# MacLean v. First Northwest Industries of America, Inc.

> Washington Supreme Court · November 25, 1981 · 96 Wash. 2d 338

URL: https://www.frixlaw.com/law-library/cases/9552859

## Case

- **Full name:** Bruce MacLean, Respondent, v. First Northwest Industries of America, Inc., Et Al, Petitioners
- **Court:** Washington Supreme Court
- **Decided:** November 25, 1981
- **Citations:** 96 Wash. 2d 338; 635 P.2d 683
- **Precedential status:** Published
- **Opinion:** Dissent by Utter
- **Judges:** Rosellini, Utter, Dolliver
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9552859

## How later opinions describe it (automated extraction)

- holding that “ladies’ night” with half-price tickets for women at an NBA game was a lawful way to increase attendance of female fans

## Opinion text

Utter, J.
(dissenting) — RCW 49.60, the Law Against Discrimination, bars gender-based price differentials regardless of the harm suffered. As that prohibition is absolute, the tried court's summary judgment was improper.
RCW 49.60.215 provides:
It shall be an unfair practice for any person or his agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the *349 admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, the presence of any sensory, mental, or physical handicap, or the use of a trained dog guide by a blind or deaf person: . . .
It is like RCW 49.60.040 in that both fail to mention sex. But, regarding RCW 49.60.040, the majority concludes the omission must have been inadvertent and accordingly reads it into that statute.
As both statutes are directed at substantially the same class of persons, and use substantially the same language, RCW 49.60.215 must also apply to sexual discrimination. Such is required by the majority's discussion of RCW 49.60.040. It is required to effectuate the purposes of RCW 49.60.
RCW 49.60 was designed to eliminate gender discrimination. Washington Water Power Co. v. State Human Rights Comm'n, 91 Wn.2d 62, 66 , 586 P.2d 1149 (1978); RCW 49.60.010. It objective is like that of public accommodation laws generally. Their purpose "is to make equal access to [public] places ... a public right." (First italics mine.) Caldwell, State Public Accommodations Laws, Fundamental Liberties and Enforcement Programs, 40 Wash. L. Rev. 841 , 842 (1965). Regarding our statutes, we have said that they confer "upon all persons . . . the right to be admitted to the places enumerated on equal terms ..." (Italics mine.) Anderson v. Pantages Theatre Co., 114 Wash. 24, 28 , 194 P. 813 (1921); and "that a person may recover damages if he is denied the full privileges of" any public place. Randall v. Cowlitz Amusements, Inc., 194 Wash. 82, 83-84 , 76 P.2d 1017 (1938).
Given that purpose, its repeated pronouncement in our cases, and the gender references in companion statutes, both RCW 49.60.215 and RCW 49.60.040 must require equal sexual treatment. As such, RCW 49.60.215 expressly bars gender-based price differentials, while RCW 49.60- *350 .030(1)(b) and RCW 49.60.040 do so impliedly.
RCW 49.60.030(1) (b) states:
(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical handicap is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;
And "full enjoyment" is defined in RCW 49.60.040 as including:
the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, or with any sensory, mental, or physical handicap, or a blind or deaf person using a trained dog guide, to be treated as not welcome, accepted, desired, or solicited;
The majority reads those two statutes as barring only conduct which makes a person feel unwanted. But RCW 49.60.030 uses the phrase "include, but not be limited to"— a phrase that is inconsistent with such a reading. The word "include" is, by itself, an inclusive, not an exclusive, term; and certainly when used in the above phrase. In the context of these statutes, it is not intended to be a limitation on their scope, but rather only to illustrate possible applications. The scope of RCW 49.60.030 is thus broader than that suggested by the majority. In fact, the statute supports an unqualified right to be free of all sexual discrimination.
And, contrary to the majority's assertion, that right is not dependent upon proof of actual damages. 5 RCW 49.60- *351 .030(2), the remedy provision, provides:
Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney's fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964;
It does not require actual damages; it simply provides that they may be recovered, if present. It provides for either actual damages or an injunction. Nowhere does it suggest that the latter is conditioned upon the presence of the former.
No actual damages are required because, as recognized by RCW 49.60.010, gender discrimination can be per se injurious. The legislature has determined that such discrimination injures not only the victim but the state and the public in general. RCW 49.60.010 states:
This chapter shall be known as the "law against discrimination". It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical handicap are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.
No tangible injury to the victim is necessary, for the State's interest by itself justifies any warranted legal challenge.
*352 In Davis v. Department of Labor & Indus., 94 Wn.2d 119 , 615 P.2d 1279 (1980), that principle was applied. There, an employer sexually discriminated against a woman seeking a promotion. Though there had been discrimination, no damages were awarded because, notwithstanding the disparate treatment, "she would not have been selected over the other two qualified persons." Davis , at 122. There was a violation of RCW 49.60, though the victim suffered no personal loss. The case reflects the principle that sexual discrimination harms the state generally and, as such, can be attacked despite an injury-free victim.
In Browning v. Slenderella Sys., 54 Wn.2d 440, 443 , 341 P.2d 859 (1959), that principle again, but less clearly, appears. There, a beauty salon subtly refused to serve a black woman. She sued for damages for '"embarrassment, humiliation, mental anguish and emotional shock'." This court, though finding discrimination, concluded that she had not suffered any compensable emotional distress. Notwithstanding that, it awarded her nominal damages of $100, which, suggests one commentator, was a penalty, not compensation. Note, Torts — Violation of Civil Rights — Dam ages, 35 Wash. L. Rev. 245 , 247-48 (1960). And, even if actual damages were required, they are present in this case. Actual damages include noneconomic injury, such as injury to one's psyche and to interpersonal relationships. See Anderson, supra; Browning, supra.
Respondent alleges that the "ladies' night" promotion made him feel like his wife's "keeper" and injured his psychic well-being. Such allegations, had respondent been allowed to prove them, could establish actual damage. But, more importantly, respondent should have been allowed to show that he could suffer actual injury because of the stereotype created by such promotions.
There has been testimony that a "ladies night" reinforces the stereotype that women are unathletic, improvident, and silly. B. Babcock, A. Freedman, E. Norton & S. Ross, Sex Discrimination and the Law 1061, at 1069 (1975), citing New York City Commission on Human Rights, hearings *353 Jan. 14, 1971. It can suggest that they, as a class, have an antipathy to sports and that, absent an economic "bribe," they will not attend.
By granting the summary judgment, the trial court precluded respondent from establishing any actual damage. Because his allegations are sufficient to create a genuine issue of fact, and since RCW 49.60 is applicable to gender-based price differentials, a summary judgment was, I believe, inappropriate. 6
For these reasons, I dissent.
Dimmick, J., and Ryan, J. Pro Tern., concur with Utter, J.
The majority concludes that RCW 49.60 is inapplicable because, under community property principles, respondent suffered no economic harm. The problem with that approach is illustrated by the following hypothetical. Suppose a hus *351 band and a wife have similar jobs at the same company and each is qualified for a promotion to a higher salaried position. Further, suppose that the wife gets the promotion solely because of her sex. Under the majority's approach, since the marital community receives the same economic benefit regardless of who is promoted, RCW 49.60 would not apply. Yet, in light of the legislative declarations, see RCW 49.60.010, such discrimination is patently antithetical to RCW 49.60.
As there is a bona fide RCW 49.60 issue, it is unnecessary to fully address the applicability of the state ERA. However, that provision, for the reasons given by Justice Dolliver, does prohibit gender-based promotions.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552859. Public record. Not legal advice.