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Muller v. BP Exploration Inc. (9/13/96), 923 P 2d 783
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BAMBI (RELKIN) MULLER and )
LOWELL RELKIN, ) Supreme Court No. S-7128
)
Plaintiffs, ) United States District Court
) No. A93-109 CV (JKS)
v. )
)
BP EXPLORATION (ALASKA) INC., ) O P I N I O N
)
Defendant. ) [No. 4402 - September 13, 1996]
______________________________)
Certified Question from the United States
District Court for the District of Alaska,
James K. Singleton, Jr., Judge.
Appearances: Harry Relkin, pro se,
Albuquerque, New Mexico, and Ben J. Esch,
Garretson & Esch, Anchorage, for Plaintiffs.
Katherine C. Tank, Perkins Coie, Anchorage,
for Defendant.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice, pro tem.
EASTAUGH, Justice.
COMPTON, Chief Justice, dissenting.
I. INTRODUCTION
We here consider the effect of the marital status anti-
discrimination clause in AS 18.80.220(a)(1). After an unmarried
couple sued their former employer, the United States District Court
for the District of Alaska certified to us the following two
questions: whether AS 18.80.220(a)(1) prevents an employer from
discriminating against an employee "based on the identity of his
spouse,"and whether AS 18.80.220(a)(1) is limited to preventing
employers from discriminating based on the status of being married.
We answer these questions "no,"and "yes,"respectively. Although
AS 18.80.220(a)(1) prevents employers from discriminating based on
the marital status of their employees, it does not prevent
discrimination based on the identity of the employee's spouse or
future spouse.
II. FACTS AND PROCEEDINGS
Bambi (Relkin) Muller and Lowell Relkin sued BP
Exploration Alaska, Inc. (BP) in 1993 in the Alaska superior court,
alleging that BP had unlawfully discriminated against them in
violation of AS 18.80.220(a)(1). (EN1) BP removed the case to the
United States District Court for the District of Alaska on the
basis of diversity of citizenship, and moved for summary judgment.
The district court granted summary judgment to BP on all
claims, except plaintiffs' claim of "marital status"
discrimination. Recognizing that there was no controlling Alaska
decisional precedent, the district court certified the following
questions to us pursuant to Alaska Appellate Rule 407(a): (EN2)
Does Alaska's marital discrimination law,
[AS] 18.80.220, apply to prevent an employer
from discriminating against an employee based
on the identity of his spouse, or future
spouse, or is the statute limited to
preventing employers from discrimination based
on the status of being married, or about to be
married?
We agreed to answer these questions.
The district court found the following facts:
This case arose after Plaintiffs resigned
from their respective jobs with British
Petroleum ("BP"). Plaintiff Lowell Relkin
("Relkin") had been working at BP since 1985
as an A Tech Production Operator. A
production technician or operator controls the
production of oil "from the reservoir to the
gathering centers and is responsible for all
associated equipment and piping between those
two points."
In the fall of 1989, BP implemented a
program to train new production operators.
The four-year program was designed to take
someone with no experience in oil production
and train them to become E, D, C, B, and,
ultimately, an A Tech Production Operator.
The training program was to commence with six
months of basic training or classroom
instruction, to be followed by rotations in
the field on an assigned crew under production
operator mentors. Relkin was selected to
coordinate the new operator training program
about November of 1989. This placement, which
was a promotion, was meant to be temporary.
Bambi (Relkin) Muller ("Muller") was
working for BP in an administrative capacity
in Anchorage when she applied to become a
trainee. The training program was a step up
for Muller. In about February, 1990, Muller
and nine others were chosen for the training
program, and became known as E Tech Production
Operator Trainees. At the time of the
selection process, Relkin and Muller did not
know each other.
In the spring of 1990, the classroom
portion of the training program began. In
November, Muller, along with four others, were
assigned to the A shift during the day.
Within two months of the beginning of the
training program, Relkin and Muller began to
develop a romantic relationship. Plaintiffs
informed BP of the relationship. BP informed
Plaintiffs that there was no problem with
their relationship and that no policy existed
forbidding such a relationship. Plaintiffs
were informed, however, that if the
relationship led to marriage, Relkin may have
to step down as training coordinator. (EN3)
The policy given to employees (employee
handbook) stated that no discrimination based
on marital status would exist. However, the
supervisors['] manual contained BP's anti-
nepotism policy which prohibited married
persons from supervising one another.
Plaintiffs were engaged approximately
four months later. In September of 1990,
Relkin was allegedly informed that he would be
removed as training coordinator because of the
engagement. Additionally, Relkin, immediately
following his removal as training coordinator,
was placed temporarily on the night shift
while Muller remained in classroom training on
the day shift. Under normal shift rotations,
Plaintiffs would have worked the same shift
approximately fifty percent of the time.
Relkin inquired into why he and Muller could
not work the same shift. Relkin agreed to a
demotion and a distant position as long as he
and Muller could have the same hours. BP's
Production Manager, Barney Dotson ("Dotson"),
allegedly informed Plaintiffs that he would
never allow them to work the same shift and if
they kept asking, Relkin would be terminated.
