Roberts v. Dudley , 140 Wash. 2d 58 ( 2000 )

Sanders, J.

The question is whether an employee who lacks a statutory remedy for wrongful discrimination may nevertheless assert the common law tort of wrongful discharge. The answer is the employee may, if public policy renders such termination “wrongful.”

The trial court dismissed such a claim on summary judgment whereas the Court of Appeals reversed, reinstating the claim. We affirm the Court of Appeals and remand for trial, finding multiple bases in the public policy of this state upon which the tort of wrongful, gender-based discharge may be based.

I

FACTS

An appeal from an order of summary judgment requires us to view the facts of record in the light most favorable to the nonmoving party. CR 56(c); Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800, 801, 699 P.2d 217 (1985). Because the employer (Dudley) brought the motion for summary judgment, we must therefore view the record in the light most favorable to the employee (Roberts).

Lynne Roberts began working at the North End Veterinary Clinic on December 4, 1972 and still worked there in July 1991 when Eric Dudley, D.V.M., purchased and continued operating the clinic. It is undisputed that at all relevant times Dudley never employed eight or more employees at the clinic.

On February 1, 1993 Roberts commenced unpaid maternity leave. On May 1, 1993 Dudley discharged Roberts, claiming her position was no longer available due to a business slowdown. Dudley readvertised the position in May 1994 but when Roberts applied she was refused reemployment. Roberts claims the reason given for her discharge (economic slowdown) was pretextual whereas the real reason for her discharge was that she was pregnant.

Roberts sued Dudley for gender discrimination, initially stating a cause of action under RCW 49.60, but subsequently amended her complaint to state a claim for common law wrongful discharge in violation of the public policy against sex discrimination.

Dudley moved for partial summary judgment to dismiss the wrongful discharge claim. He argued Roberts had no cause of action under state law even if she were discharged because of her gender because Dudley was a small employer, employing fewer than eight persons. The trial court agreed and granted Dudley’s motion for partial summary judgment, dismissing the wrongful discharge claim. We denied direct review, transferring the case to the Court of Appeals.

The Court of Appeals reversed the trial court, finding a clear public policy against discrimination, holding a common law cause of action exists for wrongful discharge when the discharge violates the public policy against discrimination. Roberts v. Dudley, 92 Wn. App. 652, 659-60, 966 P.2d 377 (1998). We then granted review.

Dudley relies heavily on this court’s decision in Griffin v. Eller, 130 Wn.2d 58, 922 P.2d 788 (1996), arguing Griffin recognized a public policy to protect small employers from discrimination suits, precluding the possibility of a common law cause of action for employment discrimination. Dudley further argues the public policy exception to the employment at-will doctrine should be applied narrowly and cautiously, citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984) and subsequent cases, asserting a common law cause of action for wrongful discharge based on gender discrimination is inconsistent with those cases. Additionally he argues neither the Equal Rights Amendment, Wash. Const. art. XXXI, § 1 (amend. 61), nor RCW 49.12.200 creates a source of public policy against discrimination, as neither is directed at private employment. The Washington Defense Trial Lawyers and the Independent Business Association¹ each submitted amicus curiae briefs in support of Dudley.

Roberts argues there is nothing in Griffin, 130 Wn.2d 58, inconsistent with a common law cause of action for wrongful discharge in violation of a clear public policy against sex discrimination because Griffin did not decide that issue but rather involved a statutory claim under RCW 49.60. Roberts further argues RCW 49.12.200, the Law Against Discrimination (RCW 49.60), and the Equal Rights Amendment² all evidence a clear public policy against sex discrimination in employment. Roberts relies on Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990), and Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 913 P.2d 377 (1996), to support her claim that there is a common law cause of action for wrongful discharge in violation of the public policy against discrimination. Amicus American Civil Liberties Union of Washington³ agrees with Roberts, as does the Washington State Trial Lawyers Association which filed an amicus curiae brief arguing this court need look only to the Equal Rights Amendment, to find a clear public policy against discrimination.

II

ANALYSIS

A. Common Law Wrongful Discharge

An indefinite employment contract is generally terminable at will. Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 894, 568 P.2d 764 (1977). However in Thompson, 102 Wn.2d 219, we recognized an exception to the at-will rule in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes “a clear mandate of public policy.” Id. at 232. The “public policy” for which we search is an authoritative public declaration of the nature of the wrong.

