER FOR PURPOSES OF RCW 49.60.210(1)”

“ESD 171 argue[d] that RCW 49.60.210(1)’s reference to ‘any employer’ should be read as ‘the plaintiff’s current employer.'” Zhu, 404 P.3d at 509 (hyperlink added). However, the Court rationalized that:

A prospective employer, including ESD 171, easily fits within WLAD’s definition of an ’employer,’ and RCW 49.60.210(1) explicitly applies to ‘any employer.’ There is nothing in the statutory language or context to indicate that RCW 49.60.210(1) does not mean exactly what it says.

Zhu, 404 P.3d at 510 (hyperlinks added).

The Court also reasoned that “as the entity making the hiring decision, ESD 171 had complete control over Zhu’s possible employment, and the ‘functionally similar’ test has no relevance” in this case. Id.

[1-8] “RCW 49.60.210(1) PROHIIBITS ALL FORMS OF DISCRIMINATION BY EMPLOYERS IN THEIR CAPACITY AS EMPLOYERS”

ESDs ARGUMENT: “ESD 171 . . . takes the position that RCW 49.60.210(1) prohibits retaliatory discrimination only in the context of an established employment relationship because the only forms of prohibited retaliation that the statue explicitly mentions are ‘discharg[ing]’ and ‘expel[ling],’ both of which contemplate a preexisting relationship.” Zhu, 404 P.3d at 510 (alteration in original) (hyperlink added).

ESD 171s PROPOSED INTERPRETATION OF RCW 49.60.210(1) IS UNREASONABLE: The Court found that “ESD 171’s proposed interpretation of RCW 49.60.210(1) is an unreasonable application of that general rule.” Zhu, 404 P.3d at 510 (hyperlink added). The Court determined that “[s]ince the time that WLAD was first enacted, it has included the provisions, now codified at RCW 49.60.180 [(Unfair Practices of Employers), RCW 49.60.190 (Unfair Practices of Labor Unions), RCW 49.60.200 (Unfair Practices of Employment Agencies), and RCW 49.60.210 (Antiretaliation Provision)].” Zhu, 404 P.3d at 511 (hyperlinks added).

WLAD PROVISIONS INDICATE DISCRIMINATION UNDER RCW 49.60.210(1) INCLUDES AN EMPLOYER’S REFUSAL TO HIRE: These provisions “have always maintained the same basic form, and they have always been set forth in the same order.” Id. (Comparing RCW 49.60.180-210, with Laws of 1949, ch. 183 § 7(1)-(4)). Accordingly, “[t]his structure strongly suggests that ‘otherwise discriminat[ing]’ for the purposes of RCW 49.60.210(1) must, at a minimum, include the preceding explicitly specified unfair practices, one of which is an employer’s refusal to hire.” Zhu, 404 P.3d at 511 (citing RCW 49.60.180(1), supra) (emphasis added) (hyperlink added).

NO PUBLISHED WA CASE HAS CONSIDERED WHETHER RCW 49.60.210(1) PROHIBITS RETALIATORY DISCRIMINATION IN HIRING: ESD 171 further contended and offered caselaw to support its proposition that “RCW 49.60.210(1) prohibits only an ‘adverse employment’ action or decision that affects the terms or conditions of an established employment relationship.” Zhu, 404 P.3d at 511 (emphasis & hyperlink added). But the Court found that “[n]o published Washington case has ever considered, much less rejected, the question of whether RCW 49.60.210(1) prohibits retaliatory discrimination in hiring.” Zhu, 404 P.3d at 511 (hyperlink added).

As a result, the Court decided that it must therefore “apply the language of the statute, rather than the language of distinguishable cases.” Id. It further refused to extend the holding of Warnek v. ABB Combustion Engineering Services, Inc., 137 Wn.2d 450, 972 P.2d 453 (1999), to the instant case, because Warnek “interpreted materially different statutes and its conclusions were based on ‘the limited facts’ presented.” Zhu, 404 P.3d at 511-12.

“[B]ased on its language, context, and structure, the nonexclusive list of prohibited unfair retaliatory practices in RCW 49.60.210(1) does not indicate a legislative intent to allow retaliatory discrimination in hiring by a prospective employer against a job applicant.” Zhu, 404 P.3d at 512 (hyperlink added).

