Jin Zhu v. N. Cent. Educ. Serv. District

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This opinion was filed for record
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SUSAN L. CARLSON
,
CMIEFJUSTlCe
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF WASHINGTON No. 94209-9
IN
JINZHU,
EN BANC
Plaintiff,
Filed:
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NORTH CENTRAL
EDUCATIONAL SERVICE
DISTRICT-ESD 171,
Defendant.
YU,J.— Washington law prohibits employers from discriminating against
job applicants and employees on the basis of protected characteristics such as race,
sex, or national origin. Washington law also prohibits employers from engaging in
retaliatory discrimination against employees who previously opposed the
employer's discriminatory practices. The question presented in this case is
whether prospective employers are nevertheless free to engage in retaliatory
Jin Zhu V. ESD 171, No. 94209-9
discrimination in the hiring process. In the precise words of the district court,
"Does RCW 49.60.210(1) create a cause of action for job applicants who claim a
prospective employer refused to hire them in retaliation for prior opposition to
discrimination against a different employer?" Order Certifying Local Law
Questions to Wash. Supreme Ct., Jin Zhu v. N. Cent. Educ. Serv. Dist. — ESD 171,
No. 2:15-CV-00183-JLQ, at 7(E.D. Wash., Feb. 28, 2017)(Order Certifying
Question).
The answer is yes. In accordance with the plain language ofthe Washington
Law Against Discrimination(WLAD),chapter 49.60 RCW,retaliatory
discrimination against job applicants by prospective employers is prohibited by
RCW 49.60.210(1). Therefore, plaintiff Jin Zhu's claim that defendant North
Central Educational Service District-ESD 171 (ESD 171)refused to hire him
because of his opposition to his former employer's racial discrimination stated a
valid cause of action.'
FACTUAL AND PROCEDURAL BACKGROUND
A. Jin Zhu V. Waterville School District No. 209
Waterville School District No. 209 hired Zhu as a math teacher in 2006. In
2010, Waterville issued a notice of probable cause for Zhu's discharge, which he
'ESD ITl's briefing refers to "Zin Zhu." Def.'s Opening Br. at 1. We defer to the
plaintiffs spelling of his own name.
Jin Zhu V. ESD 171, No. 94209-9
appealed. The hearing officer determined that there was not probable cause for
discharge and restored Zhu to his position. Jin Zhu v. Waterville Sch. Dist. No.
209, No. CV-10-0333-LRS, 2012 WL 220273, at *2(E.D. Wash. Jan. 25, 2012)
(court order). Zhu then sued Waterville in federal district court, alleging that
Waterville had subjected him to racially motivated disparate treatment, a hostile
work environment, and retaliation in violation of42 U.S.C. §§ 1983, 2000e-2, and
2000e-3. Id. at*l.
Zhu is a United States citizen who emigrated from China in 2004. His
complaint alleged that he filed multiple grievances with Waterville regarding
hostile and abusive actions by his students. For instance,
Zhu described being called a chink, a communist, and gay by
his students; in 2008 Zhu was the subject of a cartoon that depicted a
border patrol shooting someone described as a communist chink; and
in May,2009 a student scrawled a hateful racial attack against Zhu on
a bathroom wall, saying he hoped Zhu's new house would bum down.
Id. at *3 n.2. Zhu alleged that instead of attempting to remedy the situation,
Waterville took retaliatory actions against him for filing the grievances, including
attempting to discharge him without probable cause. After the district court denied
Waterville's motion for summary judgment dismissal, the parties settled and Zhu
resigned from Waterville in March 2012.
Jin Zhu V. ESD 171, No. 94209-9
B. Jin Zhu v. North Central Educational Service District-ESD 171
Three months after resigning from Waterville, Zhu applied for a position as
a "Math-Science Specialist" with ESD 171. Pretrial order, Zhu v. N. Cent. Educ.
Serv. Dist-ESD 171, No. 2:15-CV-00183-JLQ, at 1 (E.D. Wash. Sept. 8, 2016).
