Employment Law Daily Washington State employers strictly liable for sexual harassment of members of the public by their employees
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Monday, February 11, 2019

Washington State employers strictly liable for sexual harassment of members of the public by their employees

By Ronald Miller, J.D.

In declining to use the framework for analyzing sex discrimination in the employment context, the court noted the WLAD treats employment discrimination claims differently from public accommodation claims.

In an en banc decision, a divided Washington Supreme Court, in a 7-2 split, held that under the plain language of the Washington Law Against Discrimination (WLAD), employers are directly liable for the sexual harassment of members of the public by their employees. The court declined to import doctrines developed for the employment context into the public accommodations context. Rather, it concluded that the employer is liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising the employee. Justice Madsen, joined by Justice Wiggins, filed a separate dissenting opinion (Floeting v. Group Health Cooperative, January 31, 2019, Gonzalez, S.).

Sexual harassment of patient. The plaintiff was a member and patient of Group Health Cooperative, a health care system, for over 35 years. He alleged that beginning in July 2012, he was repeatedly sexually harassed by an employee of Group Health during his regularly scheduled medical appointments. He filed a complaint with Group Health and the matter was investigated. Two weeks later, Group Health terminated the employee.

Thereafter, the plaintiff sued Group Health for the unwelcome and offensive sexual conduct he experienced. The trial court dismissed the claim on summary judgment. The appeals court reversed, and the Washington Supreme Court granted review. Group Health challenged employer liability for the discriminatory actions of its agents and employees and challenged the legal test used by the Court of Appeals.

Public accommodation claims test. Under RCW 49.60.030(1)(b), WLAD secures the right to “full enjoyment” of any place of public accommodation, including the right to purchase any service or commodity sold by any place of public accommodation “without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.” Similarly, WLAD prohibits “any person or the person’s agents or employee [from committing] an act which directly or indirectly results in any distinction, restriction, or discrimination” based on a person’s membership in a protected class, RCW 49.60.215. This broad standard focuses the liability inquiry on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.

In Fell v. Spokane Transit Auth., the Washington Supreme Court established that in order to make a prima facie case of discrimination under RCW 49.60.215, a plaintiff must prove that (1) the plaintiff is a member of a protected class, (2) the defendant’s establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside the class, and (4) the plaintiff’s protected status was a substantial factor that caused the discrimination.

Instead of the traditional public accommodation claims test, Group Health argued that the framework developed to analyze sex discrimination committed by an employee against a coworker should apply. In the employment context, a plaintiff alleging workplace sexual harassment must show (1) the conduct was unwelcome, (2) the conduct was because of sex, (3) the conduct affected the terms or conditions of employment, and (4) the harassment can be imputed to the employer because the employer (i) authorized, knew of, or should have known of the harassment and (ii) failed to take reasonably prompt and corrective action.

Different treatment under WLAD. However, the Washington high court concluded that it treats employment discrimination claims differently from public accommodation claims because the WLAD treats them differently. Employees alleging employment discrimination must show that the misconduct affected the “terms or conditions of [their] employment.” The employment discrimination statute is limited to unfair practices by an “employer.” In contrast, the WLAD provisions prohibiting discrimination in public accommodation do not limit themselves to the “terms or conditions” of a public accommodation. The person subject to the WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees, RCW 49.60.040(19).

The plaintiff’s claim was more of a consumer claim than a claim between employee and employer, and his claim was not limited by the employment discrimination statute. The WLAD’s broad definition of “full enjoyment” extends beyond denial of service to include liability for mistreatment that makes a person feel “not welcome, accepted, desired, or solicited.” RCW 49.60.215 imposes direct liability on employers for the discriminatory conduct of their agents and employees. Thus, imputing liability on an employer only where the employer “authorized, knew, or should have known” of the discriminatory conduct and “failed to take reasonably prompt and adequate corrective action,” would significantly undermine the legislature’s clear language.

Rather, the high court agreed with the appeals court’s reasoning that to be actionable, the asserted discriminatory conduct must be objectively discriminatory, meaning that it must be of a type, or to a degree, that a reasonable person who is a member of the plaintiff’s protected class, under the same circumstances, would feel discriminated against. This is the reasonable person test applied in the public accommodations context.

Strict liability. In this instance, taking the employee’s allegations as true, the high court concluded that the plaintiff alleged more than subjective rhetoric from Group Health’s employee. He alleged that he “objectively received substandard treatment.” Repeated, express, and outrageous sexual harassment, as alleged here, satisfies the objective standard. The test adopted by the court imposes strict liability to the extent it does not allow an employer to escape liability by asserting a lack of fault.

In this case, Group Health will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising the employee. Therefore, Group Health is subject to strict liability for the discriminatory conduct of its employees in a place of public accommodation.

Dissent. Justice Madsen disagreed with the majority’s holding that workplace harassment doctrines do not apply in places of public accommodation. She argued that the majority erroneously subjects employers to a strict liability standard for discriminatory actions on nonsupervisory employees without justification and based on language that does not support such a result. The dissent favored the same balanced, workable approach applied in the workplace harassment cases, holding employers vicariously liable when they know, or should know, of the discriminatory behavior.

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