Appeal from Superior Court, Pierce (92-2-09561-6) County; Honorable Anthony Wartnik, Judge. Judgment Date: 1-25-95.
Sanders, J., Durham, C.j., Dolliver, Smith, Guy, Madsen, J.j. Madsen, J. (concurring by separate opinion). Talmadge, J. (dissenting by separate opinion), Alexander, J.
The opinion of the court was delivered by: Sanders
SANDERS, J.--Employee Sharon Griffin (hereinafter Griffin) appeals a partial summary judgment dismissing that portion of her complaint seeking statutory remedies for alleged sexual discrimination pursuant to RCW 49.60, the State's law against discrimination. Because of the importance of the claim we granted direct review; however, we affirm the trial court's dismissal.
Two principal issues are raised: (1) is an employer of fewer than eight employees exempt from statutory remedies provided the employee under RCW 49.60 and, if so, (2) does this exemption violate the State's privileges and immunities clause, Constitution article I, section 12. We hold employers of fewer than eight employees are statutorily exempt from these remedies provided under RCW 49.60 and conclude the exemption passes constitutional muster.
On September 20, 1990, Griffin was hired by attorney Carson Eller (hereinafter Eller), a sole practitioner, as his legal secretary. There were no written employment contracts or policies. Griffin was Eller's only full-time employee. Attorney Eller never employed eight or more persons. He terminated Griffin's employment on July 15, 1991, indicating he could no longer afford to retain her in his employ.
Griffin alleges that she was subjected to a hostile work environment throughout her employment: Eller often made crude remarks of a sexual nature to and about her in spite of her objections; Eller induced others to make sexually abusive comments to and about her; and Eller subjected another female employee to similar sexual harassment, causing her to resign in March 1991. Griffin also alleges Eller denied her dental benefits, refused to allow her to take a paid vacation, assigned some of her duties to others, and ultimately terminated her employment in retaliation to her objections. Griffin asserts that Eller's conduct violates the law against discrimination, RCW 49.60. Eller disputes these factual allegations however declines to address them on appeal.
Griffin commenced suit against her former employer in Pierce County Superior Court alleging five causes of action: (1) sexual harassment and retaliation in violation of the statutory law against discrimination, RCW 49.60; (2) wrongful termination in violation of public policy; (3) negligent infliction of emotional distress; (4) outrage; and (5) failure to pay wages. Eller moved for summary judgment to dismiss all of Griffin's claims; however, the trial court granted Eller only partial summary judgment, dismissing the statutory claim for sexual harassment and retaliation. Ultimately, Griffin recovered $50,000 on the outrage and negligent infliction of emotional distress claims and appealed the partial summary judgment dismissing the statutory sexual discrimination claim.
The statute declares a public policy to obtain and hold employment without sexual discrimination and further provides:
Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction 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. . . .
Former RCW 49.60.030(2) (emphasis added).
Griffin suggests this section be read independently from the remainder of the same chapter, which defines "employer" narrowly and exclusively:
49.60.040 Definitions. As used in this chapter:
"Employer" includes 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[.]
RCW 49.60.040 (emphasis added).
The statute was first enacted in 1949 to discourage employment discrimination on the basis of race, creed, color, or national origin. It created a state agency to administer the law and defined "employer" as set forth above. Laws of 1949, ch. 183. The original enactment, however, did not create a private cause of action by its terms but was amended to that effect in 1973. Laws of 1973, ch. 141.
There is no legislative history suggesting the purpose of the new statutory private remedy was to permit a statutory cause of action against small, otherwise exempt, employers. Unlike Marquis v. City of Spokane, 130 Wash. 2d 97, 922 P.2d 43, (1996), we are here addressing the issue of a statutory exemption for small employers rather than statutory silence as to independent contractors.
Since creation of the statutory private remedy in 1973 this court has considered on two occasions its applicability to employers who do not otherwise meet the statutory definition and on each occasion characterized it in the nature of an exemption.
In Bennett v. Hardy, 113 Wash. 2d 912, 915, 784 P.2d 1258 (1990), we stated in dicta that a small employer was exempt from these statutory remedies ("plaintiffs . . . cannot bring a cause of action against him under RCW 49.60 . . . because he employs fewer than eight employees and thus is not within that statute's definition of employer").
Bennett's dicta was followed by our holding in Farnam v. CRISTA Ministries, 116 Wash. 2d 659, 807 P.2d 830 (1991) that an employer which does not meet the statutory definition (in that case a religious organization) is simply "exempt from the provisions of this chapter." Farnam, 116 Wash. 2d at 673, 678 (emphasis added). The same considerations which prompted this court to so hold in Farnam (broad application, liberal construction, and legislative history) apply equally to the case at bar, which simply focuses on a different phrase in the same statutory definition of employer found under RCW 49.60.040.