Relkin then allegedly learned from his
immediate supervisor, Mel Pye ("Pye"), that
the supervisors were threatened with
termination if they allowed Plaintiffs to work
the same twelve hour shift. Then, during
meetings with the Human Resources Department
management, Plaintiffs were allegedly told
that BP management was "out to get"
Plaintiffs.
On November 6, 1990, Plaintiffs entered
BP's grievance process and grieved Relkin's
demotion, management's decision not to allow
them to work the same twelve hour shift, and
discriminatory practices based on
Plaintiffs['] personal relationship. At the
first level, the grievance was decided against
the Plaintiffs. Plaintiffs then continued the
grievance to level II of V. Level II led to a
grievance settlement. The settlement provided
that: (1) Relkin would step down as training
coordinator; (2) a new rotation schedule would
be created for the trainees which would allow,
in three months, Relkin and Muller to be on
the same twelve hour shift (the new schedule,
like the old one, provided that changes could
be made for operational reasons) and
thereafter be treated as any other employee;
(3) the grievance would be considered settled;
and (4) upon a regular rotation, Relkin would
be Muller's mentor.
Thereafter, the agreed rotation schedule
went into effect. About two and a half months
later, on February 24, 1991, BP informed the
trainees and mentors that implementation of
the second rotation, which was to begin four
days later, would be delayed. BP says the
reason for the delay was a shortage of mentors
and a request by the trainees that the
rotation be delayed until after they took an
April exam. Plaintiffs hold that BP informed
them personally that the settlement agreement
would not be honored.
On the evening of February 23, 1991,
Relkin reported to the medic with a stress
related illness and was ordered to bed rest by
BP medical staff. Relkin, on February 25,
1991, attended a letter of reprimand meeting
in which he was presented with a letter of
reprimand outlining deficiencies in Relkin's
work, aptitude, and ability to get along with
others. Relkin admitted to some of the facts
in the letter but denied any wrongdoing.
Relkin did not grieve the letter of reprimand.
Relkin and Muller did not grieve the delay in
implementing the rotation schedule.
At the end of the February 25, 1991,
meeting, Relkin submitted his resignation. On
the same day, Muller submitted her
resignation. Shortly after the April exam,
the agreed upon rotation schedule went into
effect.
At oral argument before us, their counsel asserted that Muller and
Relkin were co-employees, and that although initially Relkin was
Muller's supervisor, ultimately neither was in a supervisory
position over the other. BP did not dispute that characterization
of the facts.
III. DISCUSSION
The meaning of the term "marital status"in AS
18.80.220(a)(1) presents an issue of first impression in Alaska.
Muller and Relkin ask us to interpret the term "expansively,"to
prohibit employment discrimination based on the identity of one's
spouse, not just on the condition of being married or unmarried.
They argue that an expansive interpretation of "marital status"is
suited to preventing the discriminatory practices contemplated by
the Alaska legislature in enacting the Alaska Human Rights Act
(AHRA). BP responds that elementary principles of statutory
interpretation and considerations of public policy require that
"marital status"be interpreted in accordance with the plain
meaning of that term.
Alaska Statute 18.80.220 provides in relevant part:
(a) It is unlawful for
(1) an employer to refuse employment to
a person, or to bar a person from employment,
or to discriminate against a person in
compensation or in a term, condition, or
privilege of employment because of the
person's race, religion, color or national
origin, or because of the person's age,
physical or mental disability, sex, marital
status, changes in marital status, pregnancy
or parenthood when the reasonable demands of
the position do not require distinction on the
basis of age, physical or mental disability,
sex, marital status, changes in marital
status, pregnancy or parenthood.
However, AS 18.80.220 does not define the term "marital
status." We use our independent judgment to determine what the
legislature intended by this term. Alaska State Comm'n for Human
Rights v. State, 796 P.2d 458, 460 (Alaska 1990) (holding that
Commission's interpretation of AS 18.80 is reviewed de novo).
Other jurisdictions that have considered whether
prohibiting employment discrimination based on "marital status"
precludes discrimination based on the identity of a person's spouse
are split. Some courts considering this issue have construed
"marital status"to mean the condition of being married based on
the plain meaning of the term. Maryland Comm'n on Human Relations
v. Greenbelt Homes, Inc., 475 A.2d 1192 (Md. 1984); Whirlpool Corp.
v. Michigan Civil Rights Comm'n, 390 N.W.2d 625 (Mich. 1986);
Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal
Bd., 415 N.E.2d 950 (N.Y. 1980). Others have construed "marital
status"as having a more expansive meaning, in furtherance of
perceived legislative intent. Ross v. Stouffer Hotel Co., 816 P.2d
302 (Haw. 1991); River Bend Community Unit Sch. Dist. No. 2 v.
Human Rights Comm'n, 597 N.E.2d 842 (Ill. App. 1992); Kraft, Inc.
v. State, 284 N.W.2d 386 (Minn. 1979); Thompson v. Board of
Trustees, 627 P.2d 1229 (Mont. 1981); Washington Water Power Co. v.
Washington State Human Rights Comm'n, 586 P.2d 1149 (Wash. 1978).
Many of these decisions are the products of closely divided courts.
