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July 12, 2021October 20, 2024

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.

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

[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 2, 2021October 20, 2024

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)

This is a case summary of Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999). Subjects include the following:

» FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS

» CONSTRUCTIVE DISCHARGE

» DAMAGES

» FRONT & BACK PAY

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**Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999)**

case summarY – 25 Facts:

[1] Boeing hired … Martini in … 1978.

[2] He worked primarily in the AWACS training organization, training Boeing customers (such as the U.S. and foreign governments) to work with the AWACS military aircraft.

[3] In January 1988 Martini was diagnosed as suffering from sleep apnea, following an incident when he fell asleep at the wheel of his car and drove off the road.

[4] If untreated, sleep apnea makes it difficult to breathe during sleep and results in deprivation of restful sleep and fatigue.

[5] Martini was prescribed a continuous positive air pressure (CPAP) machine which is worn during sleep to prevent the breathing cessation characteristic of sleep apnea.

[6] In 1989, after falling asleep and driving his car off the road for a second time, Martini asked his supervisor at Boeing for accommodations to help him manage his sleep apnea, including relocation and a flexible starting time.

[7] In June 1990 Martini was scheduled to conduct AWACS training … in England.

[8] He became concerned about the trip to England because he feared the long travel time … would exacerbate his sleep apnea, causing increased health problems.

[9] Martini therefore requested vacation in lieu of the trip; however, on the understanding that Boeing would transfer him to a new position and accommodate his health concerns upon his return, he agreed to go to England to conduct the scheduled training.

[10] Upon his return from England, Martini asked about being transferred to a new position and was told the personnel office was too busy to deal with his request.

[11] On the same day Martini was asked to prepare for a trip to France to conduct AWACS training courses scheduled to begin a few months later.

[12] Martini subsequently submitted a letter stating his intent to use his remaining leave and to terminate his employment with Boeing on August 20, 1990.

[13] On August 21, 1990, he signed papers terminating his employment.

[14] After leaving Boeing, Martini tried to find work, but was unsuccessful.

[15] Martini commenced the present action against Boeing, claiming damages for disability discrimination and constructive discharge contrary to RCW 49.60 and seeking reinstatement.

[16] The trial court granted partial summary judgment in favor of Boeing, dismissing Martini’s separate constructive discharge cause of action.

[17] The case then proceeded to jury trial on his disability discrimination claim.

[18] The trial court rejected jury instructions proposed by Boeing which would have prevented Martini from recovering back pay (lost wages calculated from the date the employee stopped work until the date of the verdict) or front pay (calculated from the date of the verdict for a reasonably certain period of time that does not exceed the likely duration of employment) as damages for discrimination.

[19] The jury was instructed, however, that no damages could be awarded unless proximately caused by the discriminatory act.

[20] By special verdict the jury found Boeing had discriminated against Martini and had engaged in a closely related series of discriminatory acts contrary to RCW 49.60.

[21] The jury awarded Martini the following damages for Boeing’s unlawful conduct: lost earnings ($205,356), lost future earnings ($480,932), pain, suffering, and emotional distress ($75,000), and past and future medical expenses ($15,000).

[22] The trial court then entered judgment on the jury verdict.

[23] Boeing appealed to Division One, claiming inter alia that, as Martini had not been constructively discharged, he could not be awarded damages for front and back pay.

[24] The Court of Appeals rejected the argument and affirmed the award of front and back pay.

[25] Boeing petitioned this court for review of the award of damages for front and back pay, and the petition was granted.

Martini v. The Boeing Company, 137 Wn.2d 357 (Wash. 1999) (internal citations omitted) (hyperlink added).

ISSUE #1: Whether a plaintiff with a successful discrimination claim under RCW 49.60.180(3) may recover front & back pay as part of damages, if the plaintiff establishes the same was proximately caused by an unlawful discrimination?