In Thompson we were careful to limit the wrongful discharge cause of action to situations where a public policy was already clearly expressed in the constitution, a statute, or a prior court decision:

“In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy. However, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.”

Id. (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982)). As we noted in Thompson, “to state a cause of action, the employee must plead and prove that a stated public policy, either legislatively or judicially recognized, may have been contravened.” Thompson, 102 Wn.2d at 232. Any finding of public policy must therefore be clearly grounded in legislation or prior jurisprudence to protect employers from frivolous lawsuits, thus balancing the interests of the employer and the employee. Id.

We elaborated on the meaning of a clearly mandated pub-lie policy in Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989), stating:

“In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. . . . Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.”

Id. at 618 (quoting Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878-79, 52 Ill. Dec. 13 (1981)).

Gardner, 128 Wn.2d 931, involved a common law claim for wrongful discharge following the termination of an armored truck driver who left his truck in violation of company policy to rescue a hostage at a bank robbery. Although we found the “situation presented by this case does not fit neatly into . . . the categories of [public policy tort] cases previously considered by this court,”⁴ id. at 938, we nevertheless found the truck driver had a cause of action for wrongful discharge based on the public policy in favor of protecting human fife. Id. at 944-46. We there identified four necessary elements upon which a common law claim for wrongful discharge in violation of public policy must be heard:

(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).

(2) The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element). .

(3) The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).

(4) The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).

Id. at 941 (citations omitted). The first element (determining what is a clear mandate of public policy) is a question of law, Dicomes, 113 Wn.2d at 617, and it is this element of the four-part test which is at issue here.

Dudley argues the Court of Appeals decision on review conflicts with Thompson and its progeny, asserting those cases apply the public policy exception to the at-will rule very narrowly. However the rule announced by the Thompson line of cases is that a court may not sua sponte manufacture public policy but rather must rely on that public policy previously manifested in the constitution, a statute, or a prior court decision.⁵ Thompson, 102 Wn.2d at 232; Dicomes, 113 Wn.2d at 617; Gardner, 128 Wn.2d at 936-37. Thus in Roe v. Quality Transportation Services, 67 Wn. App. 604, 838 P.2d 128 (1992), the Court of Appeals found there was no clear mandate of public policy pertaining to employee drug testing because there was no statute demonstrating such a public policy. Id. at 609-10 (“The Legislature has enacted many statutes specifically regulating employer-employee relationships. The fact that the Legislature has not enacted a statute regulating drug testing by private employers is significant.” (Citation omitted.)).

However if a public policy against discriminatory discharge for reasons of gender may be found in the constitution, a statute, or a prior decision of this court, Dudley’s argument fails because it is contrary to Thompson.⁶

B. Public Policy Against Sex Discrimination

In Thompson we required a public policy basis for the tort of wrongful discharge to be grounded in the constitution, a statute, or a prior court decision. Roberts argues a public policy against discrimination may be found in all three of these sources.

1. Judicial basis for public policy against discrimination

In Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996), we stated, “the purpose of the law [against discrimination] is to deter and to eradicate discrimination in Washington” which has been recognized as “a policy of the highest priority.” Id. at 109 (emphasis added). We made further reference to “[t]his state’s strong policy against sex discrimination.” Id. In support of these statements we cited previous decisions, namely Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 309-10, 898 P.2d 284 (1995); Burnside v. Simpson Paper Co., 123 Wn.2d 93, 99, 864 P.2d 937 (1994); and Allison v. Housing Authority, 118 Wn.2d 79, 86, 821 P.2d 34 (1991). Thus in Marquis we affirmed a strong and clear public policy against discrimination. This judicial recognition of the public policy alone fulfills the requirements of Thompson that the policy be clearly based in law. However there are also statutory bases for the policy.