A. Statutory Interpretation
In construing the meaning of a statute, we look to the
meaning of the language, the legislative history, and the purpose
of the statute in question. "The goal of statutory construction is
to give effect to the legislature's intent, with due regard for the
meaning the statutory language conveys to others." Tesoro Alaska
Petroleum Co. v. State, 746 P.2d 896, 905 (Alaska 1987). "Because
this is a case of first impression in this state, '[o]ur duty is to
adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.'" Foreman v. Anchorage Equal Rights
Comm'n, 779 P.2d at 1201 (alteration in original) (quoting Guin v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
B. Plain Meaning
We have rejected a mechanical application of the plain
meaning rule in matters of statutory interpretation, and have
adopted a sliding scale approach instead. State v. Alex, 646 P.2d
203, 208-09 n.4 (Alaska 1982) (citing State, Dep't of Natural
Resources v. City of Haines, 627 P.2d 1047, 1049 n.6 (Alaska
1981)); see also North Slope Borough v. Sohio Petroleum Corp., 585
P.2d 534, 540 n.7 (Alaska 1978) ("We reject the so-called 'plain
meaning' rule as a strict exclusionary rule."). The plainer the
statutory language is, the more convincing the evidence of contrary
legislative purpose or intent must be. Anchorage Sch. Dist. v.
Hale, 857 P.2d 1186, 1189 (Alaska 1993); Alex, 646 P.2d at 208-09
n.4.
In assessing statutory language, "unless words have
acquired a peculiar meaning, by virtue of statutory definition or
judicial construction, they are to be construed in accordance with
their common usage." Tesoro Alaska, 746 P.2d at 905; Wilson v.
Municipality of Anchorage, 669 P.2d 569, 571-72 (Alaska 1983). The
most common meaning of "marital status"is the actual condition of
being married or unmarried. (EN4) The term refers only to the
state of being married, and does not extend to include the identity
of the person to whom one is married. (EN5) "The relevant inquiry
is if one is married rather than to whom one is married." Miller
v. C.A. Muer Corp., 362 N.W.2d 650, 653 (Mich. 1984).
Muller and Relkin contend that if the meaning of "marital
status"were "plain,"the district court would not have asked us to
interpret the term. In one sense this is true. If the term were
so plain that it could not reasonably permit the broad construction
they urge, that court would have had no reason to refer the issue
to us. We do not suggest that the broad construction is altogether
unreasonable, only that it stretches the meaning of the term
"marital status"beyond the limits of normal usage, which is the
sense in which we use the phrase "plain meaning."
We find that, in accordance with common usage, the plain
meaning of the term "marital status"is the condition of being
married or unmarried. We will apply this meaning absent convincing
evidence of a contrary legislative purpose. Anchorage Sch. Dist.,
857 P.2d at 1189.
C. Legislative History
The AHRA was first enacted in 1965. It was amended in
1975 to include a prohibition against discrimination in employment
on the basis of marital status or changes in marital status.
However, the legislative history of this 1975 amendment contains no
discussion of the meaning of "marital status,"or of any effect the
amendment might have on anti-nepotism laws.
The legislature's failure to discuss the specific meaning
and effect of the term "marital status"indicates that it did not
intend the term to include the identity of one's spouse. "It is
assumed that whenever the legislature enacts a provision, it has in
mind previous statutes relating to the same subject matter, and all
should be construed together." Hafling v. Inlandboatmen's Union of
the Pacific, 585 P.2d 870, 877 (Alaska 1978). If the legislature
had intended some meaning other than the plain meaning, the 1975
amendment would have merited a discussion of the exact meaning of
the term to be applied. Discussion also would have been merited
concerning the effect of the amendment on existing statutes,
including anti-nepotism laws.
In Manhattan Pizza Hut, Inc., 415 N.E.2d at 953, the
Court of Appeals of New York held that because of the dramatic
effect the more expansive definition of "marital status"would have
on anti-nepotism policies, the absence of legislative history
containing any discussion of what "marital status"includes
indicates that the legislature intended that the plain meaning of
the term apply. The court found that "[t]he importance of the
business and labor management concerns it seeks to serve belies the
likelihood that the Legislature would have struck a blow at
antinepotism policies with nary a word, in or out of the statute,
to express or explain its intention . . . ." Id.
Justice Wakatsuki of the Supreme Court of Hawaii agreed
with this analysis in his dissent in Ross v. Stouffer Hotel Co.,
816 P.2d 302, 304-05 (Haw. 1991). In finding that the plain
meaning of "marital status"should have been applied, he stated:
It is also significant that the legislative
history of HRS 378-2 omits any mention of the
issue before us. A prohibition of
discrimination on the basis of identification
of one's spouse covers a wide array of
personnel policies, including antinepotism
policies, policies against hiring the spouse
of a major business competitor, and policies
against having spouses in supervisor-
supervisee capacities. Such policies are
widespread and backed by valid reasons.
Id. at 305 (citing Manhattan Pizza Hut, Inc., 415 N.E.2d at 953).
