Certification From the United States District Court for the Western District of Washington in Larry C. Ockletree, Plaintiff,
Franciscan Health System et al., Defendants
Argued May 9, 2013.
Dwayne L. Christopher (of Dwayne L. Christopher PLLC ) and James W. Beck and Stephanie Bloomfield (of Gordon Thomas Honeywell ), for plaintiff.
Sheryl D.J. Willert and Mary H. Spillane (of Williams Kastner ) ( Christopher L. Johnson and Karen R. Glickstein of Polsinelli PC, of counsel), for defendants.
Steven T. O'Ban, Kristen K. Waggoner, and Geoffrey A. Enns on behalf of Religious Organizations, amici curiae.
Sarah A. Dunne, Jennifer Lee, and Daniel Mach on behalf of American Civil Liberties Union, American Civil Liberties Union of Washington, and Anti-Defamation League, amici curiae.
George M. Ahrend and Bryan P. Harnetiaux on behalf of Washington State Association for Justice Foundation, amicus curiae.
Karen A. Kalzer on behalf of Pacific Northwest Chapter of the United Methodist Church, Olympia Diocese of the Episcopal Church, and Presbytery of Seattle of the Presbyterian Church USA, amici curiae.
Jeffrey L. Needle, Jess A. Wing, and Janet S. Chung on behalf of Washington Employment Lawyers Association and Legal Voice, amici curiae.
AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice James M. Johnson. AUTHOR: Justice Debra L. Stephens. WE CONCUR: Justice Mary E. Fairhurst, Justice Steven C. González, Justice Sheryl Gordon McCloud. AUTHOR: Justice Charles K. Wiggins.
C. Johnson, J.
[179 Wn.2d 771] ¶ 1 The certified questions in this case ask us to decide whether the exemption of nonprofit religious organizations from the definition of " employer" under Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, violates article I, section 11 or article I, section 12 of the Washington Constitution. Larry C. Ockletree brought suit in state court against Franciscan Health System (FHS), challenging the termination of his employment following a stroke. Ockletree, who is African-American, claimed that his termination was the result of illegal discrimination on the basis of race and disability. FHS removed the suit to federal court and moved to dismiss Ockletree's claims. FHS argued that it was exempt from WLAD as a nonprofit religious organization. Ockletree challenged the validity of the religious employer exemption under the state and federal constitutions. The district court certified questions to this court asking whether the religious employer exemption violates Washington's article I, section 11 establishment clause [179 Wn.2d 772] or its article I, section 12 privileges and immunities clause. We answer both questions in the negative.
1. The Washington Law Against Discrimination excludes religious non-profit organizations from its definition of " employer" (Wash. Rev. Code § 49.60.040(11)). Such entities are therefore facially exempt from WLAD's prohibition of discrimination in the workplace. Does this exemption violate Wash. Const. Article I, § 11 or § 12?
2. If not, is Wash. Rev. Code § 49.60.040(11)'s exemption unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons wholly unrelated to any religious purpose, practice, or activity?
Order Certifying Question to the Wash. Supreme Ct. (Certification) at 4.
¶ 2 Plaintiff Larry Ockletree was employed as a security guard by FHS in 2010. He staffed a desk in the emergency department at St. Joseph Hospital, where he checked visitors' identification and issued name tags. While employed by FHS, Ockletree suffered a stroke that impaired his nondominant arm. FHS determined he could not perform the essential functions of his job with or without accommodation, refused his requested accommodation, and terminated his employment.
¶ 3 Ockletree brought multiple causes of action in state court, including employment discrimination on the basis of race and disability in violation of federal law and WLAD. FHS removed the case to federal court and moved to dismiss four of Ockletree's claims, including his WLAD [179 Wn.2d 773] claim. Jurisdiction for Ockletree's federal employment discrimination claim under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, depends upon whether he timely exhausted administrative remedies. The filing period in question depends upon whether he has a valid state law discrimination claim. If Ockletree's WLAD claim fails, his federal claim is time barred.
¶ 4 FHS asserts that as a nonprofit religious organization, it is exempt from WLAD's definition of " employer" and therefore exempt from WLAD's private cause of action. RCW 49.60.040(11); Certification at 2-3. Ockletree challenges the exemption's validity under the state and federal constitutions. The United States District Court certified questions to this court asking whether the religious employer exemption violates article I, section 11 or article I, section 12 of the Washington Constitution. 
¶ 5 The certified questions ask us to determine the constitutionality of the exemption of religious nonprofit organizations from WLAD.  WLAD was enacted in 1949 with the purpose of ending discrimination by employers " on the basis of race, creed, color, or national origin." Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788 (1996). WLAD has expanded over the years to bar discrimination on the basis of age, sex, sexual orientation, and disability, and to incorporate a private right of action for employees and persons who use public accommodations. See RCW 49.60.040.
