Attorney-Owner at Williams Law Group
Admissions: U.S. Supreme Court; U.S. Court of Federal Claims; U.S. District Court Western Dist of WA; all WA State Courts.
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THE WASHINGTON LAW AGAINST DISCRIMINATION
I believe that supervisors, along with their employers, can be held liable for their discriminatory acts. As an initial matter, the Washington Law Against Discrimination (WLAD) expressly mandates liberal construction of its provisions in order to accomplish the broad purposes of the law. Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 357, 20 P.3d 921 (2001) (citing RCW 49.60.020). Therefore, Washington courts view with caution any construction that would narrow the coverage of the law. Id. (citing Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996)) (internal quotations omitted).
In Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 20 P.3d 921 (2001), the Washington State Supreme Court consolidated two separate conflicting appeals containing one common and one separate issue. This article will only address the common issue: whether a supervisor who discriminates against an employee can be held individually liable under Washington’s Law Against Discrimination, chapter 49.60 RCW? Id. The first of the two consolidated appeals was Brown v. Scott Paper World Wide Company (hereinafter, “Scott Paper”); and the second was Raymond v. Pacific Chemical (hereinafter, “Raymond”). Id.
BROWN v. SCOTT PAPER WORLD WIDE COMPANY
In Scott Paper, a female paper mill employee was promoted to both the highest union position in the mill and the lead position on the paper machine. Id. at 354-55. However, she endured years of sexual harassment at work where she was shunned by coworkers, was the victim of pranks, and was referred to in derogatory, sexist terms such as “boobs” and “beaver” Brown. Id. (quotation marks omitted). Subsequently, her human resources manager temporarily disqualified her from advancement pursuant to questionable reasons, and this was the first time the company had disqualified anyone under similar circumstances. Id.
Eventually, she was suspended for kicking a coworker, and the employer conditioned her return upon acknowledgement and development of a plan meeting certain criteria; but when her medical provider proposed a plan, the employer rejected it. However, she was eventually returned to her original position by arbitrator decision after she filed a grievance. Id.
Nevertheless, the employee subsequently filed suit in superior court for sexual harassment and discrimination based on sex and disability; and she included the employer and six of its supervisors (Supervisors) as defendants. However, upon the Supervisors’ motion, the trial court dismissed the claims against them ruling that they were not “employers“ under RCW 49.60; but the Court of Appeals reversed.
RAYMOND v. PACIFIC CHEMICAL
In Raymond, the employer both recalculated an employee’s compensation and reassigned the employee after he had worked for the employer as a sales representative for four years; the employee believed that this resulted in a substantial reduction in his pay. Id. at 356. The employee further asserted that his supervisors picked on him in order to drive him out of the company when he subsequently returned to work from a vacation; and, although the employer supported its actions by citing the employee‘s alleged performance/behavioral issues, it was a scheme to drive him out along with other older salespersons. Id.
Thereafter, the employer terminated the 51-year-old employee for insubordination and replaced him with a younger less experienced employee; and the employer either fired or encouraged three other mature workers to retire early. Id. The employee then sued the employer and several of its supervisors (Supervisors) based on age discrimination. And similar to the case in Scott Paper, upon the Supervisors’ motion the trial court dismissed the claims against them; however, unlike the case in Scott Paper, the Court of Appeals affirmed Raymond. Thus, there was a conflict between Court of Appeals panels on this issue, and the case was appealed to the state supreme court.
WASHINGTON SUPREME COURT: The Scott Paper Case
The Washington State Supreme Court in Scott Paper addressed the issue of whether supervisors can be individually liable for employment discrimination by, inter alia: (1) analyzing the plain language of the statute; (2) distinguishing the State and Federal definitions of “employer” under the respective discrimination laws; and (3) applying the legislative intent of RCW 49.60.220.
