(concurring) — For the reasons stated in my dissenting opinion in Marquis v. City of Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996), I concur in the majority opinion. My concern, however, is the disparate result which the court has created by reaching a different result here than in Marquis.
Without commenting on the propriety of the claim, I wish to point out that Ms. Griffin went forward on a claim for wrongful termination in violation of public policy which the jury ultimately rejected. Although Justice Talmadge criticizes the majority for giving employers the "freedom to discriminate,” he overlooks the fact that Ms. *71Griffin was permitted to take her claim for discrimination to the jury based on a violation of public policy against discrimination as embodied in RCW 49.60. Jury Instruction No. 8 stated:
In order to find a violation of a clear mandate of public policy it need not be shown that a particular law has been violated, but only that defendant’s conduct reasonably appeared to violate the letter or purpose of the law. Plaintiff claims that defendant’s conduct reasonably appeared to violate the letter or purpose of the State Law Against Discrimination which prohibits practices of sexual harassment and retaliation in employment.
Jury Instruction No. 9 stated:
The State Law Against Discrimination which prohibits sexual harassment is violated when:
(1) an employee is subjected to harassing conduct of a sexual nature which is unwelcome to her, in that the employee did not solicit or incite the conduct, and the employee regarded the conduct as undesirable or offensive;
(2) the harassing conduct was motivated by gender; and
(3) the harassing conduct affected the terms and conditions of the employee’s employment.
Jury Instruction No. 10 stated:
The State Law Against Discrimination which prohibits retaliation is violated when:
(1) the employer knew the employee had opposed or had resisted sexually harassing behavior;
(2) the employer took adverse action against the employee; and
(3) retaliation was a substantial factor motivating the employer’s action.
Proximity in time between the opposition or resistance to the sexually harassing behavior and the adverse action is one factor which can be relevant to determining the employer’s motivation.
*72The jury rejected Ms. Griffin’s claim. In response to a special verdict, the jury was asked: "Question No. 1: Did the defendant wrongfully terminate the plaintiffs employment in contravention of a clear mandate of public policy?” Clerk’s Papers, Special Verdict Form A. The jury answered "no.” Id. No appeal was taken on this issue.
Whether rightly or not, Ms. Griffin pursued a private cause of action such as the dissent advocated. The difference is that she would not have been entitled to the attorney fees provided in RCW 49.60 had she prevailed.
In fairness, the Legislature should provide a statutory cause of action to redress employment discrimination, whether a worker is a family member, employed by an employer with fewer than eight employees, or is a private contractor. This court, however, is not the body charged with establishing statutory causes of action.