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Brown v. Scott Paper Worldwide Co.12/13/1999
it also includes, inter alia, any manager, agent or employee. RCW 49.60.040(1). Brown contends that the eight-employee threshold requirement means only that the workplace must employ eight or more employees, not that the "person" being held liable is required to employ eight or more employees. The managers argue in response that because only those employers employing eight or more persons can be liable for employment discrimination under RCW 49.60.180, managers and other individual employees cannot be employers under that section because it is the employer, and not its managers or other individual employees, that does the employing. The managers also point out that under corresponding federal law, individual managers or supervisors are not employers subject to liability. E.g., Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993). Under Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988) federal cases construing federal statutes prohibiting discrimination in employment may provide persuasive although not binding authority with respect to the construction of corresponding provisions in the Washington statute, where no different meaning is apparent from the language of the Washington statute.
We find the language of RCW 49.60.040(3) defining "employer" to be ambiguous. Read literally as punctuated, it would appear to be the "person acting in the interest of an employer, directly or indirectly," who must employ eight or more persons, rather than the employer itself. But this literal reading would render the phrase "any person acting in the interest of an employer, directly or indirectly" superfluous and without any practical meaning, in that, in virtually every instance of which we can conceive, it is, indeed, the employer, and not its managers or other individual employees, that does the employing. Thus, the managers' proposed construction would violate that most elementary of rules of statutory construction, that courts should avoid leaving any statutory language without effect. E.g., Becker v. Pierce County, 126 Wn.2d 11, 17, 890 P.2d 1055 (1955). We can conceive of no reason why the Legislature would have included "any person acting in the interest of an employer, directly or indirectly" in its definition of "employer" if it had not intended to extend liability to such "person" (as further defined in RCW 49.60.040(1)) for his or her conduct in violation of RCW 49.60.180, when it amended the chapter in 1973 to create private causes of action.
Our construction is buttressed by our Supreme Court's recent opinion in Griffin v. Eller, 130 Wn.2d 58, 922 P.2d 788 (1996). There, a legal secretary sued her attorney employer, a sole-practitioner who had never employed eight or more persons, for sexual discrimination. The Griffin court held that employers of fewer than eight employees are simply exempt from the provisions of Ch. 49.60, id. at 64, and further held that this application did not violate the State's privileges and immunities clause, Const. art. I, sec. 12. Id. at 70. In the course of the constitutional ruling (applying the rational basis test), the court reasoned:
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. Approximately 75 percent of business establishments in Washington have fewer than nine employees; however, they employ only about 17.5 percent of the private employee work force. The Legislature could well have concluded burdening so many employers to benefit so few employees was no
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