Labor & Employment Law Daily School district may be strictly liable under WLAD for bus driver’s sexual abuse of students
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Wednesday, June 24, 2020

School district may be strictly liable under WLAD for bus driver’s sexual abuse of students

By Robert Margolis, J.D.

The statute provides for strict liability, and “discrimination” includes intentional sexual abuse.

A school district may be subject to strict liability for discrimination carried out by its employees in places of public accommodation, and such discrimination can include “intentional sexual misconduct[,] including physical abuse and assault,” the Washington Supreme Court has held. The state high court answered two questions certified by the U.S. District Court for the Western District of Washington regarding the scope of the Washington Law Against Discrimination (WLAD) in a case against a school district arising out of a school bus driver’s sexual assault of school children on school buses (W.H. v. Olympia School District, June 18, 2020, Wiggins, C.).

Federal lawsuit. Guardians for minor children who were abused by a school bus driver sued the school district and individual defendants in federal court, bringing both federal and state causes of action. The district court granted summary judgment in favor of the defendants on some claims, which the Ninth Circuit affirmed in part and reversed in part. After remand, the Washington Supreme Court rendered a decision that led the children’s guardians, in their federal court action, to successfully move to amend their complaint to add a claim under WLAD, alleging that the abuse of the children on the school buses constituted sex discrimination in a place of public accommodation.

Certified questions. The district court then certified two questions to the Washington Supreme Court: (1) “May a school district be subject to strict liability for discrimination by its employees in violation of the WLAD?”; and (2) “If a school district may be strictly liable for its employees’ discrimination under the WLAD, does ‘discrimination’ for the purposes of this cause of action encompass intentional sexual misconduct[,] including physical abuse and assault?”

WLAD. After briefly summarizing the historical development of discrimination law in Washington, the state high court addressed the provision of WLAD at issue, RCW 49.60.215. WLAD as initially enacted prohibited discrimination on the basis of “race, creed, color, or national origin” and, by amendment in 1973, added “sex” as a protected category. Thus, the provision makes it “an unfair practice for any person or [the person’s] agent or employee to commit” a discriminatory act “in any place of public accommodation,” including on the basis of “sex.”

Strict liability. In 2019, the Washington Supreme Court in Floeting v. Group Health Cooperative held that employers are strictly liable for the conduct of their employees under RCW 49.60.215. Looking at the plain language of RCW 49.60.215, which imposes liability when “any person or the person’s agent or employee” commits a discriminatory act, the supreme court concluded the provision does not impose a negligence standard requiring foreseeability, but instead provides for direct liability for an agent’s actions, regardless of the principal’s culpability.

Public accommodation. The court answered the first certified question in the affirmative, holding that WLAD imposes strict liability for an agent’s discriminatory acts in a place of public accommodation. Floeting resolved the strict liability question, and the school district did not contend that Floeting was either wrongly decided or that its “legal underpinnings” have changed or disappeared. Instead, the defendants argued that Floeting should not apply to school districts, but the supreme court rejected this contention. RCW 49.60.215 imposes liability on a “person” for acts of a “person’s agent,” and the definition of “person” in WLAD includes “any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.” School districts are political subdivisions of the state, so “WLAD public accommodations claims apply to school districts,” the court reasoned.

In arguing that strict liability should not apply to it in this case, the school district also cited several cases applying a negligence standard to school districts in discrimination cases. But none of those cases raised WLAD claims. Thus, they bore no relevance as to whether Floeting, which interprets WLAD, was correctly decided and governs the WLAD claim in this case.

Other statute did not control. The school district also asserted that RCW 4.08.120 controls the application of WLAD. This alternative statutory provision permits some claims to be brought against a “county” or other “public corporation[]” under a contract theory or for “an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.” The school district argued that this means that all claims against a public entity must be brought under those theories, but the court disagreed. The school district essentially asks the court to read the word “only” into the statute, and nothing in its language of this statute suggests that it is intended to be the exclusive source of claims against public entities. Thus, it does not control claims under WLAD, the court held.

Finally, the school district argued to no avail that RCW 4.08.120 waived sovereign immunity for school districts only for “suits in contract or arising from their acts or omissions.” The state legislature had enacted a broad waiver of sovereign immunity in the 1960s; moreover, WLAD itself abrogated sovereign immunity for discrimination claims under that statute. It created a private right of action for claims of discrimination in places of public accommodation, and included public educational facilities in its definition of places of public accommodation.

Intentional sexual misconduct. Floeting essentially answered the second certified question affirmatively, in holding that sexual harassment is a form of sex discrimination. The supreme court agreed with the plaintiffs that intentional sexual misconduct is a form of sexual harassment. The school district did not contest this; instead, it argued that the bus driver sexually assaulted both girls and boys, and so his conduct did not amount to sex discrimination under the WLAD. Noting that this argument does not address the certified question, the court declined to address it.

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