Having previously determined in Farnam that this statute does not support a private cause of action against an exempt employer, we are controlled by that precedent; however, we still must determine whether the statute as applied here violates the State's privileges and immunities clause, Constitution article I, section 12.
While asserting her claim under the state constitution, Griffin does not seek an independent state constitutional interpretation or support an analysis independent of the federal Constitution through a brief which addresses factors identified in State v. Gunwall, 106 Wash. 2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Neither does she argue for a less deferential standard of legislative review under our state constitution. Compare Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 507-08 (1984) (presumption that statute is constitutionally valid "seriously hampers the courts' accomplishment of what article 1, section 1 of the Washington Declaration defines as the fundamental purpose of our state's constitution and government: to protect and maintain individual rights"); Fine Arts Guild, Inc. v. City of Seattle, 74 Wash. 2d 503, 445 P.2d 602 (1968) (certain restraints on state constitutional free speech rights presumed unconstitutional). Thus, the extent to which the constitutional guaranties found in article I, section 12, exceed those available under the equal protection clause of the Fourteenth Amendment remains an open question. Compare Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 642 & n.2, 771 P.2d 711, 780 P.2d 260 (1989) ("as for the analysis based on the language of our privileges and immunities clause, this question must wait for another case"); see generally State v. Smith, 117 Wash. 2d 263 282-88, 814 P.2d 652 (1991) (Utter, J., Concurring).
Instead, Griffin urges a traditional federal analysis and contends intermediate scrutiny is appropriate because of the critical importance of the protections extended or denied by the law against discrimination. However, intermediate scrutiny requires an important right and at least a semisuspect class. In re Runyan, 121 Wash. 2d 432, 448, 853 P.2d 424 (1993). This interest is important, but the class of small employers, or persons employed by them, is neither suspect nor semisuspect.
Therefore the rational basis test is the appropriate standard.
Under the rational basis test the court must determine: (1) whether the legislation applies alike to all members within the designated class; (2) whether there are reasonable grounds to distinguish between those within and those without the class; and (3) whether the classification has a rational relationship to the proper purpose of the legislation.
Convention Ctr. Coalition v. City of Seattle, 107 Wash. 2d 370, 378-79, 730 P.2d 636 (1986).
Griffin argues that RCW 49.60 fails the first prong of the test by failing to apply alike to all members within the designated class; i.e., suits against large employers are permitted, whereas suits against small employers are not. However, the Legislature may constitutionally approach the problem of employment discrimination one step at a time. This court has said, "'It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.'" O'Hartigan v. Department of Personnel, 118 Wash. 2d 111, 124, 821 P.2d 44 (1991) (quoting Railway Express Agency, Inc. v. People of New York, 336 U.S. 106, 110, 69 S. Ct. 463, 93 L. Ed. 533 (1949)).
Griffin then contends the legislative classification offends the second prong of the test for lack of reasonable grounds for distinguishing between those within and those without the class. However, exemptions for small employers are common and have a rational basis. According to the State by State Guide to Human Resources Law, 47 states have fair employment laws; 10 have no small-employer exemption; 13 have an employer exemption of between 2 and 7 employees; and 24 have employer exemptions between 8 and 15 employees. Ronald M. Green et al., State by State Guide to Human Resources Law, Table 1.2-3 at 22-24 (1990). The Civil Rights Act of 1964 originally provided a small-employer exemption of 25. 42 U.S.C. sec. 2000e. Later it was proposed to reduce the number of employees to eight. Armbruster v. Quinn, 711 F.2d 1332, 1337 n.4, 72 A.L.R.Fed. 504 (6th Cir. 1983) (citing the legislative history of the federal act's employer definition). Congress finally settled on 15. Id. Griffin cites no case invalidating any of these exemptions on equal protection grounds, and, arguably, if the Legislature is entitled to relieve small employers of a statutory or regulatory burden, it must draw the line somewhere.
Finally, Griffin contends the third prong is not satisfied because the small employer exclusion is not "rationally related to the purpose of the legislation." O'Hartigan, 118 Wash. 2d at 122. However, the Legislature may well have been advancing legitimate state purposes by conserving limited state resources and protecting small businesses from private litigation expense, in addition to avoiding the regulatory burden inherent in regulation by the Human Rights Commission, per se. Compare Bennett, 113 Wash. 2d at 928-29. Commentators offer similar reasoning for similar small employer exemptions. See, e.g., Robinson v. Fair Employment & Housing Comm'n, 2 Cal. 4th 226, 825 P.2d 767, 5 Cal. Rptr. 2d 782 (1992); Michael C. Tobriner, California FEPC, 16 Hastings L.J. 333, 342 (1965), *fn1 and Armbruster, 711 F.2d at 1337 n.4.