Anti-nepotism and no-spouse policies have been adopted by
many businesses in Alaska. In addition, anti-nepotism statutes
prevent certain people from having supervisory positions over each
other in the Alaska state government. See, e.g., AS 24.60.090
(relative of legislator may not be employed by house of which
legislator is a member while it is in session, or by either house
in the interim, and relative of legislative employee may not be
employed in a position over which such person has supervisory
authority); AS 39.90.020 (unlawful for relative of "executive head
of a principal state department or agency to be employed in that
department or agency"); AS 14.14.140 (restricting employment by
schools of immediate family members of school board members and
chief school administrators). We have stated that "'[w]here a
reasonable construction of a statute can be adopted which realizes
the legislative intent and avoids conflict or inconsistency with
another statute this should be done.'" State v. Patterson, 740
P.2d 944, 948 (Alaska 1987) (quoting Gordon v. Burgess Constr. Co.,
425 P.2d 602, 604 (Alaska 1967)) (alteration in original).
Consequently, we find that the lack of discussion in the
legislative history supports a conclusion that the legislature
intended that "marital status"be interpreted according to its
plain meaning.
Muller and Relkin argue that these anti-nepotism laws
would not necessarily be invalidated under the more expansive
interpretation of the term "marital status,"because they would
come within the "reasonable demands"exception to AS
18.80.220(a)(1).
This statutory exception provides that employment
discrimination on the basis of otherwise forbidden criteria is
permissible if "the reasonable demands of the position require"
such a distinction to be made. However, this exception is
extremely limited. In McLean v. State, 583 P.2d 867, 869 (Alaska
1978), we held:
The only exception to the statutory
requirement prohibiting discrimination is that
discrimination . . . is permitted only "when
the reasonable demands of the position"
require distinctions [be made]. But this is
not an easy escape valve from the anti-
discrimination policy of the statute. . . .
The connotation we place on "demands"is that
of requirements or necessities that are of an
urgent nature. . . . Without such a
connotation, all but the most blatant
discriminatory plans would be excused even if
they perpetuated the effects of past
discrimination.
The state anti-nepotism laws cited above require that an
employee not be related to a person with influence over their
employment in certain government institutions. Assuming that the
legislature did intend the more expansive interpretation of
"marital status,"the anti-nepotism laws cited would require
discrimination based on the identity of one's spouse. Assuming
also that the desire to preserve the appearance and reality of
integrity in government institutions constitutes a "reasonable
demand"requiring that such a distinction be made, the statutes
would fall within the exception to AS 18.80.220(a)(1). See
Washington Water Power Co. v. Washington State Human Rights Comm'n,
586 P.2d 1149, 1154 (Wash. 1978) (stating of the Washington state
legislature's anti-nepotism statute that "[t]he need for the
'appearance of fairness' in this situation may well outweigh the
spouses' interest in obtaining employment unburdened by marital
status discrimination"). We consequently assume for the sake of
discussion that the statutory exception would avoid the resulting
conflict between the anti-nepotism laws and the prohibition against
discrimination that would result if "marital status"were given the
interpretation Muller and Relkin propose.
However, this would not alter our view of the legislative
history. We assume that if the legislature had intended the more
expansive meaning of "marital status,"it would have recognized and
discussed the potential conflict between the 1975 amendment and the
anti-nepotism laws and employment practices. Assuming also that
the legislature concluded that the statutory "reasonable demands"
exception applied, avoiding both the statutory conflict and the
invalidation of private employment practices, we nonetheless think
it most likely that the legislature would have discussed the
conflict and its resolution. Because the legislature engaged in no
such discussion, we interpret its silence as an indication that it
intended the plain meaning of the term to apply.
D. Purpose of the AHRA
In interpreting a statute, we also look to the language
of the statute in light of the purposes for which it was enacted.
Tesoro Alaska, 746 P.2d at 904.
In stating the purpose of AS 18.80, the legislature found
that discrimination against an inhabitant of
the state because of race, religion, color,
national origin, age, sex, physical or mental
disability, marital status, changes in marital
status, pregnancy or parenthood is a matter of
public concern and that this discrimination
not only threatens the rights and privileges
of the inhabitants of the state but also
menaces the institutions of the state and
threatens peace, order, health, safety, and
general welfare of the state and its
inhabitants.
AS 18.80.200(a). Alaska Statute 18.80 was enacted in order to
eliminate and prevent discrimination in
employment, in credit and financing practices,
in places of public accommodation, in the
sale, lease, or rental of real property
because of race, religion, color, national
origin, sex, age, physical or mental
disability, marital status, changes in marital
status, pregnancy or parenthood.
AS 18.80.200(b).
Muller and Relkin argue that an expansive interpretation
of "marital status"is more in keeping with the purposes of the
AHRA. They contend that interpreting "marital status"narrowly may
lead to results that do not protect married couples from employment
discrimination.
BP counters that the plain meaning of "marital status"
better comports with the purposes of the AHRA. We agree. The
purpose of the AHRA is to prevent prejudices and biases borne
against persons who are members of certain protected classes; it
seeks to eliminate the effects of offensive or demeaning
stereotypes, prejudices, and biases against the members of those
classes. (EN6) The more expansive interpretation of the term
"marital status"does not protect the members of the class, but
instead effectively enlarges it to include all persons wishing to
work with their spouses, thus invalidating any relevant anti-
nepotism policies.
