Roberts v. Dudley

¶1(concurring) — I concur with the views expressed by Justice Sanders in the majority opinion he has crafted for the court. I write separately simply to indicate that, in my view, another and more powerful source of public policy against sex discrimination can be found in this state’s Equal Rights Amendment (ERA), Wash. *78Const, art. XXXI (amend. 61). Respondents and amici have argued that we should not consider the ERA as a relevant source of public policy, contending that it serves only to prevent sex discrimination by the State. Although I would observe that there is no case from this court that supports that argument, we need not resolve the issue because we are not called upon to enforce a right under our state’s constitution. Rather, we are called upon to determine the public policy of the State. I can think of no more appropriate place to glean a state’s fundamental policies than its state constitution. In that regard, I am in accord with the view expressed by the California Supreme Court when it ruled that sex discrimination in employment might support claim of tortious discharge in contravention of public policy. It said, “For our purposes here, however, whether article I, section 8 applies exclusively to state action is largely irrelevant; the provision unquestionably reflects a fundamental public policy against discrimination in employment — public or private — on account of sex.”15Rojo v. Kliger, 52 Cal. 3d 65, 801 P.2d 373, 389, 276 Cal. Rptr. 130 (1990).

¶2By the same token, our state’s ERA must be viewed as a clear statement of fundamental public policy against such discrimination. In light of this policy, which is also embodied in the statutes and case law that Justice Sanders references in the majority opinion, I feel entirely comfortable concurring in the result we reach.

¶3Johnson and Ireland, JJ., concur with Alexander, J.