2, Statutory basis for public policy against discrimination

Roberts’ argument focuses on RCW 49.12.200 and RCW 49.60.010 as evidence of a statutory public policy against sex discrimination.⁷

(a) RCW 49.12.200

RCW 49.12.200 is headed, “Women may pursue any calling open to men” and states:

That hereafter in this state every avenue of employment shall be open to women; and any business, vocation, profession and calling followed and pursued by men may be followed and pursued by women, and no person shall be disqualified from engaging in or pursuing any business, vocation, profession, calling or employment or excluded from any premises or place of work or employment on account of sex.

RCW 49.12.200⁸ (emphasis added). This provision expresses a clear policy against discharge from employment because of sex discrimination and contains no exemption for small employers.

Dudley argues RCW 49.12.200 does not provide a public policy basis for the tort of wrongful discharge because it is not directed at private employers. However such is not apparent from the language of the provision which in fact is categorical in its terms, stating “every avenue” of employment shall be open to women and “no person” shall be disqualified from pursuing “any” career because of sex. RCW 49.12.200. Furthermore the context of the provision indicates it is in fact directed at private employers — it is within a chapter entitled, “INDUSTRIAL WELFARE” which deals with conditions of employment in the private sector. Ch. 49.12 RCW RCW 49.12.200 therefore demonstrates a strong public policy against sex discrimination in employment.

Although this statute recognizes a general right to be free of discharge due to sex discrimination, it provides no remedy for the same. Roberts therefore argues the court should imply a remedy for breach of RCW 49.12.200, relying on the Latin maxim ubi jus, ibi remedium (“[w]here there is a right, there is a remedy,” Black’s Law Dictionary 1520 (6th ed. 1990)) and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) in which the Supreme Court stated:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.

Marbury, 5 U.S. at 163. Roberts notes this court has recognized when a “statute [has] provided a right of recovery, it is incumbent upon the court to devise a remedy.” State v. Manuel, 94 Wn.2d 695, 699, 619 P.2d 977 (1980).

RCW 49.12.200 provides strong evidence of the public policy against discharge from employment due to sexual discrimination for which a common law cause of action in tort for wrongful discharge is available.

(b) The law against discrimination, RCW 49.60

A second statutory source of public policy against sex discrimination in employment relied upon by Roberts is the Law Against Discrimination, RCW 49.60. In response Dudley and Amicus Independent Business Association both argue because the Law Against Discrimination explicitly exempts small employers from the statute, it would be illogical to find that statute a source of public policy permitting a common law cause of action for wrongful discharge against such small employers.⁹ But ultimately the small employer exception from statutorily created remedies proves the more general rule of public policy at issue here.¹⁰

But in the section entitled, “Purpose of chapter” the statute provides:

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of . . . sex . . . [is] a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

RCW 49.60.010 (emphasis added). It then goes on to declare the right to be free from discrimination in employment to be a civil right:

The right to be free from discrimination because of. . . sex ... is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination[.]

RCW 49.60.030(1). This statutory declaration clearly condemns employment discrimination as a matter of public policy. Nothing in these provisions suggests small employers are exempt from such a policy; to the contrary, RCW 49.60.010 sets forth a policy that discrimination against any citizens should be eradicated.

Furthermore the “exemption” from the statute for small employers is found neither in the purpose section of the statute, in the section dealing with civil rights, nor even in a provision dealing with statutory exemptions, but in the “Definitions” section which states:

As used in this chapter:

(3) “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). By this section the legislature narrows the statutory remedies but does not narrow the public policy which is broader than the remedy provided. Thus, the statutory remedy is not in itself an expression of the public policy, and the definition of “employer” for the purpose of applying the statutory remedy does not alter or otherwise undo to any degree this state’s public policy against employment discrimination. Cf Dissent at 81. If it is argued that the exclusion of small employers from the statutory remedy is itself a public policy, that policy is simply to limit the statutory remedy, but is not an affirmative policy to “exempt[ ] small employers from [common law] discrimination suits.” Dissent at 81.

The absence of an affirmative policy to exempt small employers from all discrimination suits is, moreover, expressly stated in the statute which specifically mandates it should not be used as a means to har other types of actions for civil rights violations:

Nothing contained in this chapter shall be deemed to repeal any of the provisions of any other law of this state relating to discrimination because of . . . sex . . . Nor shall anything herein contained be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.