Anti-nepotism policies exist to prevent "potential
emotional interference with job performance, collusion in grievance
disputes, favoritism, morale problems resulting from the appearance
of favoritism, and conflicts of interests that arise if an employee
is required to supervise the employee's spouse." Miller, 362
N.W.2d at 654. "Whether these reasons are valid in all
circumstances or not, they do not appear to reflect offensive or
demeaning stereotypes, prejudices, or biases." Id. Therefore,
interpreting "marital status"as plaintiffs propose would not
advance the AHRA's purpose of protecting class members from
prejudices or biases borne against them. See Whirlpool Corp., 390
N.W.2d at 626-27 (holding that the legislative intent behind the
Michigan Civil Rights Act was to prevent prejudice against persons
based on their membership in a particular class, and to eliminate
"the effects of offensive or demeaning stereotypes, prejudices, and
biases"; consequently, the no-spouse rule was not discrimination on
the basis of marital status, but instead was permissible "different
treatment based on the fact that one's spouse works in the same
place").
Similarly, we find that the purpose of AS 18.80.220 is to
prohibit discrimination against a person based on his or her
condition of being married or unmarried, not on the identity of
one's spouse. To whom one is married is not a class-defining
factor, unlike all the other factors listed in AS 18.80.220(a)(1).
Extending the reach of the anti-discrimination law to employment
decisions based on to whom a person is married would change the
focus of the law from discrimination based on broad categories,
which can give rise to demeaning stereotypes and biases, to a
highly individual factor. Thus, adopting Muller's and Relkin's
interpretation of "marital status"would be inconsistent with the
structure and purpose of the statute, because it would prohibit
discrimination based on individual rather than class factors.
We have held that "Alaska's civil rights statute should
be broadly construed 'to further the goal of eradication of
discrimination.'" Alaska USA Fed. Credit Union v. Fridriksson, 642
P.2d 804, 806 (1982) (holding that a nonprofit credit union was an
employer for purposes of AS 18.80, and thus subject to the
prohibition on sex discrimination) (quoting Wondzell v. Alaska Wood
Products, Inc., 601 P.2d 584, 585 (Alaska 1979)). We have also
held that "Alaska's anti-discrimination statute gives the [Alaska
Human Rights] Commission a more aggressive mandate than that held
[under federal law]." State v. Meyer, 906 P.2d 1365, 1372 (Alaska
1995). We have long recognized the strong statement of purpose of
AS 18.80, and "its avowed determination to protect the civil rights
of all Alaska citizens." Loomis Elec. Protection, Inc. v.
Schaefer, 549 P.2d 1341, 1343 (Alaska 1976) (holding that
compensatory and punitive damages are available as relief under AS
18.80). Accordingly, we conclude that the plain meaning of the
term "marital status"achieves the goal of AS 18.80.220 of
eradicating discrimination against a person based on the condition
of being married or unmarried, and thus best serves the purposes of
the AHRA.
:\ Public Policy
Muller and Relkin argue that the protection afforded by
the expansive interpretation of "marital status""comports with
Alaska's policy of encouraging marriage and family." They also
argue that a narrow interpretation will impinge upon an
individual's right to choose his or her own marital status
unimpaired by improper influences. (EN7) This right is a matter of
personal autonomy or freedom, which society has an interest in
protecting.
Muller and Relkin contend that the risk of having the
choice of marital status impaired by improper influences is
particularly strong in Alaska, where the job market is limited and,
in some places, dominated by one or a few employers. Muller and
Relkin characterize the relevant job market in the narrowest way
possible, saying: "plaintiffs had little choice but to be employed
by defendant BP on the North Slope of Alaska." If BP strictly
enforces its anti-nepotism policy, Muller and Relkin are "left . .
. with a Hobson's choice of [either] one of them giving up his or
her employment, or their [not getting married], and continuing
[their romantic relationship] and being employed in their chosen
occupation." Ross, 816 P.2d at 304; see also Kraft, Inc., 284
N.W.2d at 388; Manhattan Pizza Hut, Inc., 415 N.E.2d at 955 (Cooke,
C.J., dissenting).
The state has an interest in protecting a person's right
to choose the form that his or her relationships will take. It is
for precisely this reason that the AHRA prohibits discrimination on
the basis of whether one is married or unmarried. See Foreman, 779
P.2d at 1202-03 (holding AHRA prohibits discrimination against
unmarried cohabiting individuals). However, the state also has an
interest in protecting the interests of its businesses and
companies by allowing them to adopt reasonable employment policies.
Therefore, although a person's employment may be affected by the
identity of his or her spouse, that effect does not violate the
public policy that initially mandated Alaska's anti-discrimination
legislation. (EN8)
F. Agency Interpretation
The dissent asserts that the promulgation of 6 Alaska
Administrative Code (AAC) 30.990(a)(8) (1995) establishes that the
Human Rights Commission interprets the statutory marital status
protection to encompass the identity of one's spouse. (EN9)
Dissent at 28-29. The language of the regulation does not clearly
support such an interpretation. Given the absence of any
legislative history suggesting that the legislature intended the
reading Muller proposes, one would expect the agency to more
clearly and explicitly define the prohibition to prevent
discrimination based on the identity of one's spouse rather than
simply refer to "marriage to another person,"if that were the
reasoning the agency intended. However, even assuming that the
language of the regulation does support such an interpretation, the
regulation could not justify a statutory interpretation not
warranted by the statute's own language and legislative history.
