I know no safe depository of the ultimate powers of the society but the people themselves; and
if we think them not enlightened enough to exercise their control with a wholesome discretion,
the remedy is not to take it from them, but to inform their discretion.
Thomas Jefferson 1743-1826 - Letter to William Charles Jarvis [September 28, 1820]
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The Washington Law Against Discrimination
Brief on Initiative 677's Proposed Additions to RCW 49.60
Prepared by Sidney Turbyfill
WARNING! THERE ARE SPECIAL PROVISIONS IN INITIATIVE 677! IF ENACTED, THESE PROVISIONS WOULD APPLY ONLY TO THE NEW "SEXUAL ORIENTATION MINORITIES" CREATED WITH THIS INITIATIVE! ALL OTHER LEGITIMATE MINORITY PERSONS, WOULD BE EXCLUDED FROM THESE NEW PROVISIONS!
I. Currently, under RCW 49.60.210, commonly know as the "retaliation provision, you can sue both the employer and the individual for retaliation.
RCW 49.60.210 Unfair to discriminate against person opposing unfair practice. (1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter. (2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.
II. Currently, under RCW 49.60.180, you can sue only an employer for employment discrimination based on a
protected category. This includes claims based on being fired, paid less, harassed, etc., based on the protected category.
But under Initiative 677, Sec. 3(2) of I-677, you can still sue individuals for retaliation, just like current law. HOWEVER, this
section adds new language not in the current statute and this new language applies to individuals: "to interfere with any person in
the exercise of any right protected by this act." This is separate and distinct from the retaliation portion of this paragraph, which
begins as "or to discharge, expel, etc."
III. Initiative 677:
{+ NEW SECTION. +} Sec. 3. UNFAIR PRACTICES PROHIBITED. (1) It is a prohibited unfair practice for an employer, employment agency or labor organization, in connection with employment opportunities, employment decisions, membership, or membership privileges, to discriminate against a person on the basis of sexual orientation. (2) It is a prohibited unfair practice for an employer, employment agency, labor organization, or person to interfere with any person in the exercise of any right protected by this act or to discharge, expel, or otherwise retaliate or discriminate against a person because he or she opposed any practice prohibited by this act or assisted in an action brought under it. [emphasis added].
NOTE, IF SEC. 3 (2) WERE INTENDED TO ONLY COVER RETALIATION CLAIMS, THEN THE SECTION WAS
WHOLLY UNNECESSARY. It is a TOTALLY NEW FEATURE added to The Washington Law Against Discrimination for the
EXCLUSIVE BENEFIT of so-called "sexual minority" employees. And it portends greater "personal liability" for
SUPERVISORS of "sexual minority" personnel PLUS it provides first-time legal standing in courts of law against
COWORKERS of ALLEGED "sexual minority" claimants.
Additionally, the phrasing immediately following person, "to interfere with any person in the exercise of any right
protected by this act," is a totally new addition. The word "interfere" is frought with uncertainty as to what might constitute
interference.
As with any new law, there will certainly be numerous "meritless" claims (those claims that are successfully defended against) until
the courts decide how they will interept this new language in the statute. Of course, the costs of meritless cases are borne by
taxpayers, in the case of the government workplace, and employees, customers and other stakeholders, in the case of private
businesses.
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IV. "OMISSION" and "EMOTIONAL DISTRESS" added to RCW 49.60.030: From I-677:
{+ NEW SECTION. +} Sec. 6. REMEDIES--ENFORCEMENT STANDARDS. (1) Any person deeming himself or herself injured by any act or omission in violation of this act shall have a civil action in a court of competent jurisdiction to enjoin further violations and to recover the compensatory damages, including emotional distress, if any, sustained by such person, together with the costs of suit, including reasonable attorney's fees and costs and expert fees and costs. [emphasis added]," the word "act" is not new but what could be included in the word "omission?" Also, "emotional distress" is new to the language of The Washington Law Against Discrimination.
V. Current RCW 49.60.030:
Freedom from discrimination--Declaration of civil rights. (2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
VI. Although, courts already permit claimants to recover compensatory damages for emotional distress, until the courts decide otherwise, one has to assume that absolutely anything could be an omission causing a "hostile work environment" resulting in "emotional distress!"
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If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.
Thomas Jefferson 1743-1826 / Letter to Colonel Charles Yancey [January 6, 1816]
Contact: Sidney Turbyfill
Phone: (425) 821-3341
E-Mail: Sid Turbyfill