[179 Wn.2d 774] ¶ 6 As enacted, the law exempted from the definition of " employer" " any religious, charitable, educational, social or fraternal association or corporation, not organized for private profit." Laws of 1949, ch. 183, § 3(b). In 1957, the legislature rewrote the definition of " employer" to its present form, bringing secular nonprofit organizations within the statute's
ambit and exempting only small employers and religious nonprofits. See Laws of 1957, ch. 37. The definition of " employer" for purposes of WLAD is currently found in RCW 49.60.040(11), which provides, " '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."
¶ 7 The WLAD religious employer exemption has been examined in two earlier cases raising arguments under the state constitution, but in neither case did we expressly reach the state constitutional issue. The first came in 1991, when Nancy Farnam, an employee of a religious nursing home, challenged her dismissal for reporting the removal of a patient's gastric tube. Farnam v. CRISTA Ministries, 116 Wn.2d 659, 662-66, 807 P.2d 830 (1991). Farnam argued that the WLAD exemption was invalid under article I, section 11 and article I, section 12 of the Washington Constitution. We noted that the arguments were presented to us without sufficient briefing analyzing the state constitutional claims, and we declined to address their merits. However, we noted that we rejected a similar challenge to the federal exemption under the equal protection clause in American Network, Inc. v. Utilities Transportation Commission, 113 Wn.2d 59, 77, 776 P.2d 950 (1989). Farnam, 116 Wn.2d at 681.
¶ 8 A second state constitutional challenge to the religious employer exemption came in 2010, when Angela Erdman, a church elder employed in a secular position, was dismissed on the recommendation of the church tribunal. Erdman v. Chapel Hill Presbyterian Church, 156 Wn.App. 827, [179 Wn.2d 775] 234 P.3d 299 (2010) ( Erdman I), rev'd on other grounds, 175 Wn.2d 659, 286 P.3d 357 (2012) ( Erdman II). Erdman challenged the dismissal, asserting several causes of action, including a violation of WLAD. Moving for summary judgment dismissal of Erdman's WLAD claim, the church asserted the religious employer exemption. Erdman countered that the exemption was an unconstitutional privilege or immunity under article I, section 12 because it interfered with her fundamental right to pursue an occupation. Just as in Farnam, the Court of Appeals found that Erdman had cited " no relevant authority" to support her state constitutional claim and declined to examine the merits. Erdman I, 156 Wn.App. at 849. We did not take review of Erdman's article I, section 12 claim and resolved the case on other grounds. See Erdman II, 175 Wn.2d at 683.
¶ 9 Here, we are asked to confront the question of whether the religious employer exemption violates article I, section 11 or article I, section 12 of the Washington Constitution.
a. Article I, section 12
¶ 10 Article I, section 12 provides, " No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Passed during a period of distrust toward laws that served special interests, the purpose of article I, section 12 is to limit the sort of favoritism that ran rampant during the territorial period. Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 26-27 (G. Alan Tarr ed., 2002). Although the text of the clause was modeled after a similar provision in Oregon's 1859 Constitution, Washington's framers explicitly broadened the reach of the clause by including " corporations" in the language of article I, section 12. See State v. Smith, 117 Wn.2d 263, 285, 814 P.2d 652 (1991) (Utter, J., concurring). Our cases have consistently recognized that [179 Wn.2d 776] the text and aims of article I, section 12 differ from that of the federal equal protection clause. Whereas the Fourteenth Amendment was generally intended to prevent discrimination against disfavored individuals or groups, article I, section 12 was intended to prevent favoritism and special treatment for a few, to the disadvantage of others. See Smith, 117 Wn.2d at 283 (Utter, J., concurring).
¶ 11 Despite the historical and textual differences, Washington courts often construed article I, section 12 consistent with
the federal equal protection clause for most of the latter half of the previous century. In 2002, however, we recognized some distinctions and, applying the Gunwall  factors, concluded that article I, section 12, can, in certain circumstances, support an analysis independent of that of the Fourteenth Amendment. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 83 P.3d 419 (2004) ( Grant II). Under that approach, we embraced a two-step analysis. The first step is to analyze whether the law in question involves a privilege or immunity. If there is no privilege or immunity involved, then article I, section 12 is not implicated. Grant II, 150 Wn.2d at 812.  If, on the other hand, the law involves a privilege or immunity, the second step in the analysis asks whether the legislature had a " reasonable ground" for granting the privilege or immunity. See Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 731, 42 P.3d 394 (2002) ( Grant I). 
[179 Wn.2d 777] ¶ 12 Before beginning this analysis, it is important to recognize the breadth of the claim presented. Although much of the argument focuses on this claim against this hospital, the issue is far more significant and broader given the certified questions. We are asked to declare as unconstitutional the exemption for all religious nonprofits, which extends to not only this case, but all other employers covered by the exemption, including universities, elementary schools, Catholic Community Services, Jewish Family Services, CRISTA Ministries, YMCA, YWCA, Salvation Army, and St. Vincent De Paul. Arguably, churches, synagogues, and mosques would be exposed as well. We further note that since enacted in 1949, the legislature has not revised this exemption to limit its scope. With that said, we turn to whether the definition of " employer" in RCW 49.60.040(11) involves a privilege or immunity.
i. Does RCW 49.60.040(11) grant a privilege or immunity?