In a case strikingly similar to our own, under a similar employment discrimination statute which defined "employer" as any person who employs 15 or more employees, a legal secretary sued her sole-practitioner-attorney employer for sexual harassment. The Oklahoma Supreme Court rejected an equal protection challenge under the Fourteenth Amendment holding:
The legislature doubtless sought to avoid imposing upon small shops the potentially disastrous expense of defending against a state-law claim for workplace discrimination, . . . . We do not find this legislatively declared objective offensive to the Fourteenth Amendment's equal protection clause . . . .
[The statute] bears a rational relationship to a permissible state objective. . . .
Brown v. Ford, 905 P.2d 223, 227 (Okla. 1995) (italics omitted).
The Legislature may have had many reasons to adopt the small employer exemption in RCW 49.60. Certainly the State has a substantial interest in the well-being of small business with regard to the state economy, tax base, and opportunities for employment. Approximately 75 percent of business establishments in Washington have fewer than nine employees; however, they employ only about 17.5 percent of the private employee work force. U.S. Bureau of the Census, "County Business Patterns 1992: Washington," CPB 92-49 (1994). The Legislature could well have concluded burdening so many employers to benefit so few employees was not, on balance, of sufficient public benefit to offset the burden.
Griffin argues exempting small employers from statutory remedies would not serve the statutory purpose discussed in WAC 162-16-160(2) promulgated by the Human Rights Commission:
(2) Purposes of exemption. The principal purposes of exempting persons who employ less than eight from the enforcement authority of the commission are:
(a) To relieve small business of a regulatory burden; and
(b) In the interest of cost effectiveness, to confine public agency enforcement of the law to employers whose practices affect a substantial number of persons.
Griffin argues subjecting small employers to private lawsuits is neither a regulatory burden nor does it involve public agency enforcement. We have held "in interpreting a statute, great weight must be accorded to the contemporaneous construction placed upon it by officials charged with its enforcement, particularly where that construction has been accompanied by silent acquiescence of the legislative body over a long period of time." Newschwander v. Board of Trustees, 94 Wash. 2d 701, 711, 620 P.2d 88 (1980) (citations omitted). However this administrative rule is hardly a "contemporaneous" construction of the statutory definition. Rather the small employer exemption was a feature of RCW 49.60 long before the adoption of the regulation by the commission. The definition of employer was enacted in 1949 when the only remedy under the statute was to file a complaint with the commission. The private cause of action under the statute was not created until 1973. WAC 162-16-160 was not adopted until 1982, 33 years after the statute was enacted and 9 years after the private cause of action was created. WAC 162-16-160. The regulation states the "principal purposes" were to relieve small businesses of a regulatory burden and conserve state resources; however, it does not say these are the only legislative purposes. Moreover, the regulation characterizes the definition as an "exemption" from the statute.
It is undoubtedly a greater burden for a small business to respond to a lawsuit seeking enhanced statutory remedies including reasonable attorney fees than to be merely brought before the commission in an administrative proceeding. Amicus attorneys for Washington Employment Lawyers Association ably argue a statutory right to obtain an award of reasonable attorney fees against one's adversary is essential to a truly adequate private remedy and serves an important public function as well. Indeed, such a right is extremely valuable and should never be compromised or diminished through an inadequate award; however, by the same token the desirability of such a remedy does not establish its availability where the Legislature has not so provided.
Even if we were to conclude otherwise on the constitutional issue, the remedy of partial invalidation would be unavailable to Griffin unless we also concluded the Legislature would have passed the statute absent the small employer exemption. Otherwise, the proper remedy is complete statutory invalidation rather than changing legislative intent by upsetting the legislative compromise. Lynden Transport, Inc. v. State, 112 Wash. 2d 115, 123, 768 P.2d 475, 84 A.L.R.4th 405 (1989); Leonard v. City of Spokane, 127 Wash. 2d 194, 201, 897 P.2d 358 (1995).
Legislators in other states feared the political repercussions of enacting laws similar to the law against discrimination absent a small employer exemption. See Robinson v. Fair Employment & Housing Comm'n, 2 Cal. 4th 226, 825 P.2d 767, 775, 5 Cal. Rptr. 2d 782 (1992); Michael C. Tobriner, California FEPC, 16 Hastings L.J. 333, 342 (1965); Armbruster v. Quinn, 711 F.2d 1332, 1337 n.4, 72 A.L.R.Fed. 504 (6th Cir. 1983) (citing the legislative history of the federal act's employer definition).
We therefore hold this exemption does not violate Constitution article I, section 12.
In view of this Disposition we find it unnecessary to address certain other issues raised by Eller. Eller is not entitled to recover reasonable attorney fees on appeal because an award of reasonable attorney fees is not permitted by this statute under these circumstances. The judgment of the trial court is therefore affirmed. Eller shall recover his statutory costs.