ESD 171 is an educational service district that "[p]rovide[s] cooperative and
informational services to local school districts," including Waterville, RCW
28A.310.010(1), and it is undisputed that members ofESD Hi's hiring committee
were aware ofZhu's lawsuit against Waterville. Zhu was one ofthree candidates
interviewed, but ESD 171 ultimately hired a different candidate, whom Zhu claims
was far less qualified for the position. Zhu sued ESD 171 in federal district court,
alleging that it refused to hire him in retaliation for his prior lawsuit against
Waterville, thereby violating WLAD's antiretaliation statute, RCW 49.60.210(1),
as well as other state and federal laws.
ESD 171 moved for summary judgment dismissal, asserting that Zhu's
WLAD antiretaliation claim should fail for the same reasons that his federal
antiretaliation claim should fail. However,the district court correctly noted that
WLAD is not identical to federal law, analyzed the WLAD antiretaliation claim on
its merits, and denied summary judgment. ESD 171 moved to reconsider, arguing
that Zhu's WLAD antiretaliation claim must fail because RCW 49.60.210(1) does
not prohibit retaliatory discrimination against job applicants by prospective
Jin Zhu V. ESD 171, No. 94209-9
employers. The court denied reconsideration. Following a jury trial, Zhu
prevailed on his WLAD antiretaliation claim and was awarded damages.
ESD 171 then filed a motion for judgment as a matter oflaw or for a new
trial, challenging the sufficiency of the evidence and the jury instructions, and
asking in the alternative that the district court certify to us the question of RCW
49.60.210(l)'s scope. Despite its earlier ruling denying reconsideration, the
district court granted the motion in part and certified the following question
regarding the scope of RCW 49.60.210(1)to this court:"Does RCW 49.60.210(1)
create a cause of action for job applicants who claim a prospective employer
refused to hire them in retaliation for prior opposition to discrimination against a
different employer?" Order Certifying Question at 7. The court otherwise denied
the motion, ruling that
[i]f the Washington Supreme Court finds RCW 49.60.210(1)
provides a cause of action to a prospective employee against a
prospective employer not involved in the underlying discrimination
claim the jury verdict in this case will be upheld. If the Washington
Supreme Court finds RCW 49.60.210(1) does not provide such a
cause of action, the jury verdict in this case will be vacated.
Id.
ISSUES
A. "Does RCW 49.60.210(1) create a cause of action for job applicants
who claim a prospective employer refused to hire them in retaliation for prior
opposition to discrimination against a different employer?" Id.
Jin Zhu V. ESD 171, No. 94209-9
B. Is Zhu entitled to attorney fees on review?
ANALYSIS
WLAD "create[s] a private cause of action against any employer engaging in
an 'unfair practice.'" Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 489, 325 P.3d
193 (2014)(emphasis omitted)(quoting Griffin v. Eller, 130 Wn.2d 58, 63,922
P.2d 788 (1996)). RCW 49.60.210(1) provides that it is an actionable unfair
practice for "any employer ... to discharge, expel, or otherwise discriminate
against any person because he or she has opposed any practices forbidden by this
chapter." (Emphasis added.)
By rendering a verdict in Zhu's favor, the jury has already decided as a
question of fact that ESD 171 refused to hire Zhu because of his opposition to
Waterville's discriminatory practices.^ See Jin Zhu v. N. Centr. Educ. Serv. Dist. -
ESD 171, No. 2:15-CV-00183-JLQ, 2016 WL 7428204, at *12(E.D. Wash. Dec.
23, 2016)(court order). The certified question asks only whether, as a matter of
law, the cause of action created by RCW 49.60.210(1) prohibits retaliatory
discrimination in hiring, as well as in existing employment relationships.