[1-1] WLAD MANDATES LIBERAL CONSTRUCTION: “[WLAD] … mandates liberal construction, RCW 49.60.020 … and … embodies a public policy of the highest priority.” Martini v. The Boeing Company, 137 Wn.2d 357, 364 (Wash. 1999) (internal quotation marks and citations omitted) (hyperlink added).

[1-2] WLAD UNFAIR PRACTICES (DISCHARGE & DISCRIMINATION): It is an unfair practice for any employer:

…

(2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

Id. at 365 (citing RCW 49.60.180).

[1-3] UNFAIR PRACTICE TO DISCRIMINATE BASED ON DISABILITY: “One of the acts prohibited by the law against discrimination is discrimination by an employer against an employee because of ‘the presence of any sensory, mental, or physical disability.'” Id. at 366 (citing RCW 49.60.180(3)).

[1-4] UNFAIR PRACTICE TO DISCHARGE BECAUSE OF DISABILITY: “[A]n employer is also prohibited from discharging an employee because of inter alia ‘the presence of any sensory, mental, or physical disability.'” Id. (citing RCW 49.60.180(2)).

[1-5] WLAD DISCHARGE SECTION INCLUDES PROHIBITION AGAINST CONSTRUCTIVE DISCHARGE: “The subsection dealing with unlawful discharge of an employee [(i.e., RCW 49.60.180(2))] has been interpreted to include a prohibition against constructive discharge.” Martini, 137 Wn.2d at 366 (citing Bulaich v. AT & T Info. Sys., 113 Wash.2d 254, 259, 778 P.2d 1031 (1989)) (hyperlink added).

[1-6] CONSTRUCTIVE DISCHARGE DEFINED: “Constructive discharge occurs where an employer forces an employee to quit by making that employee’s work conditions intolerable.” Id. at fn. 3 (citing Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wash.App. 630, 631, 700 P.2d 338 (1985)).

“The doctrine of constructive discharge has been described by this court as requiring ‘a deliberate act of the employer creating the intolerable condition, without regard to the employer’s mental state as to the resulting consequence.” Id. (citing Bulaich, 113 Wash.2d at 261).

[1-7] DISCHARGE OR CONSTRUCTIVE DISCHARGE CAN RESULT FROM WRONGFUL DISCRIMINATION: “A wrongful act of discrimination under the statute does not necessarily lead to discharge of the employee, but it is possible that discharge or constructive discharge can result from such an act.” Id. at 366.

[1-8] DISTINCTION IN WLAD BETWEEN UNLAWFUL DISCRIMINATION & DISCHARGE MEANS DIFFERENT VIOLATIONS: “[S]ince … [WLAD] … deals separately with unlawful discrimination against an employee and unlawful discharge of an employee, it is clear that each of these acts amounts to a different violation of the law against discrimination and gives rise to a separate cause of action under the statute. This would be true even if the claim for discrimination and the claim for discharge arose from the employer’s same act.” Id.

[1-9] WLAD REMEDIES FOR UNFAIR PRACTICES: “[T]he law against discrimination expressly provides:

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….”

Id. at 366-67 (citing RCW 49.60.030(2)).

[1-10] WLAD PLAIN LANGUAGE SHOWS VICTIMS OF VIOLATIONS ENTITLED TO CLAIM FOR DAMAGES: “[The] … plain statutory language [of RCW 49.60.030(2)] makes it clear that a person who suffers from any violation of … [WLAD] shall have a claim for damages.” Martini, 137 Wn.2d at 367 (hyperlink added).

[1-11] VIOLATION OF RCW 49.60.180(3) ENTITLES VICTIMS TO CLAIM FOR DAMAGES UNDER RCW 49.60.030(2) INDEPENDENT OF WRONGFUL DISCHARGE OR CONSTRUCTIVE DISCHARGE: “A person who was discriminated against by an employer in violation of RCW 49.60.180(3) … [has] a claim for damages under RCW 49.60.030(2).” Martini, 137 Wn.2d at 367 (hyperlinks added). According to the Court:

This claim could be asserted regardless of whether or not the employee had been discharged or constructively discharged in violation of RCW 49.60.180(2). The statute clearly does not require that a discharge violating RCW 49.60.180(2) must occur as a condition precedent to a claim for damages under RCW 49.60.030(2). To the contrary, the statutory language unambiguously states that any violation of the statute will form a basis for a claim for damages.

