Washington Employment Law Update – February 2019

State Supreme Court Announces New Sexual Harassment Standard for Places of Public Accommodation

On January 31, 2019 the Washington State Supreme Court issued its ruling in Floeting v. Group Health, Inc., No. 95205-1, establishing a new sexual harassment standard for places of public accommodation under the state’s antidiscrimination law. Specifically, the court held that under the Washington Law Against Discrimination (WLAD) employers are liable for their employees’ discriminatory conduct toward a customer in a place of public accommodation.

In Floeting, the plaintiff was a hospital patient who alleged that an employee of Group Health Hospital (a place of public accommodation) repeatedly sexually harassed him while he was seeking medical treatment. Under the WLAD, sexual harassment is a form of sex discrimination. The court held that under the plain language of the WLAD, employers are directly liable for the sexual harassment of a member of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation (which are protected classes under the WLAD).

Additionally, the court stated that the standard of liability for an employer is one of strict liability where the employer is liable for discrimination occurring in the terms and conditions of employment. Strict liability:

• Does not allow an employer to escape liability by asserting a lack of fault; and
• Applies the Black’s Law Dictionary definition as, “liability that does not depend on proof of negligence or intent to do harm but is instead based on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule.”

In this case, the employer was held liable because its employee caused the harm prohibited by the statute, even though the employer did not participate in the discrimination and was not negligent in training or supervising its employees. Of note, the court also held that:

• A single discriminatory act in a place of public accommodation may violate WLAD; and
• To be actionable, the asserted discriminatory conduct must be objectively discriminatory. It must be of a type, or to a degree, that a reasonable person who is a member of the plaintiffs protected class, under the same circumstances, would feel discriminated against. This is the reasonable person test applied in the public accommodations context.

The ruling became effective on January 31, 2019.

Read the opinion