In accordance with the plain language ofRCW 49.60.210(1) and WLAD as
a whole, the answer is yes. And because the federal district court already ruled that
^ The standard of causation for WLAD antiretaliation claims is whether "retaliation was a
substantial factor behind the [defendant's] decision." Allison v. Hons. Auth, 118 Wn.2d 79,95,
821 P.2d34(1991).
Jin Zhu V. ESD 171, No. 94209-9
if we answer in the affirmative, then "the jury verdict in this case will be upheld,"
Zhu is entitled to attorney fees on review in accordance with RAP 18.1(a) and
RCW 49.60.030(2). Order Certifying Question at 7.
A. The answer to the certified question is yes
Since its inception in 1949, WLAD has always contained an antiretaliation
statute. Laws of 1949, ch. 183, § 7(4). Like all antiretaliation statutes, RCW
49.60.210(l)'s primary purpose is "[mjaintaining unfettered access to statutory
remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct.
843, 136 L. Ed. 2d 808 (1997). As we have previously recognized,"[pjeople will
be less likely to oppose discrimination by bringing claims or testifying if this court
does not provide them some measure of protection against retaliation." Allison v.
Hons. Autk, 118 Wn.2d 79, 94, 821 P.2d 34(1991). Thus, in order to encourage
people to oppose discrimination, RCW 49.60.210(1) provides in full:
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.
Very few opinions by this court have discussed this provision, and no Washington
court has considered whether RCW 49.60.210(1) prohibits retaliatory
discrimination against job applicants by prospective employers.
Jin Zhu V. ESD 171, No. 94209-9
We decide this certified question of statutory interpretation as a matter of
law. Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487(2017). In order to
give effect to the legislature's intent, we begin with the statute's plain language.^
Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4(2002).
When interpreting WLAD,we are particularly mindful that "a plaintiff bringing a
discrimination case in Washington assumes the role of a private attorney general,
vindicating a policy of the highest priority." Marquis v. City ofSpokane, 130
Wn.2d 97, 109, 922 P.2d 43 (1996). To further this important purpose, both the
legislature and Washington courts require that even in a plain language analysis,
WLAD's provisions must be given "liberal construction." Id. at 108 (citing RCW
49.60.020).
1. The ordinary meaning ofthe plain language of RCW 49.60.210(1)
shows that the answer is yes
The plain language of RCW 49.60.210(1), in and of itself, strongly indicates
that the answer to the certified question is yes. That statute provides that it is an
unfair practice for "any employer ...[to] discriminate against any person because
he or she has opposed any practices forbidden by this chapter." Therefore, if
(1)ESD 171 is an employer,(2)Zhu is a person,(3)refusal to hire is
^ ESD 171 contends that a plain meaning analysis is inappropriate because the district
court already ruled that RCW 49.60.210(1) is ambiguous. See N. Centr. Educ. Serv. Dist., 2016
WL 7428204, at *11. However, our review is de novo and we may answer certified questions of
state statutory interpretation based on the statutes' plain language without finding any ambiguity.
E.g., Lopez Demetrio v. Sakuma Bros. Farms, Inc., 183 Wn.2d 649, 656, 355 P.3d 258 (2015).
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discrimination, and (4)suing for racial discrimination is opposition to practices
forbidden by WLAD,then RCW 49.60.210(1) clearly applies to Zhu's claim.
First, for purposes of WLAD,an "employer" is broadly defined as "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(11). ESD 171 is clearly "any
employer" in accordance with that definition, as there is no dispute that it employs
eight or more people and is not a religious or sectarian organization.
Next, as to whether Zhu is a person, WLAD defines a "person" in extremely
broad terms to include
one or more individuals, partnerships, associations, organizations,
corporations, cooperatives, legal representatives, trustees and
receivers, or any group of persons; it includes any owner, lessee,
proprietor, manager, agent, or employee, whether one or more natural
persons; and further includes any political or civil subdivisions ofthe
state and any agency or instrumentality ofthe state or of any political
or civil subdivision thereof.
RCW 49.60.040(19). Zhu is obviously a person.
