I agree with the majority that RCW 49.60.030 does not provide a cause of action for age discrimination for an independent contractor; however, I arrive at this conclusion by an alternate route.
In Marquis v. City of Spokane, this court held that an independent contractor who is discriminated against in the making or performance of a contract for employment has a cause of action for violation of the right to be free from discrimination found in RCW 49.60.030(1). Marquis v. Cityof Spokane, 130 Wn.2d 97, 922 P.2d 43 (1996). The statute at issue inMarquis, RCW 49.60.030(1), specifically enumerates classes of persons entitled to be free of discrimination, and includes "race, creed, color, national origin, sex, or the *Page 30 presence of any sensory, mental, or physical disability." It also provided that the right to be free of discrimination under RCW 49.60.030(1) "shall include, but not be limited to: (a) [t]he right to obtain and hold employment without discrimination [and then other rights are listed]." (Emphasis added.) The court in Marquis relied on the expansive terms "shall include, but not be limited to" as the basis for its conclusion that an independent contractor has a cause of action for discrimination based on sex, one of the classifications protected under section .030(1).
The plaintiffs, relying on Marquis, urge this court to similarly find that they have an independent contractor cause of action, although here for age discrimination against the City of Chelan. Neither Marquis nor the statute supports such a result. The key difference between Marquis, which found a cause of action for an independent contractor, and this case, is that the claim here does not involve the rights of any persons enumerated in RCW 49.60.030(1). Unlike Marquis, which concerned a class of persons specifically defined as having the rights listed in RCW49.60.030(1), i.e., those alleging discrimination based upon `sex', this case involves an independent contractor who alleges age discrimination based on the City of Chelan's refusal to renew a concessionaire's contract between the plaintiffs and the City.
"Age" is not a protected class listed in RCW 49.60.030(1). Indeed, this court expressly noted in Marquis that "RCW 49.60.030(1) does not include age or marital status within the enumerations of protected classes."Marquis, 130 Wn.2d at 106 n. 3. Because the plain language of RCW49.60.030(1) does not include persons alleging age discrimination, a person claiming age discrimination cannot claim rights arising under RCW49.60.030(1) through the expansive language "shall include, but not be limited to."
The "shall include, but not be limited to" language in section .030(1) was critical to the decision reached by this court in Marquis. This broad listing of rights, the court reasoned, is by its terms not exclusive, and thus leaves *Page 31 uncertainty as to all the rights encompassed. The court said, "RCW49.60.030(1) is unambiguous to the extent that it sets forth anonexclusive list of rights. However, the statute is unclear to the extent that it makes a broad statement of rights, without defining the scope of those rights." Marquis, 130 Wn.2d at 107. Accordingly, the court resorted to principles of statutory construction to determine whether a cause of action for sex discrimination existed for an independent contractor who had contracted to serve as the golf professional at a city golf course. The court looked to the purpose section of chapter 49.60 RCW, RCW 49.60.010, as well as the provision for liberal construction set out in RCW 49.60.020. Marquis, 130 Wn.2d at 108-09. The court also examined federal cases under Title VII, concluding that unlike Title VII, state law against discrimination contains a broad statement of the right to be free of discrimination in RCW 49.60.010. Marquis,130 Wn.2d at 109-11. Finally, the court gave great weight to the view of the Human Rights Commission, the agency charged with administration, that an independent contractor is not protected under RCW 49.60.180 with regard to unfair practices in employment, but does have such protection under RCW 49.60.030(1), with that civil right enforceable through an action brought under RCW 49.60.030(2). Marquis, 130 Wn.2d at 111-12 (quoting and discussing WAC 162-16-170). The court concluded that although the plaintiff in Marquis was not an "employee" within the meaning of chapter 49.60 RCW, she nevertheless was entitled to bring a sex discrimination action against the City as an independent contractor based on the language of section .030(1).
By its clear language, RCW 49.60.030(1) does not include discrimination based upon "age" within the classifications of persons discriminated against. Because the class ("age") is not included, there are no rights to be free of age discrimination within the inclusive language of section .030(1) and, therefore, no relevant ambiguity to resolve under principles of statutory construction, as there was in Marquis. Accordingly, there is no cause of action in this case arising from RCW 49.60.030(1), unlike inMarquis. *Page 32
However, RCW 49.60.030(2) does provides a cause of action for "[a]ny person deeming himself or herself injured by any act in violation of thischapter" to enjoin further violations or to recover actual damages or both. RCW 49.60.030(2) (emphasis added). The words "this chapter" in section .030(2) clearly refer to chapter 49.60 RCW. Therefore, under RCW49.60.030(2), there may be a cause of action for age discrimination, provided the acts complained of constitute conduct proscribed by the chapter.