¶ 13 Ockletree argues that under the dictionary definition of " privilege," " the right to work free from discrimination is a privilege of citizenship" and that the legislature grants this " privilege" on unequal terms. Corrected Pl.'s Reply Br. at 14. He further argues that the legislature grants religious employers " 'immunity' from the antidiscrimination laws applicable to other employers and, thus, grants them a 'privilege' to discriminate against employees" without civil liability. Pl.'s Opening Br. at 28. FHS counters that the dictionary definition of " privilege" is not coextensive with the meaning we give that term in the context of article I, section 12, and that the definition of " employer" in RCW 49.60.040(11) does not involve a privilege or immunity for purposes of that section.
¶ 14 [179 Wn.2d 778] As FHS correctly observes, in a constitutional sense a privilege has been more narrowly construed than the arguments advanced by Ockletree. In defining the scope of a privilege, we have emphasized that " not every statute authorizing a particular class to do or obtain something involves a 'privilege' subject to article I, section 12." Grant II, 150 Wn.2d at 812. 
Rather, in early cases, we clarified that the term " privileges and immunities" refers " alone to those fundamental rights which belong to the citizens of [Washington] by reason of such citizenship." State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902). Accordingly we have held that not every legislative classification constitutes a " privilege" within the meaning of article I, section 12 but only those where it is, " in its very nature, such a fundamental right of a citizen that it may be said to come within the prohibition of the constitution, or to have been had in mind by the framers of that organic law." Vance, 29 Wn. at 458-59. As we said in Vance,
[a] statute can be declared unconstitutional only where specific restrictions upon the power of the legislature can be pointed out, and the case shown to come within them, and not upon any general theory that the statute conflicts with a spirit supposed to pervade the constitution, but not expressed in words.
Vance, 29 Wn. at 459 (citing Smith v. City of Seattle, 25 Wash. 300, 65 P. 612 (1901)). Generally, rights left to the discretion of the legislature have not been considered fundamental. Grant II, 150 Wn.2d at 814.
¶ 15 Ockletree asks us to embrace a broader meaning of " privilege or immunity" for purposes of article I, section 12 to mean any exemption in derogation of common right. Pl.'s Opening Br. at 28 n.14. However, accepting Ockletree's [179 Wn.2d 779] broad definition not only would be inconsistent with our article I, section 12 jurisprudence but could also produce harmful consequences. Accepting Ockletree's definition means recognizing a privilege anytime a statute grants a right to some but not others. In other words, many legislative decisions could be claimed as privileges. As a result, we could be called upon to second-guess the distinctions drawn by the legislature for policy reasons nearly every time it enacts a statute. For example, the property tax exemptions for citizens " [s]ixty-one years of age or older" and " veterans with one hundred percent service-connected disabilities" could be challenged as unconstitutional grants of special privileges to certain classes of citizens but not others. RCW 84.36.381(3)(a)(i), .379. Similarly, exemptions from emission control inspections for " [f]arm vehicles," " [s]treet rod vehicles," " [h]ybrid motor vehicles," and " [c]lasses of motor vehicles exempted by the director of the department of ecology," among others, would all be subject to challenge under article I, section 12. RCW 46.16A.060(2)(e), (f), (i), (h). We therefore reject Ockletree's invitation to broaden the meaning of the word " privilege" for purposes of article I, section 12 and reiterate that a privilege in this context is limited to those fundamental rights of citizenship.
¶ 16 Ockletree's argument seems to be that a cause of action for discrimination by a private actor in a private employment setting is a fundamental right of citizenship. However, Ockletree's assertion has no support in our jurisprudence or in any other state or federal court. As amici Religious Organizations notes, absent state action, courts have uniformly declined to prohibit employment discrimination on constitutional grounds. See Moran v. GTECH Corp., 989 F.Supp. 84, 93 (D.R.I. 1997); Am. Nat'l Ins. Co. v. Fair Emp't & Hous. Comm'n, 32 Cal.3d 603, 619, 651 P.2d 1151, 186 Cal.Rptr. 345 (1982) (Mosk, J., dissenting); Ky. Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981). Because discrimination in private employment cannot " be said to come within the prohibition of the [179 Wn.2d 780] constitution," it is not a fundamental right. Rather, protection from discrimination in private employment is a creature of statutory enactment. Notably, WLAD was not enacted until 1949, over half a century after the adoption of our constitution. And the private cause of action under the statute was not created until 1973. Laws of 1973, ch. 141. Moreover, the ...