(EN10) Consequently, such an interpretation by the Commission
would not be entitled to judicial deference.
IV. CONCLUSION
In answer to the certified questions, we hold that AS
18.80.220(a)(1) is limited to preventing employers from
discriminating against an employee based on the status of being
married, and does not prohibit an employer from discriminating
against an employee based on the identity of his or her spouse or
future spouse. Thus, we answer "no"to the question whether AS
18.80.220 prevents an employer from discriminating against an
employee "based on the identity of his spouse,"and "yes"to the
question whether AS 18.80.220 is limited to preventing employers
from discriminating based on the status of being married.
COMPTON, Chief Justice, dissenting.
In response to a certified question of law from the
United States District Court for the District of Alaska, see Alaska
R. App. P. 407, the court holds that AS 18.80.220(a)(1), which
prohibits discrimination based on, inter alia, marital status, "is
limited to preventing employers from discriminating against an
employee based on the status of being married, and does not
prohibit an employer from discriminating against an employee based
on the identity of his or her spouse or future spouse." Slip Op.
at 22. I think this conclusion runs counter to the letter and
spirit of the statute.
I.
The court suggests that the plain meaning of the term
"marital status"in AS 18.80.220 dictates the outcome, Slip Op. at
11, and I agree, but the outcome I see the plain meaning producing
is quite different from that the court reaches. Pursuant to
company policy, any BP employee who supervises a spouse or is
supervised by a spouse must be transferred or terminated. BP's
policy therefore discriminates based on marital status. When a BP
employee is transferred or terminated under the policy, it is the
employee's marital status which is the cause of the transfer or
termination. If the employee were to divorce or to remain single
and cohabit with the supervising or supervised employee, the
employee would not be subject to the policy. In other words,
marital status is the predicate for the discrimination. The policy
violates AS 18.80.220(a)(1).
Given this divergence of opinion, it must be conceded
that the meaning of "marital status"is far from plain. The close
split among jurisdictions considering the issue is proof enough of
this. I am more persuaded by those decisions which hold that
statutes banning discrimination based on "marital status"apply to
anti-nepotism policies. See Thompson v. Bd. of Trustees, 627 P.2d
1229, 1231 (Mont. 1981) ("But for the fact this plaintiff is
married, he would still be working. The term 'marital status' as
a protected classification in the statutes was included to cover
this type of unjustified discrimination."); Kraft, Inc. v. State,
284 N.W.2d 386, 387 (Minn. 1979) ("[A]n antinepotism employment
rule denying full time employment to individuals married to persons
already employed full time by the employer constitutes a
discriminatory practice based on marital status within the meaning
of the Minnesota Human Rights Act."); Washington Water Power Co. v.
Washington State Human Rights Comm'n, 586 P.2d 1149, 1153 (Wash.
1978) (agreeing with the Washington Human Rights Commission's
conclusion that "whether or not it is intended as such, the
discharge of an employee or the refusal to hire an applicant
because his or her spouse works for the employer necessarily
involves an examination of an employee's marital status and
therefore is discrimination based upon such status."); River Bend
Sch. Dist. v. Human Rights Comm'n, 597 N.E.2d 842, 846 (Ill. App.
1992) (School District's anti-nepotism policy "is clearly triggered
by a party's marital status and imposes a direct burden upon
marriage. A person who remains single would not be affected by the
rule.").
II.
In attempting to divine the legislature's intent, the
court places emphasis on the legislature's failure to discuss the
alleged conflict between the Human Rights Act and anti-nepotism
laws governing employment in state government. I am hesitant to
draw inferences from the legislature's silence. See Public
Defender Agency v. Superior Court, 534 P.2d 947, 952 (Alaska 1975)
("Legislative inaction may be evidence of intent, although it is
not always a reliable guide."); Brecht v. Abrahamson, 113 S. Ct.
1710, 1719 (1993) ("As a general matter, we are 'reluctant to draw
inferences from Congress' failure to act.'"(quoting Schneidewind
v. ANR Pipeline Co., 485 U.S. 293, 306 (1988)). (EN1)
In my opinion, construing AS 18.80.220(a)(1) to apply to
anti-nepotism policies gives effect to the legislature's intent.
In enacting the Alaska Human Rights Act, the legislature found that
discrimination based on marital status "is a matter of public
concern and . . . not only threatens the rights and privileges of
the inhabitants of the state but also menaces the institutions of
the state and threatens peace, order, health, safety, and general
welfare of the state and its inhabitants." AS 18.80.200(a). The
purpose of the Act is to prevent such discrimination. Id. at
.200(b). The narrow interpretation of marital status adopted by
the court runs counter to this purpose by forcing those subject to
anti-nepotism rules to choose between employment and marriage. See
Kraft, Inc., 284 N.W.2d at 388 ("Endorsing a narrow definition of
marital status and uncritically upholding an employment policy such
as respondent's could discourage similarly situated employees from
marrying. . . . Such an employment policy would thus undermine the
preferred status enjoyed by the institution of marriage."). A
broad construction of the term marital status avoids this "Hobson's
choice"and therefore furthers the purpose of the Act. See Alaska
USA Fed. Credit Union v. Fridriksson, 642 P.2d 804, 806 (Alaska
1982) (quoting Wondzell v. Alaska Wood Products, Inc., 601 P.2d
584, 585 (Alaska 1979) ("Alaska's civil rights statute should be
broadly construed 'to further the goal of eradication of
discrimination.'").