[1-9] “THE PURPOSES OF WLAD WOULD BE SEVERELY UNDERMINED BY ESD 171’S INTERPRETATION”

The Court found that “[t]he purposes of WLAD would be severely undermined by ESD 171’s interpretation.” Id. It considered plain language interpretation of a WLAD provision within the scope of the “legislature’s express statement of purpose and mandate for liberal construction.” Id. Accordingly, it concluded:

(1) “It is well recognized that WLAD, like other laws prohibiting discrimination based on protected characteristics, relies heavily on private individuals for its enforcement . . . Allison v. Hous. Auth., 118 Wn.2d [79], . . . 86 [(1991); and] . . . [t]his reliance would be unrealistic, to say the least, if this court does not provide them some measure of protection against retaliation[ ]”; and

(2) “[I]t would make little sense to hold that the legislature intentionally undercut its own purposes in enacting WLAD by adopting an antiretaliation provision that allows employers to compile an unofficial ‘do not hire’ list of individuals who have previously opposed discrimination against themselves and others.”

Zhu, 404 P.3d at 512 (internal quotation marks omitted) (hyperlink added).

The Court ultimately found that “RCW 49.60.210(1)’s plain language, read in context, does make retaliatory refusal to hire an unfair practice, and RCW 49.60.030(2) plainly provides that any person who has been subjected to an unfair practice has the right to bring a civil cause of action.” Zhu, 404 P.3d at 513 (emphasis and hyperlinks added).

Accordingly, “Zhu’s claim that ESD 171 refused to hire him in retaliation for his prior opposition to Waterville’s discriminatory practices stated a viable cause of action in accordance with the plain language of WLAD.” Id.

[1-10] RCW 49.60.210(1) PROHIBITS PROSPECTIVE EMPLOYERS FROM ENGAGING IN RETALIATORY DISCRIMINATION AGAINST JOB APPLICANTS: The Court declared that “[i]n accordance with the language, context, and purpose of WLAD, we hold that RCW 49.60.210(1) prohibits prospective employers from engaging in retaliatory discrimination against job applicants.” Zhu, 404 P.3d at 513 (emphasis and hyperlink added).

ISSUE #2: Is Zhu entitled to attorneys fees on review?

[2-1] RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court.” See id. at 513 (citing RAP 18.1(a)).

[2-2] RCW 49.60.030(2): “Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” See Zhu, 404 P.3d at 513 (citing RCW 49.60.030(2)); RCW 49.60.030(2).

[2-3] ZHU IS THE PREVAILING PARTY: In this case, the Court explicitly determined that Zhu was the prevailing party; and the Court implicitly determined both that RCW 49.60.030(2) was the applicable law granting Zhu the right to recover reasonable attorney fees/expenses and that Zhu properly requested fess/expenses as provided in RAP 18.1 before the WA Supreme Court. See Zhu, 404 P.3d at 513.

[2-4] ZHU IS ENTITLED TO ATTORNEY FEES: “Because Zhu [was] the prevailing party,” the Court granted “his request for reasonable attorney fees on review pursuant to RAP 18.1(a) and RCW 49.60.030(2).” Zhu, 404 P.3d at 513 (hyperlinks added).

NOTABLES & IMPLICATIONS:

STATUTORY CONSTRUCTION

(1) “[D]iscerning a statute’s plain meaning requires . . . [the court] to consult the statute itself, ‘as well as related statutes or other provisions of the same act in which the provision is found.’” Id. at 509 (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002)).

(2) “[S]pecific statutory terms may reasonably inform courts as to the meaning of broader statutory terms.” Id. at 510.

WLAD ANTIRETALIATION PROVISION

(3) “Since its inception in 1949, WLAD has always contained an antiretaliation statute.” Id. at 507-08 (citing Laws of 1949, ch. 183, § 7(4))

(4) “[T]he list of prohibited retaliatory actions in RCW 49.60.210(1) is explicitly not exclusive.” Zhu, 404 P.3d at 510 (hyperlink added).

(5) The antiretaliation provision is not limited to solely employers, employment agencies, and labor unions. “[I]n order to encourage people to oppose discrimination, RCW 49.60.210(1) provides in full:

It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

Zhu, 404 P.3d at 508 (citing RCW 49.60.210(1)) (emphasis and hyperlink added).