Martini, 137 Wn.2d at 367 (hyperlinks added).

[1-12] RCW 49.60.030(2) MANDATES A CLAIM FOR ACTUAL DAMAGES: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

[1-13] ACTUAL DAMAGES ARE SYNONYMOUS WITH COMPENSATORY DAMAGES: “‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

[1-14] RCW 49.60.030(2) MANDATES FULL COMPENSATORY DAMAGES FOR VIOLATIONS OF RCW 49.60.180(3): RCW 49.60.030(2) “provides a person who has been discriminated against in violation of RCW 49.60.180(3) with a remedy for full compensatory damages, excluding only nominal, exemplary or punitive damages.” Martini, 137 Wn.2d at 368 (hyperlink added).

[1-15] FRONT & BACK PAY AWARD UNDER 49.60.180(3) NOT CONTINGENT UPON SEPARATE & SUCCESSFUL WRONGFUL DISCHARGE CLAIM: “T]here is nothing in the plain language of the statute which conditions an award of damages for front or back pay for a violation of RCW 49.60.180(3) upon a separate and successful claim for wrongful discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 368 (hyperlinks added).

[1-16] WLAD DOES NOT LIMITED TYPE OF COMPENSATION FOR VIOLATION OF RCW 49.60.180(3): WLAD “does not in any way limit the type of compensation that can be claimed for discrimination violating RCW 49.60.180(3), but the usual rules which govern the elements of damage for which compensation may be awarded apply.” Martini, 137 Wn.2d at 368.

[1-17] PROXIMATE CAUSE & MITIGATION LIMIT FRONT AND BACK PAY IF NO CONSTRUCTIVE DISCHARGE: “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

[1-18] WLAD PERMITS FRONT & BACK PAY: “Washington’s law against discrimination (RCW 49.60) permits recovery of front and back pay for a successful discrimination claim when these damages are proximately caused by unlawful discrimination.” Martini, 137 Wn.2d at 364 (hyperlink added).

[1-19] CONSTRUCTIVE DISCHARGE NOT REQUIRED FOR FRONT & BACK PAY UNDER RCW 49.60.180(3): “A Plaintiff with a successful disability discrimination claim under RCW 49.60.180(3) is not required to prove a separate claim of constructive discharge in order to obtain damages for front and back pay.” Martini, 137 Wn.2d at 363.

[1-20] BOEING’S ANALOGOUS CASES: In this case, Boeing argued that “damages for front and back pay cannot be awarded for an act of discrimination in violation of RCW 49.60.180(3) unless there is a separate, successful claim for discharge or constructive discharge under RCW 49.60.180(2).” Martini, 137 Wn.2d at 363.

Boeing further argued that the Court in Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990), and Glasgow v. Georgia Pacific Corp., 103 Wash.2d 401, 693 P.2d 708 (1985), applied Boeing’s proposed rule. Martini, 137 Wn.2d at 369.

However, the Court distinguished both Binkley and Glasgow from the instant case.

[1-21] BINKLEY v. CITY OF TACOMA: In Binkley, “an employee claimed violation of his free speech rights and constructive discharge.” Martini, 137 Wn.2d at 369. The employee won on the free speech issue but lost on the constructive discharge claim.

This Court then “vacated the jury verdict on the free speech issue and affirmed on the constructive discharge claim” thereby leaving the employee with no successful claims for relief. See id.