Third, while WLAD does not define "discrimination," it would defy the
ordinary meaning ofthat word to hold that it excludes an employer's
differentiation between people in the hiring process based on an observable
characteristic, such as whether or not they have previously filed antidiscrimination
lawsuits. Therefore, when ESD 171's refused to hire Zhu because he had
Jin Zhu V. ESD 171, No. 94209-9
previously sued Waterville for racial discrimination, ESD 171 discriminated
against Zhu.
Finally, discriminating against a person in "terms or conditions of
employment" because of race is clearly a practice forbidden by WLAD,and filing
a lawsuit for damages based on such discrimination is clearly opposing that
practice. RCW 49.60.180(3). Therefore, Zhu's prior lawsuit against Waterville
for racial discrimination in the terms and conditions of his employment constituted
opposition to a practice forbidden by WLAD.
Thus, all the elements of RCW 49.60.210(1) are met: An employer, ESD
171, discriminated against a person, Zhu, by refusing to hire him, and the jury
determined that it did so because Zhu opposed practices forbidden by WLAD by
suing Waterville for racial discrimination.
ESD 171, however, argues that the overall statutory context shows that the
legislature intended WLAD's antiretaliation provision to be significantly narrower
than WLAD's provisions prohibiting discrimination based on protected
characteristics, such that the antiretaliation provision applies only to a plaintiffs
current employer and prohibits only adverse actions that affect the plaintiffs
preexisting employment status. ESD 171 is correct that discerning a statute's plain
meaning requires us to consult the statute itself, "as well as related statutes or other
provisions ofthe same act in which the provision is found." Campbell & Gwinn,
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LLC, 146 Wn.2d at 10. However,ESD ITl's interpretation is entirely inconsistent
with the plain language, structure, and purpose of WLAD as a whole. We
accordingly reject it.
2. As in the rest of WLAD,an "employer" is not limited to the plaintiffs
current employer for purposes of RCW 49.60.210(1)
ESD 171 argues that RCW 49.60.210(l)'s reference to "any employer"
should be read as "the plaintiffs current employer." Because it is undisputed that
ESD 171 was not Zhu's current employer when it refused to hire him,ESD 171
thus argues that RCW 49.60.210(1) cannot apply as a matter oflaw. We disagree.
For purposes of WLAD,an "employer" is broadly defined as "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(11). This definition clearly
includes prospective employers, and nothing about the statutory context indicates
that "any employer" means something different for purposes ofthe antiretaliation
statute than it does for the purposes ofthe rest of WLAD. See Champion v.
Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304(1972)(we assume
that when the legislature uses the same word in different parts of a single statutory
scheme, that word has the same meaning throughout).
First, ESD 171 correctly notes that RCW 49.60.210(1) does not explicitly
refer to prospective employers or job applicants. However,this is not a distinctive
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feature of the antiretaliation provision because none of WLAD's provisions refer to
a "prospective employer" or a "job applicant." Exactly one provision in WLAD
refers to a "prospective employee," RCW 49.60.030(3), but none ofthe other
provisions that clearly apply to them do so. For instance, RCW 49.60.180 provides
in relevant part:
It is an unfair practice for any employer.
(1) 7b refuse to hire any person because of age, sex, marital
status, sexual orientation, race, creed, color, national origin, honorably
discharged veteran or military status, or the presence of any sensory,
mental, or physical disability or the use of a trained dog guide or
service animal by a person with a disability, unless based upon a bona
fide occupational qualification.
(Emphasis added.) We have therefore always treated WLAD references to
employers to include prospective employers where appropriate. E.g., Scrivener v.
Clark Coll., 181 Wn.2d 439, 334 P.3d 541 (2014); of. Robinson, 519 U.S. at 341(noting that Title VII ofthe Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241,
does not use any "temporal qualifier").
Second, ESD 171 argues that the "Rinctionally similar" test Washington
courts have applied in other cases should apply here, thus restricting RCW
49.60.210(l)'s scope to the plaintiffs current employer. This is simply not a
context in which that test is appropriately applied. Washington courts employ the
"functionally similar" test to determine whether the defendant had sufficient
control over the plaintiffs employment to be held personally liable for
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discriminatory actions. See Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App.