III.
The Alaska Human Rights Commission is charged with
adopting "procedural and substantive regulations necessary to
implement"the Alaska Human Rights Act. AS 18.80.050(a). While
the court exercises its independent judgment on issues of statutory
construction, the Commission's interpretation is entitled to "'some
weight.'" Peninsula Marketing Ass'n v. State, 817 P.2d 917, 922
(Alaska 1991) (quoting State, Dep't of Revenue v. Alaska Pulp
America, Inc., 674 P.2d 268, 274 (Alaska 1983). (EN2)
The Commission has defined discrimination based on
marital status to include "unjustified adverse action taken against
a person because that person is single, married, widowed or
divorced, or because of that person's marriage or termination of
marriage to another person." 6 AAC 30.990(a)(8) (emphasis added).
In construing statutes or regulations, it is presumed that "every
word, sentence, or provision . . . [has] some purpose, force, and
effect, and that no words or provisions are superfluous." Rydwell
v. Anchorage Sch. Dist., 864 P.2d 526, 530-31 (Alaska 1993). The
first portion of the Commission's definition ("adverse action taken
against a person because that person is single, married, widowed or
divorced") covers what the court calls "the condition of being
married or unmarried." Slip Op. at 11. For the second portion of
the definition to be more than superfluous, it can only mean that
marital status encompasses the identity of one's spouse. BP's
policy violates 6 AAC 30.990(a)(8).
IV.
It is not the case, as the court asserts, that extending
the protection of AS 18.80.220(a)(1) to cover the identity of one's
spouse will necessarily "invalidat[e] any relevant anti-nepotism
policies." Slip Op. at 17. A distinction based on marital status,
or on any other protected category, is allowed "when the reasonable
demands of the position"require it. AS 18.80.220(a)(1). The
Commission has established guidelines for enforcing this provision:
It is a defense to a complaint of unlawful
discrimination to establish by clear and
convincing evidence that a distinction in
employment prohibited by AS 18.80.220(a)(1) is
required by business necessity or the
reasonable demands of the position. "Business
necessity"or "reasonable demands of the
position"means that the distinction is
necessary to the safe and efficient operation
of the business; the business purpose is
sufficiently compelling to override any
disproportionate impact on an individual
protected by AS 18.80.220(a), and the
challenged business practice efficiently
carries out the business purpose it is alleged
to serve, and there is no available or
acceptable policy or practice which would
better accomplish the business purpose
advanced or accomplish it equally well with
less discriminatory impact on the complainant.
6 AAC 30.910(c). This procedure for proving "business necessity"
comports with practices in other jurisdictions. See, e.g., River
Bend Sch. Dist., 597 N.E.2d at 846 (placing the burden on the
employer to show that one spouse was unable to effectively
supervise another, and noting that the business necessity exception
"is a narrow one."); Kraft, Inc., 284 N.W.2d at 388 ("[O]nly where
a business necessity is compelling and overriding may an employer
differentiate on the basis of marital status. . . . Mere business
convenience is insufficient."). While the standard is exacting, it
nevertheless allows for some exception to the strict anti-
discrimination rule in AS 18.80.220(a)(1).
V.
I would respond to the certified question as follows: AS
18.80.220(a)(1) prevents an employer from discriminating against an
employee based on the identity of the employee's spouse, unless the
employer can prove that the reasonable demands of the position
require a distinction based on marital status.
ENDNOTES:
1. Muller and Relkin were formally engaged at the time the cause
of action arose. It is not clear whether they have since married.
However, the issue of their subsequent marriage is not relevant to
this discussion. We have held that the prohibition against
discrimination on the basis of marital status protects the rights
of unmarried couples. Foreman v. Anchorage Equal Rights Comm'n,
779 P.2d 1199, 1203 (Alaska 1989). Furthermore, the parties do not
dispute that Muller and Relkin became engaged while they were
employees at BP, nor do they dispute that BP's anti-nepotism policy
applied equally to married and engaged personnel.
2. Appellate Rule 407(a) provides:
The supreme court may answer questions of law
certified to it by the Supreme Court of the
United States, a court of appeals of the
United States, a United States district court,
a United States bankruptcy court or United
States bankruptcy appellate panel, when
requested by the certifying court if there are
involved in any proceeding before it questions
of law of this state which may be
determinative of the cause then pending in the
certifying court and as to which it appears to
the certifying court there is no controlling
precedent in the decisions of the supreme
court of this state.
3. BP's facts say that at this point Plaintiffs were informed of
the BP policy which prohibits relatives from working together in a
supervisor/supervisee relationship and that Relkin's supervisor
informed him that the policy did not apply to Plaintiffs because
they were not married. However Relkin was informed that if other
trainees complained, Relkin could be forced to step down as
training coordinator if investigation supported any claim of
favoritism being given to Muller. Relkin denies that he was
informed of the supervisor/supervisee prohibition.