Nevertheless, Boeing relied “on a statement in Binkley that ‘back pay could have been awarded only if Binkley was constructively discharged.'” Martini, 137 Wn.2d at 369 (internal citation omitted). But the Court distinguished Binkley declaring:

The plaintiff was unsuccessful in both his constitutional claim […] and his claim for constructive discharge. He therefore had no basis for an entitlement to damages […] the court’s statement about the damages that the plaintiff might have claimed if the substantive issues had been decided differently have no bearing on whether loss of pay can be awarded in a wrongful discrimination suit.

Martini, 137 Wn.2d at 369 (emphasis added).

The Court also distinguished Binkley from Martini in that “Binkley involved a free speech issue and did not involve a claim under RCW 49.60.” Martini, 137 Wn.2d at 369. The Court then evaluated Glasgow.

[1-22] GLASGOW v. GEORGIA-PACIFIC CORP: In Glasgow, the Court “set out the test under RCW 49.60.180(3) for discrimination due to sexual harassment, finding that the plaintiffs suffered discrimination in violation of the statute and affirming an award of damages for ‘physical, emotional and mental suffering.'” Martini, 137 Wn.2d at 369 (internal citation omitted).

Boeing supported its argument by relying on the Court’s statement in Glasgow that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.” Martini, 137 Wn.2d at 369-70 (internal citation omitted).

However the Court distinguished Glasgow, stating:

There is nothing in Glasgow which suggests a different kind of damages can be claimed for a constructive discharge violation of the law against discrimination as opposed to a discrimination violation of the statute. At best, Glasgow simply suggests that a different amount of damages might be awarded in a case where there was constructive discharge (the suggestion being that where an employee is constructively discharged, higher damages may be appropriate).

Martini, 137 Wn.2d at 370.

[1-23] MARTINI’S ANALOGOUS CASE: In response to Boeing’s argument, Martini, cited Dean v. Municipality of Metro. Seattle-Metro, 104 Wash.2d 627, 708 P.2d 393 (1985).

In Dean, the Court upheld an award of emotional distress damages, stating:

Under RCW 49.60, proof of discrimination results in a finding of liability. The plaintiff, once having proved discrimination, is only required to offer proof of actual anguish or emotional distress in order to have those damages included in recoverable costs pursuant to RCW 49.60. The damages result from the injury, the discrimination.

Martini, 137 Wn.2d at 370-71.

The Court then noted both that “in Dean the instruction to the jury to award damages for lost earnings (with interest thereon) was not challenged by the parties and was affirmed by this court […] and […] the reasoning in Dean suggests that damages which are proximately caused by the wrongful action may be claimed.” Martini, 137 Wn.2d at 370-71 (emphasis added).

Ultimately, the Court found that “[a]lthough not directly controlling, Dean is in contradiction to the argument made by Boeing that in certain situations a victim of discrimination in violation of RCW 49.60.180(3) may not claim front or back pay.” Martini, 137 Wn.2d at 371.

[1-24] THE COURT’S ANALOGOUS CASE: The Court eventually cited Curtis v. Security Bank, 69 Wash.App. 12, 847 P.2d 507 (1993), and found that it indicated “Washington courts have been willing to affirm awards of damages for front and back pay under RCW 49.60 in cases where there has been no constructive discharge.” Martini, 137 Wn.2d at 372.

In Curtis, a bank employee developed a hip condition and was voluntarily laid off. Martini, 137 Wn.2d at 371. She sued her employer for failing to accommodate her disability in violation of WLAD. Id. at 371-72. “The trial court entered judgment in the employee’s favor, awarding damages for front and back pay. The employer appealed and the award of damages was affirmed.” Id. at 372. There was no separate claim for either discharge or constructive discharge.

The Court ultimately found “that the case law interpreting RCW 49.60 does not support Boeing’s argument. Binkley and Glasgow are not controlling and Dean is clearly inconsistent with the position advocated by Boeing.” Martini, 137 Wn.2d at 372.

[1-25] WLAD PROVIDES A REMEDY OF ACTUAL OR COMPENSATORY DAMAGES: The Court concluded WLADs plain language provides “a remedy of actual (or compensatory) damages for an employee who has been injured in violation of RCW 49.60.” Martini, 137 Wn.2d at 377.