927,930,965 P.2d 1124(1998)(coworker without supervisory authority is not
personally liable for retaliation). As the entity making the hiring decision, ESD
171 had complete control over Zhu's possible employment, and the "functionally
similar" test has no relevance here.
A prospective employer, including ESD 171, easily fits within AtVLAD's
definition of an "employer," and RCW 49.60.210(1) explicitly applies to "any
employer." There is nothing in the statutory language or context to indicate that
RCW 49.60.210(1) does not mean exactly what it says.
3. RCW 49.60.210(1) prohibits all forms of discrimination by employers
in their capacity as employers
ESD 171 also takes the position that RCW 49.60.210(1) prohibits retaliatory
discrimination only in the context of an established employment relationship
because the only forms of prohibited retaliation that the statute explicitly mentions
are "discharg[ing]" and "expel[ling]," both of which contemplate a preexisting
relationship. While the list of prohibited retaliatory actions in RCW 49.60.210(1)
is explicitly not exclusive, ESD 171 is correct to the extent that specific statutory
terms may reasonably inform courts as to the meaning of broader statutory terms.
RCW 49.60.210(1)(it is an unfair practice for an employer "to discharge, expel, or
otherwise discriminate'''(emphasis added)); Champion, 81 Wn.2d at 674.
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However,ESD 171's proposed interpretation ofRCW 49.60.210(1) is an
unreasonable application of that general rule.
Certainly, there are some reasonable inferences we might draw from the
explicitly listed forms of prohibited retaliatory discrimination. For instance,
because RCW 49.60.210(1) explicitly prohibits employers "discharg[ing or]
expel[ling]" a person on a retaliatory basis, it might well be reasonable to infer that
its prohibition against employers "otherwise discriminat[ing]" is limited to actions
that employers undertake in their capacity as employers. It does seem unlikely that
the statute contemplates a cause of action against someone who engages in
retaliatory discrimination against a purely social acquaintance in a purely social
capacity, even if the discriminator otherwise happens to be an employer. This does
not help ESD 171, however, because a refusal to hire is unquestionably an action
taken by an employer in its capacity as such.
Likewise, it may be reasonable to infer that because RCW 49.60.210(1)
makes retaliation an unfair practice of"any employer, employment agency,[or]
labor union," the "other person[s]" mentioned as possible defendants might be
restricted to entities that are functionally similar to employers, employment
agencies, or labor unions. See Malo,92 Wn. App. at 930. This is not necessarily
true, as the Court of Appeals has held that it is an unfair practice for a credit union
to expel a member because he assisted credit union employees in an
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antidiscrimination lawsuit, persuasively reasoning that a credit union is an '"other
person'" for purposes ofRCW 49.60.210(1). Galbraith v. TAPCO Credit Union,
88 Wn. App. 939, 951, 946 P.2d 1242(1997). We need not decide that issue
today, however, because ESD 171 is most certainly an employer.
Thus, there are likely some limitations to RCW 49.60.210(l)'s application,
but none are relevant here, and the statutory structure and context do not indicate
any legislative intent to limit its prohibition on retaliatory discrimination to
discrimination within existing employment relationships. Notably, RCW
49.60.210(1) explicitly applies to employment agencies, whose very purpose is to
"recruit, procure, refer, or place employees" who are not already in an established
employment relationship. RCW 49.60.040(12). Moreover, the Court of Appeals
has persuasively applied precedent from the Supreme Court ofthe United States to
hold that '"[a]n employment action is adverse if it is harmful to the point that it
would dissuade a reasonable employee from making complaints of sexual
harassment or retaliation.'" Boyd v. State, 187 Wn. App. 1,15, 349 P.3d 864(2015)(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.
Ct. 2405, 165 L. Ed. 2d 345 (2006)). If prospective employers are allowed to
engage in retaliatory refusals to hire, a reasonable employee might well be
dissuaded from opposing discriminatory practices for fear of being unofficially
"blacklisted" by prospective future employers.
