Hanson v. Hutt

• Decision Date: 20 December 1973
• Docket Number: No. 42826,42826
• Citation: 83 Wn.2d 195,517 P.2d 599
• Parties: Linda M. HANSON et al., Respondents, v. R. W. HUTT, Acting Commissioner of the Department of Employment Security, Appellant.
• Court: Washington Supreme Court

Page 195

83 Wn.2d 195

517 P.2d 599

Linda M. HANSON et al., Respondents, v. R. W. HUTT, Acting Commissioner of the Department of

Employment Security, Appellant.

No. 42826.

Supreme Court of Washington, En Banc.

Dec. 20, 1973.

As Corrected Jan. 17, 1974.

Slade Gorton, Atty. Gen., Joseph M. Littlemore, Alan R. Krebs, Olympia, for appellant.

Stephen M. Randels, Peterson, Bracelin, Creech & Young, Ms. Christopher Young, Seattle, for respondents.

STAFFORD, Associate Justice.

During 1970 and 1971 respondents filed applications for unemployment insurance benefits. Each was found to be eligible and began receiving payments. Later, each woman became pregnant and either was denied further benefits under RCW 50.20.030 ¹ or was assessed for alleged overpayments pursuant to RCW 50.20.190, 50.20.070.

In August 1971, respondent Hanson commenced a class action in the Superior Court for King County challenging the constitutionality of the proviso of RCW 50.20.030. She was, however, directed to exhaust her administrative remedies first. The cases of all respondents were consolidated for hearing before the appeals tribunal of the Department of Employment Security (hereafter Department). The decision of the appeals tribunal, as amended by the Department's Commissioner (appellant herein), denied benefits to all respondents pursuant to RCW 50.20.030. Respondents appealed to the Superior Court for King County pursuant to RCW 34.04.130 and 50.32.120. At each stage they reiterated their request for class relief.

The trial court held that RCW 50.20.030 violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the Privileges and Immunities Clause of the Washington State Constitution. As a result, it reversed appellant's decision denying respondents' claims for benefits as well as those assessing overpayments against certain of the respondents pursuant to RCW 50.20.190 and 50.20.070. Further, the court ordered that class relief be granted to all women similarly situated if the Department finds that they would have been eligible but for the disqualification contained in RCW 50.20.030. Finally, the trial court concluded it was unnecessary to determine whether the challenged statute violates the Equal Rights Amendment (article 31 of the state constitution).

Although appellant has made numerous assignments of error, they are concerned with two central issues: (1) the constitutionality of RCW 50.20.030, and (2) the granting of class relief.

Initially, it must be noted that appellant has not assigned error to the trial court's refusal to rule on the impact of the Equal Rights Amendment on RCW 50.20.030. Further, respondents have not cross-appealed. Therefore, we shall not consider this issue. ROA I--43.

I. CONSTITUTIONALITY OF RCW 50.20.030

First, it is necessary to determine whether RCW 50.20.030 discriminates on the basis of sex. Appellant argues that a classification based on pregnancy does not constitute sex discrimination. Although the cases cited by appellant appear to conclude that such a classification is neither an Unreasonable nor an Invidious discrimination based on sex, they have avoided the underlying question: I.e., whether it is in fact discriminatory.

While it is oversimplistic, it is true that only women become pregnant. It is equally clear that only women must remain barren to be eligible for and to receive unemployment compensation. This requirement of RCW 50.20.030 not only applies to only one sex but places a heavier burden upon women who seek unemployment benefits. We hold that the statute discriminates against women on the basis of sex. See Cerra v. East Stroudsburg Area Sch. Dist., 450 Pa. 207, 299 A.2d 277 (1973); LaFleur v. Cleveland Bd. of Educ., 465 F.2d 1184 (6th Cir. 1972); Buckley v. Coyle Pub. Sch. Sys., 476 F.2d 92 (10th Cir. 1973); Heath v. Westerville Bd. of Educ., 345 F.Supp. 501 (S.D.Ohio 1972).