[1-26] WLAD DOES NOT PREDICATE BACK PAY UPON SEPARATE CONSTRUCTIVE DISCHARGE FINDING: Moreover, “[t]he statute does not predicate an award of back pay for discrimination upon a separate finding of constructive discharge.” Id. at 377-78.

And “Washington case law, in particular Dean, supports the proposition that back pay may be awarded for a discriminatory act in violation of RCW 49.60.180(3) even if there is no finding of constructive discharge, so long as the damages were proximately caused by the wrongful act.” Martini, 137 Wn.2d at 378.

[1-27] COURT OF APPEALS AFFIRMED: The Court affirmed the Court of Appeals.

ISSUE #2: Does Title VII and Washington’s law against discrimination have similar remedy provisions such that Title VII case law is applicable to the resolution of this case?

[2-1] WLAD IS BROADER IN SCOPE: “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Martini, 137 Wn.2d at 372. (internal citations omitted) (hyperlink added).

Moreover, Title VII does not “contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 372-73 (citing RCW 49.60.020) (hyperlink added).

Ultimately, “[t]he remedies section of Washington’s law against discrimination is … radically different from the remedies section of Title VII.” Id. at 374.

[2-2] TITLE VII REMEDIES PROVISION: The remedies provision for Title VII is as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay … or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

Id. at 373 (citing 42 U.S.C. § 2000e-5(g)(1)) (hyperlink added).

[2-3] TITLE VII COMPENSATORY DAMAGES EXCLUDE BACK PAY: In 1991, “Title VII was amended … to allow for recovery of compensatory and punitive damages in addition to the available equitable remedies.” Id. at 373 (citing 42 U.S.C. § 1981a(a)) (hyperlinks added).

But “compensatory damages were so defined as to exclude an award of back pay:

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. § 2000e-5(g) ].

Martini, 137 Wn.2d at 373 (citing 42 U.S.C. § 1981a(b)(2)) (hyperlink added).

Thus, “Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device.” Id. at 375 (hyperlink added).

[2-4] TITLE VII BACK PAY IS AN EQUITABLE REMEDY: “Title VII … explicitly regards back pay as an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373 (hyperlink added).

“Federal courts have interpreted Title VII in this way, limiting the circumstances in which back pay may be awarded so as to be consistent with the statutory scheme to provide primarily equitable relief.” Id. at 373-74 (hyperlink added).

To support this finding, the Court referenced a Seventh Circuit case as follows:

The Seventh Circuit noted in Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir.1989): Title VII only provides for equitable relief; a district court cannot award damages, either punitive or compensatory, to redress a violation of Title VII. Consequently, a district court may award back pay to a plaintiff only as an equitable remedy, i.e., if a plaintiff can demonstrate that the defendant discharged him or her, either actually or constructively.

Martini, 137 Wn.2d at 374 (hyperlinks added).

[2-5] WLAD REMEDIES PROVISION: “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 a reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….” Martini, 137 Wn.2d at 374 (citing RCW 49.60.030(2)) (emphasis in original) (hyperlink added).

[2-6] WLAD COMPENSATORY DAMAGES INCLUDE BACK PAY: “Although RCW 49.60.030(2) also contemplates equitable remedies, such as power to enjoin future violations and to provide for any of the Title VII remedies, the provision very explicitly allows for recovery of ‘actual damages’ which may be awarded as either a sole remedy or in conjunction with an equitable remedy such as an injunction.” Martini, 137 Wn.2d at 374 (emphasis added).

The Court determined that “‘actual damages’ include full compensatory damages.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041 (1976)) (emphasis added).