RCW 49.60.020. Because the statute elsewhere declares the right to hold employment without discrimination to be a civil right, RCW 49.60.030, this section explicitly provides the statute as a whole should not be construed to deny a plaintiff the right to assert a claim for discriminatory discharge. Yet this is precisely the construction that Dudley urges upon the court. But to hold the definition of “employer” for the purposes of RCW 49.60 prevents a plaintiff from asserting the tort of wrongful discharge based on sexual discrimination would be contrary to the clear mandate in RCW 49.60.020.

Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990) also clarifies that the statutory definition of “employer” does not exclusively limit the policy against discrimination to large employers.

In Bennett the plaintiffs, twin sisters, sued a former employer alleging age discrimination and wrongful discharge. After the discharge of one sister, plaintiffs hired an attorney who informed the employer his discharge of the first plaintiff amounted to age discrimination. Shortly thereafter the employer discharged the second plaintiff. The employer employed fewer than eight employees and therefore was not within the definition of “employer” as set out in the law against discrimination, RCW 49.60. We there recognized an implied cause of action under RCW 49.44.090 which makes age discrimination against an employee between the ages of 40 and 70 an unfair practice. We also held the second plaintiff had established a cause of action for wrongful discharge based on a public policy against retaliation because of her opposition to her employer’s discriminatory practices. Although the Law Against Discrimination was not directly applicable, we nevertheless found that it could form a basis for public policy:

Although RCW 49.60 is not applicable here because the defendants do not fit within that chapter’s employer definition, the statute does indicate the Legislature’s recognition that retaliatory discharge is an unfair employment practice and that seeking legal recourse is a reasonable employee response.

Bennett, 113 Wn.2d at 925. We then explicitly considered whether the small employer exemption under RCW 49.60 should apply to bar either the implied cause of action under RCW 49.44.090 or the tort of wrongful discharge when such causes of action were brought against a small employer, holding

the employer size definition of RCW 49.60.040 does not apply outside chapter 49.60 and so does not operate to bar either of the claims recognized above.

Bennett, 113 Wn.2d at 929. In Bennett we therefore held the definition of “employer” for the purposes of RCW 49.60 did not preclude a common law cause of action for wrongful discharge, and that is our holding today as well. The Law Against Discrimination provides a strong public policy basis for the plaintiff’s claim of wrongful discharge,¹¹ and it certainly does not operate to bar her recovery.¹² We do not construe the statute to discover a statutory remedy — clearly there is not one; rather we read the statute to understand its purpose in policy. Thompson, 102 Wn.2d at 232 (“ ‘In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer’s conduct contravenes the letter or purpose of a . . . statutory . . . scheme.’ ” (quoting Pomar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (1982) (emphasis added)).

C. Griffin v. Eller

Dudley’s primary argument is based on Griffin v. Eller, 130 Wn.2d 58, 922 P.2d 788 (1996), and so we will address the relationship of Griffin to our decision today. Dudley argues Griffin recognized a legitimate public policy to protect small employers from discrimination suits, precluding the possibility of a common law cause of action for employment discrimination.

Griffin involved a legal secretary who was the only full-time employee of a sole-practitioner attorney and who brought suit claiming inter aha sexual harassment in violation of the law against discrimination, RCW 49.60, as well as a separate claim for wrongful termination in violation of public policy. Griffin, 130 Wn.2d at 62. The trial court granted partial summary judgment dismissing the plaintiff’s claims under RCW 49.60, Griffin, 130 Wn.2d at 62, but permitted the claim of wrongful discharge in violation of public policy to go to the jury. Id. at 71 (Madsen, J., concurring). The jury found the plaintiff had not proven the wrongful discharge claim and no appeal was taken on this issue. Id. at 72 (Madsen, J., concurring). However the summary judgment dismissal of the plaintiffs claims under RCW 49.60 was appealed.

The issue in Griffin was therefore whether an employer with fewer than eight employees was exempt from the remedies provided under RCW 49.60 and, if so, whether this violated the privileges and immunities clause of the state constitution, Wash. Const, art. I, § 12. Because the statute defined “employer” as one which employed eight or more, we followed the plain language of this statutory definition, holding an employer with fewer than eight employees was exempt from suit under the provisions of the statute and, further, that the statutory definition of “employer” survived a challenge under the privileges and immunities clause:

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.

