Griffin v. Eller

Decision Date14 October 1996
Docket NumberNo. 62540-9,62540-9
Citation130 Wn.2d 58,922 P.2d 788
CourtWashington Supreme Court
Parties, 76 Fair Empl.Prac.Cas. (BNA) 781 Sharon GRIFFIN, Appellant, v. Carson F. ELLER, Respondent.

Deborra E. Garrett, Bellingham, Jeffrey L. Needle, Seattle on behalf of Washington Employment Lawyers Association and Patricia S. Rose, Seattle, on behalf of Northwest Women's Law Center, for amicus curiae.

Marilyn J. Endriss, Kirstin S. Dodge and Law Offices of Marilyn J. Endriss, Seattle, for appellant.

Davies Pearson, Peter T. Petrich, Tacoma, Katherine E. Blaine, Eastsound, for respondent.

SANDERS, Justice.

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 ("[p]laintiffs ... 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, 807 P.2d 830 (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) ("[a]s 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....

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