In 1997, “the Court of Appeals . . . held that it is an unfair practices for a credit union to expel a member because he assisted credit union employees in an antidiscrimination lawsuit, persuasively reasoning that a credit union is an ‘other person’ for purposes of RCW 49.60.210(1).” Zhu, 404 P.3d at 510 (citing Galbraith v. TAPCO Credit Union, 88 Wn.App. 939, 951, 946 P.2d 1242 (1997) (internal quotation marks omitted).

(6) The “Court of Appeals has persuasively applied precedent from the Supreme Court of the United States to hold that ‘[a]n employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of sexual harassment or retaliation.'” Id. at 511 (citing Boyd v. State, 187 Wn.App. 1, 15, 349 P.3d 864 (2015) (internal citation omitted) (alteration in original).

(7) “If prospective employers are allowed to engage in retaliatory refusals to hire, a reasonable employee might well be dissuaded from opposing discriminatory practices for fear of being unofficially ‘blacklisted’ by prospective future employers.” Id. at 511.

WLAD GENERALLY

(8) “WLAD ‘create[s] a private cause of action against any employer engaging in an ‘unfair practice.'” Id. at 507 (citing Kumar v. Gate Gormet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014) (internal citations omitted) (alteration in original).

WLAD POLICY

(9) The primary purpose of WLAD’s antiretaliation statute, RCW 49.60.210(1), is “[m]aintaining unfettered access to statutory remedial mechanisms.” Zhu, 404 P.3d at 508 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)) (alteration in original).

(10) If the court “does not provide . . . [people] some measure of protection against retaliation[,]” then “[people will be less likely to oppose discrimination by bringing claims or testifying. Id. (citing Allison v. Hous. Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)).

(11) “When interpreting WLAD, [WA courts] . . . are particularly mindful that ‘a plaintiff bringing a discrimination case in Washington assumes the role of a private attorney general, vindicating a policy of the highest priority.” Id. (citing Marquis v. City of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996)).

“To further this important purpose, both the legislature and Washington courts require that even in a plain language analysis, WLAD’s provisions must be given ‘liberal construction.'” Id. (citing Marquis, 130 Wn.2d at 108) (internal citation omitted).

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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 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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July 7, 2021May 26, 2022

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

This is a case summary of Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79 (Wash. 1991). Subjects include:

» RCW 49.60.210

» RETALIATORY DISCHARGE

» CAUSATION

» SUBSTANTIAL-FACTOR APPROACH

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

case summarY – 7 PRIMARY Facts:

[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 (Wash. 1991) (internal citations omitted).

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

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): The Washington Law Against Discrimination (WLAD) “contains a sweeping policy statement strongly condemning many forms of discrimination.” Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85 (Wash. 1991) (citing RCW 49.60.010).

[1-2] WLAD REQUIREMENT OF LIBERAL CONSTRUCTION: 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).

[1-3] QUESTIONS OF STATUTORY CONSTRUCTION: 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).

[1-4] TITLE VII DOES NOT REQUIRE LIBERAL CONSTRUCTION: 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 (hyperlinks added).

[1-5] THE FOUR LEGAL ARGUMENTS: 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.

[1-6] THE 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 (hyperlink added).

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.

[1-7] THE 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.

[1-8] THE 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.

[1-9] 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.

[1-10] CAUSATION REQUIRES SHOWING RETALIATION WAS SUBSTANTIAL FACTOR: 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 (hyperlink added).

[1-11] REMAND FOR RETRIAL: 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?

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

[2-1] TESTIMONIAL EVIDENCE: 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.

[2-2] EMPLOYER ARGUMENT: 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.

[2-3] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING DISCRIMINATION CLAIM: 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.

[2-4] COURT CONSIDERED TRIAL COURT EVIDENCE REGARDING RETALIATION CLAIM: 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.

[2-5] COURT OF APPEALS WAS CORRECT: 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 FEES

(1) RCW 49.60.030(2) has been interpreted as granting parties a right 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) In 1895, the civil rights act was amended to add the broad classification “public places.” Id. (internal citations omitted).

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, 110 Wn.2d at 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).

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 – 21 Facts:

ISSUE #1: Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?

ISSUE #2: Is Zhu entitled to attorneys fees on review?

NOTABLES & IMPLICATIONS:

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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: 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?

NOTABLES & IMPLICATIONS:

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case summarY – 7 PRIMARY Facts:

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

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

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[ ]”?