Griffin, 130 Wn.2d at 61 (emphasis added). The holding in Griffin was limited to applying and upholding the statutory definition of “employer,” which exempts small employers from suit under RCW 49.60. We simply did not consider the possibility of an action in tort for wrongful discharge in violation of public policy in the Griffin opinion.

Dudley cites at length language in Griffin which he argues demonstrates policy reasons for exempting small employers from discrimination suits, both statutory and common law. Dudley further argues Griffin adopted a balance between the public policy against discrimination and a public policy in favor of protecting small employers from discrimination suits and that the Court of Appeals’ decision in the present case upset that balance.

In Griffin we stated,

[T]he Legislature may well have been advancing legitimate state purposes by conserving limited state resources and protecting small businesses from private litigation expense, in addition to avoiding the regulatory burden inherent in regulation by the Human Rights Commission, per se.

Griffin, 130 Wn.2d at 66-67 (emphasis added). And we noted,

The Legislature may have had many reasons to adopt the small employer exemption in RCW 49.60. Certainly the State has a substantial interest in the well-being of small business with regard to the state economy, tax base, and opportunities for employment. . . . 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.

Griffin, 130 Wn.2d at 68 (emphasis added). However the context of these statements was the availability of an enhanced statutory remedy, not the existence of a common law cause of action. Griffin held RCW 49.60.040(3)’s narrow definition of “employer” survived an equal protection challenge under article I, section 12, of the Washington Constitution to which we applied the rational basis test as the appropriate standard of review. Griffin, 130 Wn.2d at 65. The statements in Griffin regarding possible reasons for the small employer exemption to RCW 49.60 were therefore made in the context of conducting a rational basis review. We did not purport to affirmatively state the public policy reasons behind the small employer exemption— rather we merely reasoned there could be a rational basis to satisfy the applicable standard of review. Therefore, although Griffin does uphold the statutory “exemption” for small employers to suits brought under RCW 49.60, Dudley’s argument that Griffin affirmatively establishes a public policy in favor of exempting small employers from common law discrimination suits ultimately fails.¹³

Nor is it inconsistent to follow the narrow definition of “employer” under RCW 49.60.040(3), which has the effect of exempting small employers from suits brought under the Law Against Discrimination, while at the same time recognizing the tort of wrongful discharge in violation of the public policy against discrimination incorporates no such exemption.

First, the Law Against Discrimination establishes the Washington Human Rights Commission and provides a mechanism for an employee to bring a complaint of a violation of the law against discrimination before the commission and before an administrative law judge. RCW 49.60-.230-.250. Even if small employers are subject to common law suit for wrongful discharge based on sex discrimination, this court’s decision in Griffin will continue to exempt such small employers from administrative proceedings and enhanced statutory remedies.

Second, the Law Against Discrimination is significantly broader than the tort of wrongful discharge. Under this statute an employee may obtain actual damages sustained as a result of discriminatory refusal to hire, workplace discrimination, and discriminatory employment advertising, as well as discriminatory discharge. RCW 49.60.030(2); RCW 49.60.180; see also Martini v. Boeing Co., 137 Wn.2d 357, 971 P.2d 45 (1999) (plaintiff entitled to claim actual damages proximately caused by discrimination in violation of RCW 49.60 even where such discrimination does not amount to constructive discharge). However, the tort of wrongful discharge in violation of public policy clearly applies only in a situation where an employee has been discharged.¹⁴

Third, a plaintiff can recover “the cost of suit including reasonable attorneys’ fees” after successfully asserting a claim under the law against discrimination. RCW 49.60-.030(2). However a recovery of attorney fees is not available under this statute to a successful plaintiff in a common law claim for wrongful discharge.

The clear statutory definition, which explicitly defines an “employer” as one which employs eight or more employees, was at the heart of our decision in Griffin. However the common law claim asserted by the plaintiff in the present case is not defined with reference to any such narrow statutory provision. Griffin must therefore he distinguished and does not control. The public policy against gender discrimination is at the core of RCW 49.60, not at its “penumbra.” Cf. Dissent at 88. This statute provides an abundantly clear statement of public policy upon which a common law cause of action for wrongful discharge may be predicated.

