Payne v. Children's Home Soc. of Washington, Inc.
| Decision Date | 13 April 1995 |
| Docket Number | No. 13584-5-III,13584-5-III |
| Citation | 892 P.2d 1102,77 Wn.App. 507 |
| Court | Washington Court of Appeals |
| Parties | , 68 Fair Empl.Prac.Cas. (BNA) 1196 Patricia N. PAYNE, Appellant, v. CHILDREN'S HOME SOCIETY OF WASHINGTON, INC., Respondent. |
David H. Putney, Putney, Mazzola Law Offices, Yakima, for appellant.
Otto G. Klein III, Carole Rafferty, Heller, Ehrman, White, Seattle, for respondent.
Rosemary Daszkiewica, Seattle, for amicus curiae.
Patricia Payne appeals the summary judgment dismissal of her hostile work environment sexual harassment lawsuit against Children's Home Society of Washington, Inc., her former employer. Her lawsuit was brought under RCW 49.60.180(3) which makes it an unfair practice for any employer to "discriminate against any person in compensation or in other terms or conditions of employment because of [such person's] ... sex ...". We affirm.
Ms. Payne was employed as a secretary by Children's. Approximately 1 1/2 years after she was hired, Children's created a position called Director of Services. Arthur Tirotta was hired for that position. As Director of Services, Mr. Tirotta was Ms. Payne's supervisor.
After a period of time, Ms. Payne said she felt Mr. Tirotta's conduct became abusive. She terminated her employment and commenced this lawsuit. In depositions, she described the offending conduct as follows:
When he would talk, if he were the least bit upset he would begin to get red in the face. He would pace back and forth on the floor, use a tone of voice that was very demeaning and degrading....
....
... [Mr. Tirotta] was so unsure most of the time of what he needed and what he wanted and when he needed it....
His means of dealing with most women in the office were a means of anger, outbursts. It was like you should have known what he needed and wanted before he did.
In opposing summary judgment, Ms. Payne did not submit affidavits or deposition testimony by other employees. Descriptions of Mr. Tirotta's conduct toward her and others was limited to her own deposition testimony. She stated:
[Mr. Tirotta] had communications problems with Peggy [Haskin], with Evelyn Chavez, Diana Houke ... run-ins with Barbara McKenzie. They had their differences. Pepper [Irwin ... Bob Reno]. Those are only some.
....
He didn't appear to have that problem with Vince. He didn't appear to have that problem with Dan. It was mostly women that he had the communication problems with.
....
....
....
The trial court granted summary judgment to Children's on the basis Ms. Payne produced no evidence to show the conduct complained of occurred because of gender and because the conduct complained of did not constitute sexual harassment as a matter of law.
Ms. Payne contends the sole issue on appeal is a question of law. That question is, does a sexual harassment hostile work environment claim under RCW 49.60.180 exist if the conduct complained of is not explicitly sexual, but is gender based?
While we do not agree with Ms. Payne's contention that the sole question is the one she has framed, for reasons explained below, we agree that conduct does not have to be sexual in nature to constitute a violation of RCW 49.60.180(3). Indeed, Children's conceded this point during oral argument.
RCW 49.60.180(3) prohibits an employer from discriminating in "terms or conditions of employment because of [such person's] ... sex ...". It does not suggest any requirement that discriminatory conduct involve sexual advances, innuendo, or physical contact to be actionable. Although no reported case in Washington has addressed the precise issue presented, our holding is supported by the language of the statute and the liberal construction it must be given. 1 It also flows logically from existing Washington opinions and is in accord with the holdings of numerous courts interpreting federal discrimination law.
Where a hostile work environment is created by sexual harassment and such harassment becomes a condition of employment, Washington courts have consistently held the harassment actionable under RCW 49.60.180(3). 2 See, e.g., Glasgow v. Georgia-Pacific, 103 Wash.2d 401, 693 P.2d 708 (1985); Coville v. Cobarc Servs., Inc., 73 Wash.App. 433, 869 P.2d 1103 (1994); Thompson v. Berta Enters., Inc., 72 Wash.App. 531, 864 P.2d 983, review denied, 124 Wash.2d 1028, 883 P.2d 327 (1994); Delahunty v. Cahoon, 66 Wash.App. 829, 835-36, 832 P.2d 1378 (1992); Fisher v. Tacoma Sch. Dist. 10, 53 Wash.App. 591, 769 P.2d 318, review denied, 112 Wash.2d 1027 (1989); Henderson v. Pennwalt Corp., 41 Wash.App. 547, 704 P.2d 1256 (1985). As stated in Glasgow, at 405, 693 P.2d 708, "[s]exual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace."