Thus, in contrast to Title VII damages, “Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

[2-7] THE LEGISLATIVE COMMAND TO AWARD DAMAGES IS STRONGER UNDER WLAD THAN TITLE VII: “The use of the word “may” in the remedies provision of Title VII makes it clear that an award of back pay for a breach of Title VII is not mandated by the statute.” Id. at 375 (citing 42 U.S.C. § 2000e-5(g)(1) (stating that when the statute has been violated, the court “may” order affirmative action which “may” include reinstatement with or without back pay)) (hyperlinks added).

“In contrast, Washington’s law against discrimination is more categorical, mandating that a victim of a violation of the statute ‘shall have a civil action … to recover the actual damages.'” Id. (citing RCW 49.60.030(2))(emphasis in original) (hyperlink added).

“The legislative command to award damages is therefore stronger in Washington’s statute than in Title VII.” Id. (hyperlink added).

[2-8] SCOPE OF WLAD VS. TITLE VII: In this case, the Court first determined that the scope of Title VII is not as broad as that in WLAD, because (1) Title VII does not cover marital status, age, or disability as a protected class; and (2) Title VII does not contain a “direction for liberal interpretation” unlike WLAD (RCW 49.60.020). Martini, 137 Wn.2d at 372-73.

Consequently, it compared damage provisions.

[2-9] COMPARISON OF DAMAGE PROVISIONS: The Court determined that Title VII contained damage provisions that were more limited than WLADs.

Particularly, the Court found that Title VII excludes back pay from compensatory damages and regards it as “an equitable remedy awarded under 42 U.S.C. § 2000e-5(g)(1) in cases where reinstatement is appropriate.” Martini, 137 Wn.2d at 373.

In contrast, WLAD “provides for a general award of ‘actual’ (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.” Id. at 375.

The Court further determined that “[t]he legislative command to award damages is … stronger in Washington’s statute than in Title VII,” because Title VII uses the term “may” in its remedies provision whereas WLAD uses the categorical term “shall.” Id.

[2-10] TITLE VII CASE LAW IS INAPPLICABLE TO RESOLUTION OF THIS CASE: The Court concluded that “[s]ince the remedies provisions of Title VII and Washington’s law against discrimination are so different, the Title VII cases cited by Boeing barring an award of back pay absent a finding of constructive discharge are clearly distinguishable from the present case which involves a violation of state law.” Martini, 137 Wn.2d at 375.

Accordingly, the Court found that “[t]he Title VII case law cited by Boeing must be distinguished because the Title VII damages provision differs markedly from Washington’s law against discrimination.” Id. at 377.

ISSUE #3: Will prohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim further the WLAD policy?

[3-1] TITLE VII POLICY: According to the Ninth Circuit, “[t]he purposes of Title VII are best served when parties, where possible, attack discrimination within the context of their existing employment relationships…. Restricting backpay awards encourages the employee to work with supervisors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate the discrimination.” Id. at 376 (citing Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986)) (hyperlink added).

[3-2] WLAD POLICY IF FURTHERED BY ALLOWING BACK PAY DAMAGES FOR WLAD VIOLATIONS: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-3] THE DOCTRINE OF PROXIMATE CAUSE STILL PROTECTS THE EMPLOYER FROM UNWARRANTED CLAIMS OF BACK PAY DAMAGES UNDER WLAD: “[T]he doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id.

[3-4] TITLE VII POLICY IS TOO LIMITED FOR WLAD: The Court considered the Defendant’s policy argument: “[p]rohibiting a back pay award for violation of RCW 49.60.180(3) in cases where there is no constructive discharge would further the aims of Washington’s law against discrimination.” In so doing, the Court evaluated the policy of Title VII according to Ninth Circuit case law — Thorne v. City of El Segundo, 802 F.2d 1131, 1134 (9th Cir.1986), supra.

But the Court reasoned:

[T]his argument does not take into account the burden litigation places upon plaintiffs and the inherent disincentive to quit and litigate rather than to stay on the job. Plaintiffs who leave their place of employment potentially face long and difficult battles to obtain damages for discrimination–even if they can prove that they have been discriminated against and can prove the discrimination was the proximate cause of lost pay, it could still be years Before damages are obtained.