Ill

CONCLUSION

Following Thompson v. St. Regis Paper Co., Gardner v. Loomis Armored, Inc., and Bennett v. Hardy, we find the plaintiff has properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. This clearly articulated public policy is based on RCW 49.12.200 and RCW 49.60.010 and has been previously recognized in Marquis v. City of Spokane. The Court of Appeals is affirmed.

Smith, Johnson, Alexander, and Ireland, JJ., concur.

1 Independent Business Association was joined by the Association of Washington Business and the National Federation of Independent Business in its amicus brief. (These amici curiae will hereinafter be referred to as “amicus Independent Business Association.”)

2 The Equal Rights Amendment (ERA) to the Washington Constitution states:

Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.

Wash. Const, art. XXXI, § 1. For the purposes of this case it is not necessary to decide whether the ERA may form the basis for a tort of wrongful discharge in violation of public policy when suit is brought against a private employer. We will not decide a case on constitutional grounds if it can be decided on a nonconstitutional basis. Weiss v. Glemp, 127 Wn.2d 726, 730, 903 P.2d 455 (1995); see also United States v. Locke, 471 U.S. 84, 92, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985). Because we find that Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996), the Law Against Discrimination (RCW 49.60), and RCW 49.12.200 all evidence a strong and clear public policy against discrimination, it is unnecessary to determine whether the ERA is also a source of this public policy.

3 The American Civil Liberties Union of Washington was joined by the Washington Employment Lawyers Association in its amicus brief. (These amici curiae will hereinafter be referred to as “amicus ACLU”)

4 The court found that

public policy tort actions have generally been allowed in four different situations: (1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing.

Gardner, 128 Wn.2d at 936.

5 Thus it is quite natural, not “curious,” that we look to positive law to define when a termination is “wrongful” rather than benign. Cf. Concurrence at 79 (Talmadge, J.). Unfortunately Justice Talmadge’s concurrence confuses the absence of a statutory remedy with the absence of a statutory policy. However, the policy may be broader in declaration than the remedy provided by the statute.

6 Amicus Independent Business Association cites Schonauer v. DCR Entertainment, Inc., 79 Wn. App. 808, 905 P.2d 392 (1995), claiming it demonstrates there cannot be a tort of wrongful discharge based on a public policy against discrimination. Although the court in Schonauer denied the plaintiff a wrongful discharge cause of action, it did so with only cursory analysis and without the benefit of argument that there was a statutory basis for the public policy. Id. at 827. Schonauer is therefore unhelpful to the determination of the present case.

7 Roberts and Amicus American Civil Liberties Union cite several statutes evidencing a public policy against gender discrimination. Some of these statutes support a public policy against sex discrimination by governmental entities. E.g., RCW 28A.640.010 (“Inequality in the educational opportunities afforded women and girls at all levels of the public schools in Washington state is a breach of Article XXXI, section 1, Amendment 61, of the Washington state Constitution, requiring equal treatment of all citizens regardless of sex. This violation of rights has had a deleterious effect on the individuals affected and on society.”); RCW 74.04.515 (prohibiting discrimination based on sex for the purposes of public assistance); RCW 2.36.080 (prohibiting exclusion from jury pools based on gender). Other statutes apply a public policy against sex discrimination to the private sector. RCW 48.30.300(1) (“No person or entity engaged in the business of insurance in this state shall refuse to issue any contract of insurance or cancel or decline to renew such contract because of. . . sex . . . .”); RCW 49.12.175 (prohibiting sex discrimination in the payment of wages). For a full list of statutes cited see Supplemental Br. of Resp’t at 5, and Br. of Amicus American Civil Liberties Union at 15 n.6.