1. PLAIN LANGUAGE OF THE STATUTE
Washington State courts interpret chapter 49.60 RCW by first analyzing the plain language of the statute. See Brown v. Scott Paper Worldwide Co., 143 at 357 (citing Martini v. Boeing Co., 137 Wash.2d 357, 365, 971 P.2d 45 (1999)). In this case, the Scott Paper Court focused on the definition of the term “employer.” WLAD defines “employer” as “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.” Id. (citing RCW 49.60.040). However, according to the definition, the term “employer” can be interpreted as either of the following:
a. Any person acting in the interest of an employer
b. Any person…who employs eight or more persons
Accordingly, plaintiff-employees suing defendant-supervisors/managers under WLAD could argue interpretation to hold them liable while defendant-supervisors/managers could argue interpretation to escape liability.
The Supreme Court then explained that although the Court of Appeals panels in Scott Paper and Raymond recognized that the statute’s grammatical structure was subject to different interpretations; they disagreed as to the correct reading. Id. at 357-58. Consequently, the Supreme Court found that the definition under RCW 49.60.040, by its very terms, contemplates individual supervisor liability; and a supervisor acting in the interest of an employer who employs eight or more people can be held individually liable for his or her discriminatory acts. Id. at 358.
2. STATE AND FEDERAL STATUTES DEFINE EMPLOYER DIFFERENTLY
Next, the Supreme Court in Scott Paper firmly put an end to any attempts by supervisors/managers to argue that the narrower Federal definition of “employer” should also be used under the Washington Law Against Discrimination. The Court found significant grammatical and statutory construction differences to the extent that Federal case law was useless to its analysis.
Under Title VII of the Civil Rights Act of 1964, the definition of “employer” is as follows:
“[E]mployer” means a person engaged in an industry affecting commerce who has fifteen or more employees … and any agent of such a person.”
Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Civil Rights Act of 1964, 42 U.S.C. § 2000e(b)). Whereas the definition of “employer” under WLAD is as follows:
“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.
Chapter 49.60.040 RCW. Grammatically, the Court found that the two definitions were significantly different and the Federal definition was essentially unavailing. Id. at 359.
Moreover, the Court found substantial differences in statutory construction between the State and Federal definition – reasoning that the definition under RCW 49.60.040 contains the word “includes,” which is a term of enlargement; while, in contrast, title VII uses the word “means,” which is a term of limitation. Brown v. Scott Paper Worldwide Co., 143 at 358-59 (citing Queets Band of Indians v. State, 102 Wash.2d 1, 4, 682 P.2d 909 (1984) (citing 2A Norman J. Singer, Statutes and Statutory Construction § 47.07, at 82 (4th ed.1973))) (quotation marks omitted).
3. LEGISLATIVE INTENT
Lastly, the Supreme Court in Scott Paper considered the policy behind Washington Law Against Discrimination and found that the legislative intent to hold supervisors individually liable for acts of employment discrimination is evidenced by chapter 49.60 RCW’s clear mandate to eliminate all forms of discrimination. Brown v. Scott Paper Worldwide Co., 143 at 359-60 (citing RCW 49.60.010) (quotation marks omitted).
In fact, the Supreme Court suggested that there are two policies for supervisor-manager liability under Washington Law Against Discrimination: (1) “Aiding and Abetting” under RCW 49.60.220; and (2) the Definition of “Employer” under RCW 49.60.040.
Particularly, the Court found that the Legislature’s intent to hold supervisors personally liable is manifested in RCW 49.60.220; and the inclusion of this provision establishes that the Legislature intended to reach individual wrongdoers in the workplace, not just the employers themselves. Brown, 143 at 360 (quotation marks omitted). The relevant law states as follows:
Unfair practice to aid violation.
It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.
Moreover, the Supreme Court suggested the second policy for supervisor-manager liability under the Washington Law Against Discrimination definition of “employer” when it reasoned, in accord with the Court of Appeals panel in Scott Paper, that “[I]t would be a strained construction to hold supervisors personally accountable for their acts when they aid another in discrimination but not accountable when their own actions are directly discriminatory.” Brown, 143 at 360-61 (internal citation omitted).