Martini, 137 Wn.2d at 376.

The Court then applied its reasoning to the present case:

“Martini left Boeing in 1990, and his case is still in litigation eight years later. A rational employee is unlikely to decide that quitting and suing is easier than attempting to resolve a dispute in the workplace.”

Id. at 376.

[3-5] BACK PAY POLICY: “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 377.

[3-6] PROXIMATE CAUSE AS A REGULATOR: And “the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

[3-7] PROHIBITING WLAD BACK/FRONT PAY ABSENT SUCCESSFUL CONSTRUCTIVE DISCHARGE CLAIM DOES NOT FURTHER WLAD POLICY: The Court concluded that “[p]rohibiting an award of back or front pay for wrongful discrimination absent a successful constructive discharge claim would not further the policy behind Washington’s law against discrimination.” Id. at 376.

[3-8] ALLOWING WLAD BACK PAY INCENTIVISES EMPLOYERS AND EMPLOYEES TO ERADICATE DISCRIMINATION: Moreover, “allowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id.

[3-9] MADATE OF LIBERAL INTERPRETATION PROTECTS WLAD REMEDIES:“[T]he law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy. Id. at 376-77 (citing RCW 49.60.020).

[3-10] DOCTRINE OF PROXIMATE CAUSE ACTS AS A REGULATOR: And, “[i]n any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.

ISSUE #4: Should the Court award attorney fees to Martini for responding to this appeal?

[4-1] RAP 18.1(a): “If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, the party must request the fees or expenses as provided in this rule…. ” Id. at 377 (referencing RAP 18.1(a)).

[4-2] WLAD: “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 a reasonable attorneys’ fees ….” Id.

[4-3] In this case, the Court found that “[i]n light of our rejection of Boeing’s arguments, we find Martini should be awarded attorney fees and costs on appeal in addition to the attorney fees and costs awarded by the trial court.” Id. at 377.

[4-4] The Court awarded “Martini attorney fees on appeal and remand[ed] to the trial court to determine the amount of attorney fees to be awarded.” Id. at 378.

NOTABLES & IMPLICATIONS:

FRONT AND BACK PAY: LIMITATIONS

(1) “The determinations of both proximate cause and mitigation are factual matters for the jury, operating to limit front and back pay awards in cases where there has been discrimination but no finding of constructive discharge.” Id. at 368.

TITLE VII AND WLAD REMEDIES PROVISIONS ARE SIGNIFICANTLY DIFFERENT

(2) “Title VII and Washington’s law against discrimination have significantly different remedies provisions … [.]” Id. at 372. “[T]he scope of Title VII is not as broad as RCW 49.60 since Title VII does not protect against discrimination because of marital status, age or disability.” Id. “Nor does Title VII contain a direction for liberal interpretation, such as is the mandate in Washington’s law against discrimination.” Id. at 373 (internal citations omitted). Moreover, the Court declared:

The remedies section of Washington’s law against discrimination is therefore radically different from the remedies section of Title VII. Title VII specifically mentions back pay but excludes such an award from compensatory damages, leaving back pay as primarily an equitable device. But in contrast Washington’s law against discrimination provides for a general award of “actual” (or compensatory) damages, with no limitation, qualification, or indication that back pay should be excluded.

Id. at 374-75.

WLAD POLICY (BACK PAY)

(3) “[A]llowing the possibility of damages for back pay where an employer has violated the law against discrimination provides an incentive for employers to work with employees in the workplace to eradicate discrimination.” Id. at 376.

(4) “Furthermore, the law against discrimination provides a remedy for the employee who had been discriminated against and the liberal interpretation provision of the statute operates to protect that remedy.” Id. at 376-77 (citing RCW 49.60.020).

(5) “In any event, the doctrine of proximate cause operates to prevent an employee from claiming back pay where the termination of employment was not caused by the wrongful act.” Id. at 377.