8 RCW 49.12.200 was first enacted in 1890. Laws of 1889-90, at 519.

9 The dissent also argues the defeat of two recent bills, SB 5130 and ESB 5337, 56th Leg., Reg. Sess. (1999), evidence the intent of the legislature not to subject small employers to any discrimination suits. However this argument is too broad. These bills, if enacted, would have subjected small employers to statutory remedies. Their failure, however, does not signify any retraction of a more fundamental public policy against wrongful discrimination in the workplace. Senate Bill 5130 would have changed the definition of “employer” in RCW 49.60.030 to any person employing one or more employees, thus effectively removing the small employer “exemption” from the statute. If this demonstrates any legislative intent at all, it simply indicates if the bill had been enacted the legislature would have removed the small employer “exemption” to the provisions of RCW 49.60. For the same reason ESB 5337, which proposed a task force to examine the definition of “employer” for the purposes of RCW 49.60, provides no relevant evidence of legislative intent.

10 The dissent attacks a straw man when it argues there is no statutoiy remedy here based upon the narrow definition of “employer.” That, however, is just the point — the legislative policy against discrimination in employment is broader than its remedy. But the statutory remedy, or lack thereof, does not define the policy. Dissent at 81-82.

11 Courts in other states have considered strikingly similar issues. Amicus Independent Business Association cites two cases where courts have declined to recognize a tort of wrongful discharge—Brown v. Ford, 1999 OK 101, 905 P.2d 223 (Okla. 1995) and Jennings v. Marralle, 8 Cal. 4th 121, 876 P.2d 1074, 32 Cal. Rptr. 2d 275 (1994). Br. of Amicus Independent Business Association at 8-9. However, other courts have found a clear public policy against discrimination in state antidiscrimination statutes even though those statutes exempt small employers. Molesworth v. Brandon, 341 Md. 621, 637, 672 A.2d 608, 616 (1996) (“We hold . . . that Art. 49B, § 14 [of the Maryland code, making discriminatory discharge an unlawful employment practice] provides a clear statement of public policy sufficient to support a common law cause of action for wrongful discharge against an employer exempted by Art. 49B, § 15(b). Section 15(b) merely excludes small employers from the administrative process of the Act, but does not exclude them from the policy announced in § 14.” (emphasis added)); Kerrigan v. Magnum Entertainment, Inc., 804 F. Supp. 733, 736 (D. Md. 1992) (“Because art. 49B [of the Maryland code] evidences o clear polity against employment discrimination, and because this Court finds no legislative intent on the part of the General Assembly to exempt small businesses from the polity animating art. 49B, the Court finds that [a] . . . wrongful termination claim based on alleged discrimination will lie in Maryland . . . .” (emphasis added)); Collins v. Rizkana, 73 Ohio St. 3d 65, 74, 652 N.E.2d 653, 661 (1995) (“[I]n the absence of legislative intent to preempt common-law remedies, we can perceive no basis upon which to find that R.C. 4112.01(A)(2) [exempting employers with fewer than four employees from the antidiscrimination statute] forms part of the public policy reflected in R.C. 4112.02(A) [making discrimination in employment an unlawful practice]. Therefore, we cannot find it to be Ohio’s public policy that an employer with three employees may condition their employment upon the performance of sexual favors while an employer with four employees may not.”); Williamson v. Greene, 200 W Va. 421, 490 S.E.2d 23, 33 (1997) (“[T]he West Virginia Human Rights Act clearly constitutes this state’s ‘substantial public policy’ against sex discrimination and sexual harassment in employment, including retaliatory discharge based thereon. Although the Act does not provide this plaintiff with a statutory remedy, it nevertheless sets forth a clear statement of public policy sufficient to support a common law claim for retaliatory discharge against an employer . . . .”) (emphasis added) (footnote omitted).

12 See discussion of Griffin v. Eller, infra at 73-77.

13 Contrary to the reasoning of Justice Talmadge’s concurrence, which apparently still favors his own dissent in Griffin to the court’s majority opinion in that case, the precedent which binds the court here is that spoken by the majority in Griffin, not the dissent. For the reasons indicated therein, Griffin was correctly decided, and we distinguish here the policy underlying a statute from the remedy, or lack thereof, provided by the statute to accomplish that policy. If the concurrence concludes the Griffin precedent leads to a result different from that stated here, the concurrence should be with the dissent, not with this majority.

14 We do not here recognize a tort of “gender discrimination.” Cf. Dissent at 86. Rather, we recognize the long-established tort of wrongful discharge may be established when the discharge is wrongfully accomplished on account of gender.