RCW 49.60 Interpretation

In Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990) 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. The Court 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. The Court 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, the Court 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. The Court 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 the Court 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.