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BSD ITl's interpretation is further undermined by WLAD's statutory
structure. Since the time that WLAD was first enacted, it has included the
provisions now codified at RCW 49.60.180-.200 and .210. Those provisions have
always maintained the same basic form, and they have always been set forth in the
same order. Compare RCW 49.60.ISO-.210, with LAWS OF 1949, ch. 183 § 7(1)-
(4).
First, RCW 49.60.180 defines practices by employers that are unfair when
based on a person's protected characteristics, including refusing to hire the person,
discharging the person, discriminating against the person in the terms and
conditions of employment, and inquiring into the person's protected characteristics
in the hiring process.
Second, RCW 49.60.190 defines practices by labor unions that are unfair
when based on a person's protected characteristics, including denying the person
membership to the union, expelling the person from the union, and discriminating
against the person in the union's duty ofrepresentation.
Third, RCW 49.60.200 defines practices by employment agencies that are
unfair when based on a person's protected characteristics, including refusal to refer
the person for employment and inquiring into the person's protected characteristics
in connection with prospective employment.
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Fourth, RCW 49.60,210 provides that it is an unfair practice for any
employer, labor union, or employment agency to discriminate against any person
for opposing practices forbidden by WLAD.
This structure strongly suggests that "otherwise discriminat[ing]" for the
purposes of RCW 49.60.210(1) must, at a minimum,include the preceding
explicitly specified unfair practices, one of which is an employer's refusal to hire.
RCW 49.60.180(1).
However, based on its reading of Washington case law,ESD 171 contends
that RCW 49.60.210(1) prohibits only an "adverse employment" action or decision
that affects the terms or conditions of an established employment relationship.
Def.'s Opening Br. at 37. Other published Washington cases considering
retaliatory discrimination by employers have used such language, but they were
clearly applying the statute in the context of existing employment relationships.
E.g., Allison, 118 Wn.2d at 86; Boyd, 187 Wn. App. at 6; accord 6A WASHINGTON
Practice: Washington Pattern Jury Instructions: Civil 330.05, at 358-59
(6th ed. 2012). No published Washington case has ever considered, much less
rejected, the question of whether RCW 49.60.210(1) prohibits retaliatory
discrimination in hiring. We therefore must apply the language ofthe statute,
rather than the language of distinguishable cases. The language of the statute
simply does not include the limitations that ESD 171 argues we should read into it.
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In support of its interpretation, BSD 171 relies on Warnek v. ABB
Combustion Engineering Services, Inc., which held that RCW 51.48.025 does not
create a cause of action for former employees who claim that their former
employer refused to rehire them in retaliation for the employees' having previously
filed workers' compensation claims in another state. 137 Wn.2d 450,972 P.2d 453(1999). In addition to the clear factual differences from this case, there are key
differences in the relevant statutory provisions, and "[a] close comparison ofthe
language of RCW 51.48.025 and RCW 49.60.210 . . . shows that the latter
condemns retaliation even more forcefully." Allison, 118 Wn.2d at 96.
RCW 51.48.025(2) specifically provides that an "employee" may file a
claim against his or her "employer," while RCW 49.60.210(1) provides that
retaliation against "any person" is an unfair practice, and RCW 49.60.030(2)
provides a cause of action for "[a]ny person" who has been subjected to an unfair
practice. And as Warnek itself noted, Title 51 RCW does not contain any
provision similar to WLAD's statutory mandate for liberal construction. 137
Wn.2d at 461. Because Warnek interpreted materially different statutes and its
conclusions were based on "the limited facts" presented, we do not extend its
holding to the situation presented here. Id.
Thus, based on its language, context, and structure, the nonexclusive list of
prohibited unfair retaliatory practices in RCW 49.60.210(1) does not indicate a
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Jin Zhu V. ESD 171, No. 94209-9
legislative intent to allow retaliatory discrimination in hiring by a prospective
employer against a job applicant.
