Gottling v. P.R. Inc.

DURHAM, Chief Justice,

dissenting.

¶ 26 I respectfully dissent.

¶ 27 Oliver Wendell Holmes noted that the law is a “magic mirror” reflecting “not only our own lives, but the lives of all men that have been.” Oliver Wendell Holmes, Jr., The Speeches of Oliver Wendell Holmes 17 (1891). The law thus reflects the myriad changes that occur in society, and strives, however imperfectly, to make the world more just. The Utah Legislature acknowledged profound societal changes when it passed the Utah Anti-Discrimination Act. Responding to the deep revulsion felt by the majority of our citizens to unfair employment discrimination, the Act made such practices actionable in a fast, relatively cheap, and efficient way. The majority opinion draws the illogical conclusion that, in providing statutory remedies for employees of large employers (employers of fifteen or more employees), the legislature preemptively eliminated all common law employment discrimination remedies for all other employees. I disagree.

¶28 The anti-discrimination statute provides administrative procedures for all employment discrimination claims arising at larger employers. This statutory scheme is silent regarding all other employees who constitute the majority of Utah workers. The majority of this court infers from this silence the conclusion that the legislature legitimized employment discrimination against all employees of small businesses, including Ms. Gottling, who was allegedly fired by her employer for refusing his sexual demands.

¶ 29 Traditionally, the legislature may change the common law only explicitly. Fed. Sav. & Loan Ins. Corp. v. Quinlan, 678 F.Supp. 174, 176 (E.D.Mich.1988). “The legislature is presumed to know the common law which existed before the enactment of a statute, and ‘absent an indication that the legislature intends a statute to supplant common law, the courts should not give it that effect’ ” (quoting Norman J. Singer, Sutherland Stat. Constr. § 50.01, at 422 (4th ed.1984)); see also Tucson Gas & Elec. Co. v. Schantz, 5 Ariz.App. 511, 428 P.2d 686, 690 (Ariz.1967); Hechter v. N.Y. Life Ins. Co., 46 N.Y.2d 34, 412 N.Y.S.2d 812, 385 N.E.2d 551, 554 (1978).⁴ This principle of interpretation is particularly important here where major public policies such as anti-discrimination are concerned. If the legislature wishes to make sexual harassment lawful for the employers, it knows how to do so. On its face, this statute is intended to strengthen anti-discrimination law; nowhere does it suggest an intent to weaken or undermine it. The majority’s assumption to that effect is distressing in its implications.

¶ 30 In my view, the legislature intended by the Act to establish simplified procedures and more certain remedies for unlawful discrimination by bigger businesses. That goal is inconsistent with the conclusion that the legislature sub silencio repealed and eliminated existing common law remedies for employees who happen to work for smaller employers. The majority’s position implicitly concludes that the legislature in fact intended the statute to weaken employment anti-discrimination law, rather than strengthen it. I am not prepared to accept that conclusion.

¶ 31 The legislature created a “package deal” affecting employees of larger firms. The trade-offs included in the package, not unlike those contained in the workers’ compensation scheme, are clear: In return for losing access to common law remedies (some of which were unorganized, under-developed, or uncertain during this period), employees could use a simple, relatively certain, statutory procedure for redressing discriminatory practices. Presumably, the legislature did not extend the Act to smaller employers out of concern that they might be financially unable to meet the costs of creating the sorts of hiring and promotion policies that are the most effective way of avoiding anti-discrimination lawsuits. Moreover, it is reasonable to make it easier to sue and recover from an entity which has greater monetary resources, especially because large, visible corporations are more likely to serve as an example than smaller enterprises. But there is no reason to infer from the fact that the legislature strengthened anti-discrimination remedies against large employers that it simultaneously intended to destroy or preclude existing and future remedies against small employers.

¶ 32 The majority opinion states that the phrase “employment discrimination” is not defined in the statute and therefore must include discrimination by small firms. See Utah Code Ann. § 34A-5-107(15) (2001). This is incorrect. The statute explicitly states that it applies only to employers with fifteen or more employees. This is a limiting definition of employment discrimination: The statute simply does not speak to discrimination by small employers.

¶ 33 In Burton this court decided the common law issue of whether age discrimination could be the basis for a claim for tortious wrongful termination for employees of small employers on grounds other than the UADA’s alleged exclusivity. Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, ¶¶ 10-12, 994 P.2d 1261. Had the UADA applied, there would have been no reason to do a public policy analysis. The legislature’s “broad goal of eliminating employment discrimination” supports, the common law remedy plaintiff seeks here. Burton at ¶ 25 (Durham, J., dissenting). It is the “important and substantial public policies” involved in eradicating the scourge of employment discrimination from our society that point to the legislature having no intent to weaken the very rights of Utah workers they have sought to protect. See Berube v. Fashion Ctr., Ltd., 771 P.2d 1033,1042 (Utah 1989). Today’s decision announces the principle that the majority of Utah workers have no remedy whatsoever, statutory or common law, against their employers for discrimination on the basis of race, color, sex, pregnancy, age, religion, national origin, or disability. I cannot agree that the legislature either intended this result or accomplished it in the Utah Anti-Discrimination Act. Such a result violates basic notions of fairness and human dignity. Furthermore, as I noted in my dissent in Burton:

[T]he way in which a state regulates relations between employees and employers has a significant impact on the quality of life for many of its citizens, and ultimately for the society as a whole. The “workplace climate” of a state is an important part of its opportunities for economic growth and long-term development. It is an entirely appropriate arena for the operation of policy choices intended to benefit the public interest, as indeed is manifest by the legislature’s choice to embody anti-discrimination principles in [the] statute. Utah should not be a place where workers can be fired, paid less, or otherwise treated less favorably by nearly 70 percent of all employers on the basis of their race, sex, religion, disability, or age.

Burton, 994 P.2d 1261, 2000 UT 18 at ¶ 25 (Durham, J., dissenting).

4 . In a recent decision we stated that courts may look to statutory "structure and purpose” to find “implicit, preemptive intent” of the common law when the statutory regulation is "so pervasive,” is in "irreconcilable conflict” with the common law, or when the common law “stand[s] as an obstacle to the accomplishment ... of the full purposes and objectives of [the legislature].” Bishop v. GenTec Inc., 2002 UT 36, ¶9, 48 P.3d 218 (citations omitted and internal quotations omitted). The Utah Anti-Discrimination Act is not "so pervasive” to warrant such a discussion since it covers only employees of businesses with fifteen or more employees, and neither is the common law in "irreconcilable conflict” or an "obstacle” to the statutory scheme.