Following the reasoning of California’s Supreme Court in a similar case, the Utah Supreme Court recently found that a physician could not sue for age discrimination after he was fired from a clinic with fewer than 15 employees. The court said the Utah Anti-Discrimination Act, or UADA, applies only to employers with 15 or more employees.1
Federal and state laws barring employers from discriminating against employees generally only cover employers with a certain number of workers. The federal Age Discrimination in Employment Act, for example, applies only to entities with 20 or more employees.2
However, several state courts have considered whether employees of businesses smaller than the threshold established in that particular state’s anti-discrimination statutes still should be allowed, for public policy reasons, to sue for alleged discrimination.
In the Utah case, Dr. Hubert C. Burton, a 69-year-old physician, was fired in July 1994 from his part-time position at a clinic after the clinic hired a new full-time physician.
The clinic’s president and chief operating officer told Dr. Burton that he "didn’t know how much longer you older guys wanted to work," and that the clinic "couldn’t pass up this opportunity to employ a full-time physician."
Dr. Burton later sued the clinic and its president and COO, arguing that his termination violated a public policy found in state and federal statutes against taking actions against employees because of their age.
Dr. Burton filed his lawsuit after finding that the Utah Anti-Discrimination Division had no jurisdiction to hear an administrative complaint against the clinic because the clinic had fewer than 15 employees. The UADA, he learned, only covered employers with 15 or more employees.
The trial court granted a motion for summary judgment for the clinic, holding that the UADA preempted Dr. Burton’s wrongful termination suit, which meant that the court disposed of this case without a trial.
On appeal, Dr. Burton maintained that in passing the UADA, which prohibits employment discrimination against people 40 years of age or older, the Utah legislature had recognized a public policy against age discrimination in employment.
Since he was prevented by the clinic’s size from following the administrative procedures set up by the UADA, Dr. Burton argued that he should be allowed to recover against the clinic in court. He also argued that there was nothing in the UADA that prohibited lawsuits against small employers who discriminate.
The Utah Supreme Court observed that employees generally could be terminated at will in Utah unless there was an agreement to the contrary—or if the termination would be prohibited by law or public policy.
The court noted that the California Supreme Court had considered a similar case. That case concerned an employee who could not obtain administrative remedies under California’s Fair Employment and Housing Act, or FEHA, because the act did not apply to employers with fewer than five employees.3
The employee in the California case wanted to sue under the theory that her discharge violated public policy established by the FEHA. The California Supreme Court concluded that permitting such a lawsuit would be inconsistent with the legislature’s intent in enacting the FEHA. Lawmakers, the court noted, had exempted small employers from the ban on age discrimination.
The Utah court reasoned that its legislature had made a similar determination to prohibit only large employers from terminating employees because of their age. The question of whether small employers also should be barred from discriminating on the basis of age should be determined by the legislature, not the courts, the Utah Supreme Court concluded.
Finding no constitutional provision or statute that declares a "clear and substantial" public policy against age discrimination in employment practices, the Utah court declined to find in the case an exception to the general rule that an employee can be terminated at will.
In addition, the Utah court observed that under the UADA, a covered employee alleging age discrimination must file an administrative complaint within 180 days of the alleged discrimination. The complaint is handled administratively, and if the employee is successful, he or she may be granted reinstatement, back pay and benefits, and attorney fees, but no compensatory or punitive damages.
In contrast, the Utah court noted, if a small employer could be sued in court, the employer would have to hire an attorney, and damages could be awarded against the employer.
Dr. Burton had relied on a Maryland case in which that state’s high court ruled that a woman could sue her former employer for sex discrimination, even though that employer had fewer than 15 employees.
The Utah Supreme Court declined to follow rulings in other states that found that employees of small employers could still sue over alleged discrimination, despite state laws that prohibited only larger employers from discriminating.
Dr. Burton had relied on a Maryland case in which that state’s high court ruled that a woman could sue her former employer for sex discrimination, even though that employer had fewer than 15 employees.4
The Maryland court noted that the definition of an employer under the Maryland Fair Employment Practices Act, or FEPA, was restricted to employers with 15 or more employees. The court observed, however, that a separate section of the FEPA prohibited discrimination by any employer. That section, the court said, was one of at least 34 statutes, one executive order and one constitutional amendment in Maryland barring discrimination based on sex in certain circumstances.
The Maryland court said those provisions were strong evidence of legislative intent to end sex discrimination in the state. In contrast, the Utah Supreme Court concluded there was no such constitutional or statutory declaration of public policy in Utah against age discrimination in termination decisions by small employers.
Maryland is not the only state that has permitted employees to sue small employers for alleged discrimination. In Washington, that state’s Supreme Court allowed twin sisters who were dental hygienists to sue their former employer, a dentist who fired both women when they were in their 60s.5
The Washington court concluded that because a state statute prohibited age discrimination against an employee between the ages of 40 and 70—but provided no clear recourse against an employer who had discriminated—there was an implied right to sue for employees alleging violations of that statute.
The court found that the definition of employer in another Washington statute pertaining to employment discrimination, which covered only businesses with eight or more employees, did not apply to the statute described above.
Similarly, the West Virginia Supreme Court of Appeals held that while an employee could not sue a small employer under the state’s Human Rights Act, because the restrictions of that act applied only to employers of 12 or more workers, the act did establish a clear public policy against sexual discrimination or harassment in employment and related retaliatory discharge.6 The West Virginia court found that public policy sufficient to support a lawsuit for retaliatory discharge based on alleged sex discrimination or sexual harassment.
Also, the Ohio Supreme Court found statutes had established a clear public policy against sexual harassment and discrimination in the workplace in that state.7
The Ohio statute prohibiting employers from discriminating or harassing on the basis of sex applied only to employers of four or more people. However, the Ohio court found that the statute did not preempt sexual harassment or discrimination lawsuits based on public policy.
The message to be gleaned from these cases is that even if your state’s anti-discrimination statutes apply only to businesses larger than your dental office, it is possible that a court could find that an employee has a right, under state public policy, to sue over alleged discrimination.
Also noteworthy is the fact that courts have tended to scrutinize statutes and policies specifically related to the type of discrimination alleged in the case at issue. This could mean that a state court might not rule the same way in a case involving alleged sex discrimination by a small employer as it would in a case involving alleged age discrimination.
Consequently, it would be sensible for dentists to avoid taking actions toward employees that could be perceived as discriminatory, even if state anti-discrimination laws apply only to businesses larger than your dental office.
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