Discrimination Law Isn’t For Small Businesses State Supreme Court Ruling Draws Sharp Dissent From Two Justices

Washington residents who work in offices of fewer than eight employees are not protected by the state law barring sex discrimination, the state Supreme Court ruled Thursday.

The 6-2 opinion drew a strong dissent from Justice Phil Talmadge, who wrote: “The majority leaves hundreds of thousands of Washington employees without a statutory remedy to vindicate the civil right to be free of discrimination in employment.”

Justice Gerry Alexander joined in the dissent.

The case stems from an appeal filed by legal secretary Sharon Griffin against Carson F. Eller. She alleged in a Pierce County Superior Court lawsuit that she was fired in 1991 as retaliation for objecting to “a hostile work environment” in which Eller, an attorney, made “crude remarks of a sexual nature to and about her in spite of her objections.”

Ultimately, she won a $50,000 court award on grounds of “outrage and negligent infliction of emotional distress,” but the lower court dismissed her claim of sex discrimination.

The majority, which included the court’s two female members, Chief Justice Barbara Durham and Justice Barbara Madsen, sided with the lower court, saying the law clearly limits such suits to workers in offices of eight or more workers.

The statute defines an employer as “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons…”

The majority opinion, written by Justice Richard Sanders, said there was no legislative history to suggest the law, which has evolved since its initial passage in 1949, “was to permit a statutory cause of action against small, otherwise exempt employers.”

“The Legislature may have had many reasons to adopt the small employer exemption,” Sanders wrote. “The Legislature could well have concluded burdening so many employers to benefit so few employees was not, on balance, of sufficient public benefit to offset the burden.”

Talmadge, however, wrote that the majority misconstrued the statute, seizing on one provision while missing the law’s broad mandate against discrimination against all workers.

Moreover, he wrote, “the majority’s interpretation ignores the common law rule ‘ubi jus, ibi remedium’ - where there is a wrong, there is a remedy.”

Talmadge said the facts of the case were so compelling as to demand a broader interpretation of the law.

The high court also ruled:

In a unanimous opinion, that the state is not liable for discriminatory acts of a foster parent toward a worker hired and supervised by the foster parent but paid by the state. The case stemmed from a suit filed by Thelma J. DeWater against the state and foster parent John Troyer of Spokane, contending Troyer had sexually harassed her.