4. "Status"is defined as "the condition (as arising out of age,
sex, mental incapacity, crime, alienage, or public station) of a
person that determines the nature of his legal personality, his
legal capacities, and the nature of the legal relations to the
state or to other persons into which he may enter." Webster's
Third New International Dictionary (Unabridged) 2230 (1968).
Marital status is thus the condition of being married or unmarried,
but in the case of married persons, is independent of to whom one
is married.
5. Jurisdictions discussing the term agree that it refers only to
the state of being married. They define the term in various ways:
as "whether one is married or not married,"Maryland Comm'n on
Human Relations v. Greenbelt Homes, Inc., 475 A.2d 1192, 1196 (Md.
1984); as "the social condition enjoyed by an individual by reason
of his or her having participated or failed to participate in a
marriage," Manhattan Pizza Hut, Inc. v. New York State Human
Rights Appeal Bd., 415 N.E.2d 950, 953 (N.Y. 1980); and as "that
phase of his or her personal lifestyle which is classifiable, for
instance, as single, married, separated, divorced or widowed." Id.
at 952.
6. In interpreting a civil rights statute substantially similar
to the AHRA, the Michigan Supreme Court stated:
Civil rights acts seek to prevent
discrimination against a person because of
stereotyped impressions about the
characteristics of a class to which the person
belongs. The Michigan civil rights act is
aimed at "the prejudices and biases"borne
against persons because of their membership in
a certain class, and seeks to eliminate the
effects of offensive or demeaning stereotypes,
prejudices and biases.
Miller, 362 N.W.2d at 653-54 (footnote and citations omitted)
(interpreting Mich. Comp. Laws. Ann.  37.3303 (West 1996)). We
agree that this is the fundamental purpose of anti-discrimination
statutes.
7. BP argues that anti-nepotism policies like BP's do not
"unreasonably or substantially interfere with the right to marry."
To support this argument BP cites several federal cases holding
that laws prohibiting spouses from working together do not
unconstitutionally interfere with the right to marry guaranteed by
the First and Fourteenth Amendments because they do not "directly
and substantially"interfere with the right. Although none of the
cases cited by BP appears to have considered the possible impact of
an anti-nepotism policy on marital decisions in a relatively
limited job market, such as that found in Alaska, we assume that
the Alaska legislature could have expressly and clearly protected
the right to marry had it felt the need to do so.
8. Although the parties have understandably focused on anti-
nepotism policies, there may be other reasons why an employer might
reasonably make employment decisions based on the identity of a
person's spouse. A proprietor, for example, might reasonably
decline to employ the spouse of a competitor, and a law firm might
reasonably decline to hire a lawyer whose spouse works for an
institution against which the firm often litigates, or vice versa.
9. 6 AAC 30.990(a)(8) (1995) provides, that as used in AS 18.80,
"discrimination because of marital status or
changes in marital status"includes
unjustified adverse action taken against a
person because that person is single, married,
widowed or divorced, or because of that
person's marriage or termination of marriage
to another person.
10. Although an agency's statutory interpretation is usually
entitled to "'some weight,'"Peninsula Marketing Ass'n v. State,
Dep't of Fish & Game, 817 P.2d 917, 922 (Alaska 1991) (quoting
State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d 268,
274 (Alaska 1983)), we "will not defer to an agency interpretation
that conflicts with the plain meaning of the statute." Fairbanks
N. Star Borough Sch. Dist. v. NEA-Alaska, Inc., 817 P.2d 923, 926
n.4 (Alaska 1991).
To the extent the agency were promulgating a regulation which
differs substantively from the clear language of the statute, it
would be invalid. Powers v. State, Pub. Employees Retirement Bd.,
757 P.2d 65, 67 (Alaska 1988) ("regulations made by an agency which
exceed its statutory authority are invalid").
ENDNOTES (Concurrence):
1. That the legislature has enacted anti-nepotism statutes
governing employment in state government sheds no light on the
legislature's intent vis-a-vis the Human Rights Act. Different
considerations apply when considering whether anti-nepotism rules
are proper in the public sector. See Washington Water Power Co.,
586 P.2d at 1154 ("The [legislature] is in a different position
from the private employer, in that its employees are paid out of
public funds over which the legislature exercises control, and it
is quite likely that nepotism in the hiring of employees is not
looked upon with favor by the public. The need for the 'appearance
of fairness' in this situation may well outweigh the spouses'
interest in obtaining employment unburdened by marital status
discrimination.").
2. The court cites Alaska State Comm'n for Human Rights v. State,
796 P.2d 458, 460 (Alaska 1990), for the proposition that the court
should exercise its independent judgment in determining the meaning
of "marital status." Draft Op. at 8 n.3. The question presented
in Alaska State Comm'n for Human Rights was whether the court
should review appeals from the Human Rights Commission involving
questions of law under the independent judgment standard of review.
Id. ("We must review appeals involving questions of law from the
superior court and the HRC under the same de novo standard of
review, in order to insure uniformity of decision."). Alaska State
Comm'n for Human Rights does not undermine the general principle
that the court may look to an agency's interpretation to help
resolve ambiguous statutory language. See, e.g., Union Oil Co. of
California v. State, Dep't of Revenue, 560 P.2d 21, 25 (Alaska
1977) ("[T]he statute is ambiguous, and we may therefore give some
weight to the administrative decision even when exercising our
independent review.").
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