Insights / Employment Advisor
WA Supreme Court: Public Accommodation Employers are Now Strictly Liable for Employees’ Discriminatory Conduct Toward Non-Employees
By Kristina Markosova and Joseph P. Hoag
02.14.19
Employers are liable for employees’ discriminatory conduct toward non-employees in places of public accommodation, such as restaurants, banks, hotels, medical providers' offices, and education facilities – even if the employer did not know or have reason to know about their employees’ behavior. This expanded liability comes as a result of the Washington State Supreme Court’s recent decision in Floeting v. Group Health Cooperative, which included a broad interpretation of the Washington Law Against Discrimination (WLAD), RCW 49.60 et seq.
Discrimination Is Prohibited in Places of Public Accommodation
WLAD guarantees persons the right to “full enjoyment” of any place of public accommodation, which includes freedom from discrimination. “Places of public accommodation” are broadly defined and include all facilities used by the public. Under the WLAD, it is unlawful for “any person or the person's agent or employee to commit an act” of discrimination in a place of public accommodation. RCW 49.60.215. The Washington Supreme Court previously had not addressed the question of an employer’s liability when a nonsupervisory employee engages in discriminatory conduct towards a customer in a place of public accommodation. In Floeting v. Group Health Cooperative, a case of first impression, the Supreme Court held (7-2) that, under WLAD, public accommodations employers are strictly liable for any employee’s discriminatory conduct towards an individual, regardless of whether the employee is a supervisory or a non-supervisory employee, and regardless of whether the employer has knowledge of the employee’s conduct.
Strict Liability for Medical Clinic Employee’s Alleged Sexual Harassment of Patient
In Floeting, a patient of a medical clinic complained to the clinic that he was “repeatedly sexually harassed” by one of the clinic’s employees. After receiving a complaint from the patient, the clinic immediately investigated the allegations and discharged the employee for the conduct at issue. The patient nevertheless sued the medical clinic for sexual harassment under the WLAD. The Washington State Supreme Court ultimately concluded that strict liability applies to public accommodation employers for their employees’ conduct toward the public.
The Court held that, unlike state-law employment based discrimination cases the public accommodations portion of the WLAD “is not a negligence statute where foreseeability matters; it imposes direct liability for discriminatory acts, regardless of the culpability of the actor.” The Court further held that alleged sexual harassment in the public accommodation context does not have to be “severe” or “pervasive” to be actionable. This is in contrast to the WLAD requirements for employer liability in the employment context, where severe and pervasive elements are required for liability. Instead, “to be actionable” in the public accommodations context “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 plaintiff’s protected class, under the same circumstances, would feel discriminated against.”
What Public Accommodation Employers Must Know
The Washington State Supreme Court has now held that the WLAD imposes strict liability on public accommodation employers for the actions of their employees. Although public accommodation employers may still argue that alleged discriminatory conduct did not occur or that the alleged bad actor is not the employer’s agent or employee, public accommodation employers’ legal defenses are significantly reduced under this broad interpretation of the WLAD.
Employers should ensure that they provide all employees and agents with up-to-date anti-discrimination and harassment training and ensure that appropriate controls and policies are in place to identify and address potential issues as soon as possible. Employers that become aware of any employee conduct toward a member of the public that could be considered discriminatory should take immediate and decisive action, including possibly terminating employment. Employers should also review applicable insurance provisions to determine whether public accommodation discrimination claims are covered. Finally, employers with questions regarding strategies to minimize risk of public accommodation discrimination litigation should contact experienced employment counsel for further consultation and to ensure compliance with applicable federal and state laws.
Discrimination Is Prohibited in Places of Public Accommodation
WLAD guarantees persons the right to “full enjoyment” of any place of public accommodation, which includes freedom from discrimination. “Places of public accommodation” are broadly defined and include all facilities used by the public. Under the WLAD, it is unlawful for “any person or the person's agent or employee to commit an act” of discrimination in a place of public accommodation. RCW 49.60.215. The Washington Supreme Court previously had not addressed the question of an employer’s liability when a nonsupervisory employee engages in discriminatory conduct towards a customer in a place of public accommodation. In Floeting v. Group Health Cooperative, a case of first impression, the Supreme Court held (7-2) that, under WLAD, public accommodations employers are strictly liable for any employee’s discriminatory conduct towards an individual, regardless of whether the employee is a supervisory or a non-supervisory employee, and regardless of whether the employer has knowledge of the employee’s conduct.
Strict Liability for Medical Clinic Employee’s Alleged Sexual Harassment of Patient
In Floeting, a patient of a medical clinic complained to the clinic that he was “repeatedly sexually harassed” by one of the clinic’s employees. After receiving a complaint from the patient, the clinic immediately investigated the allegations and discharged the employee for the conduct at issue. The patient nevertheless sued the medical clinic for sexual harassment under the WLAD. The Washington State Supreme Court ultimately concluded that strict liability applies to public accommodation employers for their employees’ conduct toward the public.
The Court held that, unlike state-law employment based discrimination cases the public accommodations portion of the WLAD “is not a negligence statute where foreseeability matters; it imposes direct liability for discriminatory acts, regardless of the culpability of the actor.” The Court further held that alleged sexual harassment in the public accommodation context does not have to be “severe” or “pervasive” to be actionable. This is in contrast to the WLAD requirements for employer liability in the employment context, where severe and pervasive elements are required for liability. Instead, “to be actionable” in the public accommodations context “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 plaintiff’s protected class, under the same circumstances, would feel discriminated against.”
What Public Accommodation Employers Must Know
The Washington State Supreme Court has now held that the WLAD imposes strict liability on public accommodation employers for the actions of their employees. Although public accommodation employers may still argue that alleged discriminatory conduct did not occur or that the alleged bad actor is not the employer’s agent or employee, public accommodation employers’ legal defenses are significantly reduced under this broad interpretation of the WLAD.
Employers should ensure that they provide all employees and agents with up-to-date anti-discrimination and harassment training and ensure that appropriate controls and policies are in place to identify and address potential issues as soon as possible. Employers that become aware of any employee conduct toward a member of the public that could be considered discriminatory should take immediate and decisive action, including possibly terminating employment. Employers should also review applicable insurance provisions to determine whether public accommodation discrimination claims are covered. Finally, employers with questions regarding strategies to minimize risk of public accommodation discrimination litigation should contact experienced employment counsel for further consultation and to ensure compliance with applicable federal and state laws.