Washington Law Review


Brian Hersey


In Roberts v. Dudley, the Supreme Court of Washington dramatically expanded the previously narrow public policy exception to the employment-at-will doctrine and created a dangerous precedent. The court held that small employers, explicitly exempt from the Washington Law Against Discrimination (VLAD), could be liable at common law for the tort of wrongful discharge in violation of Washington's public policy against sex discrimination as found in the WLAD. The tort of wrongful discharge in violation of public policy requires a finding of a "clear mandate of public policy." This Note argues the court should not have found in the WLAD a mandate of public policy sufficiently clear to support the common law tort claim. The court disregarded the plain language of the WLAD, the relevant legislative history, and its own precedent. In dissent, Justice Madsen identified flaws in the majority's reasoning, but failed to acknowledge that the WLAD's small-employer exemption cannot block a common law claim based outside of the WLAD. Therefore, although the court's ultimate conclusion was correct, its use of the WLAD to support an action against an employer expressly exempted by the WLAD threatens other exempted groups and invites the usurpation of legislative power.

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