Having concluded that RCW 50.20.030 is discriminatory on the basis of sex, we must next determine the standard by which to measure it. Appellant contends that "if any state of facts reasonably may be conceived to justify it" the statute should be upheld, citing Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), and Caughey v. Employment Sec. Dept., 81 Wash.2d 597, 503 P.2d 460 (1972). We do not agree that the foregoing rule is applicable here.

Within the framework of the Equal Protection Clause of the Fourteenth Amendment, both federal and state courts have begun to give more careful scrutiny to legislative attempts at sexual discrimination. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); See also Mollere v. Southeastern La. College, 304 F.Supp. 826 (E.D.La.1969); Gates v. Foley, 247 So.2d 40 (Fla.1971). In Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 18--20, 95 Cal.Rptr. 329, 340, 485 P.2d 529, 540 (1971), the California Supreme Court declared sex to be a suspect classification.

An analysis of classifications which the Supreme Court has previously designated as suspect reveals why sex is properly placed among them. . . .

Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society. . . . The result is that the whole class is relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members. . . . Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.

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Laws which disable women from full participation in the political, business and economic arenas are often characterized as 'protective' and beneficial. Those same laws applied to racial or ethnic minorities would readily by recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.

Most recently, the United States Supreme Court held unconstitutional federal statutes which provided different standards for the recovery of a military dependent's support payments based upon the dependent's sex. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). ²

In Frontiero four justices expressly found that 'classifications based upon sex . . . are inherently suspect, and must therefore be subjected to strict judicial scrutiny.' 411 U.S. at 688, 93 S.Ct. at 1771. They found 'at least implicit support for such an approach' in Reed v. Reed, Supra. Mr. Justice Stewart concurred in the Frontiero judgment, agreeing that the statutes in question worked an invidious discrimination. Three other justices agreed that the statutes constituted an unconstitutional discrimination against service women. They did not feel, however, that it was necessary or proper to hold that classifications based upon sex are inherently suspect. They reasoned that since the Equal Rights Amendment is presently before the various state legislatures for adoption, the Supreme Court should defer categorizing sex classifications as suspect, pending an expression of the will of the people. ³

The Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of the Washington State Constitution are substantially identical in their impact upon state legislation. State v. Perrigoue, 81 Wash.2d 640, 503 P.2d 1063 (1972); In re Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956). With all of the foregoing considerations in mind, we hold that the classification based upon sex, contained in RCW 50.20.030, is inherently suspect and therefore must be subject to strict judicial scrutiny.

Appellant has attempted to justify the statutory classification by asserting that pregnant women are not genuinely attached to the labor market. To the contrary, however, all five doctors who testified at the Commissioner's hearing concluded that 90 percent of pregnant women do not suffer from medical conditions that would impair their ability to continue working in their normal occupation. They also testified that most women can return to their jobs between 5 days and 4 weeks after delivery, the exact time depending on the individual woman. There is ample evidence to support the trial court's finding that pregnant women are attached to the labor market and that there is no medical basis in fact for their disqualification.

Appellant argues that employers are reluctant to hire women in the latter stages of pregnancy. However, the attitude of potential employers is not an appropriate rationale to use as a basis for disqualifying a class of claimant for unemployment insurance. RCW 50.20.010 sets forth the conditions a claimant must meet to be eligible for unemployment compensation. None refers to employer attitude. Rather, a claimant must show that

he is able to work, and is available for work in any trade, occupation, profession, or business for which he is reasonably fitted. To be available for work an individual must be ready, able, and willing, immediately to accept any suitable work which may be offered to him and must be actively seeking work pursuant to customary trade practices and through other methods when so directed by the commissioner or his agents;

RCW 50.20.010(3).

Next, appellant urges that pregnant women cause or contribute to their own unemployment by the voluntary act of becoming pregnant. Assuming arguendo that pregnancy is voluntary, this does not mean that unemployment resulting therefrom is necessarily voluntary. While a woman may wish to become pregnant, she may not, and often does not, wish to become...