When gender-based harassment is not of a sexual nature, but is a term or condition of employment, it too unfairly handicaps the employee against whom it is directed and creates a barrier to sexual equality in the workplace. Cf. Glasgow, at 405, 693 P.2d 708. A court-imposed requirement that the conduct be explicitly sexual to be actionable would be contrary to the purpose of RCW 49.60.
As noted by amicus curiae and the parties, several federal courts have addressed the question of whether Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) requires offending conduct to be overtly sexual to be actionable. Since Title VII prohibits discrimination in "terms, conditions, or privileges of employment ...", such cases are persuasive when construing RCW 49.60.180(3). See Fahn v. Cowlitz Cy., 93 Wash.2d 368, 376, 610 P.2d 857 (1980) (). See also Glasgow, at 406 n. 2, 693 P.2d 708; WAC 162-30-010. 3
A growing number of federal courts hold that harassment does not have to be sexual in nature to establish a discriminatory hostile or abusive work environment claim. See Andrews v. Philadelphia, 895 F.2d 1469, 1485 (3d Cir.1990) (); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.1988) (); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987) (); Campbell v. Kansas State Univ., 780 F.Supp. 755 (D.Kan.1991) (); Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1522 (M.D.Fla.1991) ().
Given the language of RCW 49.60.180(3), the underlying purpose of RCW 49.60, and the state and federal decisions cited above, gender-based harassment need not be of a sexual nature to be actionable as sex discrimination under RCW 49.60.180(3). It is actionable if the employee proves the elements set forth in Glasgow. 4 That is, the harassment must (1) be unwelcome, (2) occur because of sex, (3) affect the terms or conditions of employment, and (4) be imputed to the employer. Glasgow, at 406-07, 693 P.2d 708.
We turn next to Children's contention the conduct Ms. Payne complained of was in the nature of a personality conflict which does not constitute harassment as a matter of law. To constitute harassment under RCW 49.60, Children's contends the conduct must meet the definition of harassment in RCW 9A.46.020(1). 5
We reject Children's contention. Conduct is harassing when it is "unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive." Glasgow, at 406, 693 P.2d 708. The employee need not fear bodily injury. Teague Motor Co. v. Federated Serv. Ins. Co., 73 Wash.App. 479, 869 P.2d 1130 (1994), cited by Children's, does not hold to the contrary. The issue in that case was the meaning of harassment for purposes of interpreting coverage under an insurance policy provision defining personal injury as embarrassment, humiliation or mental anguish arising out of any type of harassment. Teague, at 481, 869 P.2d 1130. Teague determined that coverage was not restricted to sexual harassment; it included any form of harassment as defined in RCW 9A.46.020(1). Teague does not hold that the criminal definition of harassment found in RCW 9A.46 should define sexual harassment under RCW 49.60. Because the statutes have entirely different purposes, the definitions are not interchangeable.
Children's also contends Ms. Payne failed to establish a prima facie case of hostile work environment sex discrimination because she provided no evidence...
To continue reading
Request your trial
-
Robel v. Roundup Corp.
...work environment' claims." DeWater v. State, 130 Wash.2d 128, 134-35, 921 P.2d 1059 (1996) (quoting Payne v. Children's Home Soc'y of Wash., Inc., 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102, review denied, 127 Wash.2d 1012, 902 P.2d 164 (1995)). Whether the antidiscrimination statute support......
-
Francom v. Costco Wholesale Corp.
...nightclub shift manager knew of harassment), review denied, 129 Wash.2d 1014, 917 P.2d 575 (1996); Payne v. Children's Home Soc'y of Washington, Inc., 77 Wash.App. 507, 515, 892 P.2d 1102 (in dictum, noting that supervisor who had authority to evaluate, hire, and possibly fire employees may......
-
Kahn v. Salerno
...harassment, which need not be sexual in nature, is actionable as discrimination under this statute. Payne v. Children's Home Socy., 77 Wash.App. 507, 513, 892 P.2d 1102, review denied, 127 Wash.2d 1012, 902 P.2d 164 (1995). Ch. 49.60 RCW provides, in relevant part, as follows: "It is an unf......
-
Henningsen v. Worldcom, Inc.
...state and federal courts. E.g., DeWater v. State, 130 Wash.2d 128, 134, 921 P.2d 1059 (1996) (citing Payne v. Children's Home Soc'y, 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102 (1995)); Davis v. Sioux City, 115 F.3d 1365, 1367 (8th Cir.1997). These categories gained significance as various fe......
-
State regulation of sexual harassment
...nature created a hostile work environment for a victim, per EEOC guidelines. 164 160. 161. See, e.g ., Payne v. Children’s Home Soc’y, 892 P.2d 1102, 1106 (Wash. Ct. App. 1995) (holding that gender-based discrimination need not be of a sexual nature to be actionable). Some of these states r......