4. The purposes of WLAD would be severely undermined by ESD 171's
interpretation
Finally, any plain language interpretation of a WLAD provision must
consider the legislature's express statement of purpose and mandate for liberal
construction. These considerations erase any possible doubt about the plain
meaning of RCW 49.60.210(1) and make it clear that ESD IVl's interpretation is
not what the legislature intended.
WLAD's purpose is plain: the "elimination and prevention of discrimination
in employment, in credit and insurance transactions, in places of public resort,
accommodation, or amusement, and in real property transactions." RCW
49.60.010. As relevant to this case, the right to be free from invidious
discrimination includes "[t]he right to obtain and hold employment without
discrimination." RCW 49.60.030(l)(a). Such discrimination in hiring and
employment based on protected characteristics "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. The overarching importance of
eradicating such discrimination requires that WLAD's provisions "be construed
liberally for the accomplishment ofthe purposes thereof." RCW 49.60.020.
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It is well recognized that WLAD,like other laws prohibiting discrimination
based on protected characteristics, relies heavily on private individuals for its
enforcement. Allison, 118 Wn.2d at 86. This reliance would be unrealistic, to say
the least, "if this court does not provide them some measure of protection against
retaliation." Id. at 94; see Burlington, 548 U.S. at 61-67(observing that if
anything, antiretaliation provisions should be interpreted more broadly than
provisions prohibiting discrimination based on protected characteristics in order to
effect their purpose); Robinson, 519 U.S. at 346 ("exclusion offormer employees
from the protection of[the statute] would undermine the effectiveness of Title VII
by allowing the threat of postemployment retaliation to deter victims of
discrimination from complaining"). And it would make little sense to hold that the
legislature intentionally undercut its own purposes in enacting WLAD by adopting
an antiretaliation provision that allows employers to compile an unofficial "do not
hire" list of individuals who have previously opposed discrimination against
themselves and others. However,that is exactly what ESD 171 claims it has the
right to do."* We cannot believe that the legislature intended to allow such blatant
^ At oral argument the court asked counsel for ESD 171,"You're saying the legislature
has decided that, and they've said that an employer can discriminate and not hire anyone who's
ever complained about, or testified on behalf of anyone who's been, mistreated in employment?"
Wash. Supreme Court oral argument, Jin Zhu v. N. Centr. Educ. Serv. Dist. -ESD 171, No.
94209-9(Sept. 12, 2017), at 39 min., 20 sec., audio recording by TVW,Washington State's
Public Affairs Network, http;//www.tvw.org. Counsel acknowledged that was its position.
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retaliatory discrimination in direct contravention of everything WLAD is meant to
accomplish.
RCW 49.60.210(1)'s plain language, read in context, does make retaliatory
refusal to hire an unfair practice, and RCW 49.60.030(2) plainly provides that any
person who has been subjected to an unfair practice has the right to bring a civil
cause of action. Therefore, Zhu's claim that ESD 171 refused to hire him in
retaliation for his prior opposition to Waterville's discriminatory practices stated a
viable cause of action in accordance with the plain language of WLAD. Because
there is no ambiguity, we need not reach ESD IVl's arguments about legislative
history, cases from other jurisdictions, and definitions of nonstatutory words.
The answer to the certified question is unambiguously yes.
B. Zhu is entitled to attorney fees
Because Zhu is the prevailing party, we grant his request for reasonable
attorney fees on review pursuant to RAP 18.1(a) and RCW 49.60.030(2). We
defer to the district court to determine the appropriate amount offees when it
enters final judgment for Zhu.
CONCLUSION
In accordance with the language, context, and purpose of WLAD,we hold
that RCW 49.60.210(1) prohibits prospective employers from engaging in
21
Jin Zhu V. ESD 171, No. 94209-9
retaliatory discrimination againstjob applicants. Therefore, the answer to the
certified question is yes.
22
Jin Zhu V. ESD 171, No. 94209-9
WE CONCUR:
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