While there are no rights respecting age discrimination in RCW49.60.030(1), there are other provisions in chapter 49.60 RCW that do set out acts of age discrimination. RCW 49.60.180 sets out unfair practices of employers, including refusing to hire because of age, discharging or barring any person from employment because of age, and discrimination in compensation or other terms and conditions of employment because of age. By its terms, RCW 49.60.180 defines violations of chapter 49.60 RCW committed by employers.30
Plaintiffs were not employees, and the City of Chelan was not their employer, as they affirmatively state: "Under the [concession] contract, the Kilians were self-employed proprietors of a concession business in the City. They were not employees of the City." Pl. [s] Opening Br. at 2; see Marquis, 130 Wn.2d at 110. Thus, they do not allege any violation of RCW 49.60.180. Moreover, as the federal district court correctly ruled, they are barred by RCW 49.60.180 from bringing an age discrimination claim unless the alleged unfair practice also violates RCW49.44.090. That statute is brought within the scope of chapter 49.60 RCW by RCW 49.60.205, which states that "[n]o person shall be considered to have committed an unfair practice on the basis of age discrimination unless the practice violates RCW 49.44.090." RCW 49.44.090 provides in relevant part: *Page 33
It shall be an unfair practice:
(1) For an employer or licensing agency, because an individual is forty years of age or older, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment. . . .
(2) For any employer, licensing agency or employment agency to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses any limitation, specification or discrimination respecting individuals forty years of age or older. . . .
Thus, like RCW 49.60.180, RCW 49.44.090 permits an age discrimination claim in the employee-employer, licensing and employment agency settings.
The only other relevant provisions of chapter 49.60 RCW pertaining to age discrimination that are cited by plaintiffs are RCW 49.60.010 and .020. The first of these is a general policy statement. As the majority properly points out, this section does not set forth a cause of action; instead, it serves as a guide in determining the intended effect of operative sections of the chapter. Majority at 8 (citing Oliver v.Harborview Med. Ctr., 94 Wn.2d 559, 565, 618 P.2d 76 (1980)); see alsoCity of Moses Lake v. Grant County, 39 Wn. App. 256, 261, 693 P.2d 140 (1984) ("where the Legislature prefaces an enactment with a statement of purpose, that declaration, while serving as a guide in comprehending the intended effect of operative sections, nevertheless, is without operative force.") The second, RCW 49.60.020, provides that chapter 49.60 RCW is subject to the rule of liberal construction, but in and of itself does not provide for a cause of action, either.
It is clear that the Legislature did not intend to include age in RCW49.60.030(1). The Legislature has amended RCW 49.60.030 a dozen times beginning in 1957, and has not chosen to include "age" within RCW49.60.030(1) on any *Page 34 of those occasions. By way of contrast, in 1971 the Legislature added "sex" as a class protected from unfair practices in employment to RCW49.60.180. LAWS OF 1971, Ex. Sess. ch. 81, § 3. It added "sex" as a class to RCW 49.60.030(1) in 1973. LAWS OF 1973, 1 Ex. Sess., ch. 141, § 3. In 1973, the Legislature added "the presence of any sensory, mental, or physical handicap" to RCW 49.60.180. LAWS OF 1973, 1st Ex. Sess., ch. 214, § 6.31 At the same time, the Legislature added the same language to RCW 49.60.030(1). LAWS OF 1973, 1st Ex. Sess., ch. 214, § 3.
"Age" was added to the class protected under RCW 49.60.180 in 1961. LAWS OF 1961, ch. 100, § 1. It was added to RCW 46.60.010 and to RCW49.60.020 in 1973. LAWS OF 1973, ch. 141, §§ 1, 2. However, "age' has never been added to the enumerated classes protected under RCW49.60.030(1), despite the fact the statute has been amended eleven times since "age" was added to RCW 49.60.180.32 When the Legislature has intended that a class be protected under RCW 49.60.030(1), it has amended the statute to include that class, as it did for "sex" within two years of including it in RCW 49.60.180, and as it did when it included "handicaps" (later disabilities) in both statutes in the same year.
This court should not presume the Legislature simply overlooked including "age" as a classification entitled to protection under RCW49.60.030(1). The Legislature has very deliberately acted to include other classifications in RCW 49.60.030(1) when it has included them elsewhere in chapter 49.60 RCW, but, despite adding "age" to RCW 49.60.180 in 1961, and to RCW 49.60.010 and .020 in 1973, it has never included `age' in RCW 49.60.030(1). I would *Page 35 not rewrite the statute to include a class the Legislature has not included.
Because there are no alleged facts that would constitute a violation of any of the provisions of chapter 49.60 RCW, plaintiffs have no cause of action under RCW 49.60.030(2). Therefore, to answer the certified question, plaintiffs have no cause of action under RCW 49.60.030. With this clarification, I respectfully concur in the majority opinion.
ALEXANDER, C.J., and JOHNSON, J., concur with MADSEN, J.