The Washington Supreme Court recently announced a zero-tolerance approach to sexual harassment in places of public accommodation. In Floeting v. Group Health, Inc., No. 95205-1., issued Jan. 31, the Court responded to the case of a patient who alleged he was sexually harassed repeatedly by a hospital employee and sued the hospital under Washington Law Against Discrimination (WLAD). In its decision, the Court held that strict liability applies to places of public accommodation when their employees harass customers or members of the public.
“Employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned away customers because of their race, religion, or sexual orientation,” the Court stated in its ruling.
Strict liability for public accommodation sexual harassment differs from the liability standard in employee workplace sexual harassment claims. Why the distinction? According to a seven-member majority of the Court, the two are treated in a different manner because the plain language of the WLAD provisions differs.
WLAD makes it unlawful for “any person or the person’s agent or employee to commit an act… [of] discrimination… in any place of public… accommodation.” RCW 49.60.215. The Court in Floeting focused on the words “person or the person’s agent or employee,” finding that the Legislature intended for employers to be held strictly liable for the sexual harassment committed by their employees in places of public accommodation even if the employer can show it was not at fault. (Justice Barbara A. Madsen dissented, stating that “the majority erroneously subjects employers to a strict liability standard for the discriminatory actions of nonsupervisory employees—a far higher standard than in the workplace setting—without justification and based on language that does not support such a result.”)
In contrast, WLAD prohibits unfair practices by an “employer” under RCW 49.60.180, the provision which covers employment. In practice, proprietors in the employment context are given many opportunities to prove they are not at fault when an employee sexually harasses a coworker. The prima facie case for harassment in employment requires that the plaintiff 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) 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 reasonable prompt and corrective action. The employee also must show that the alleged harassment was sufficiently “severe or pervasive.”
Not surprisingly, Group Health argued that the liability standard for sexual harassment in employment cases should apply to a place of public accommodation scenario. But the Court declined to import the standard from the employment context. In the employment context, WLAD states that an “employer” will be liable and requires plaintiffs show that sexual harassment affected the “terms and conditions of [their] employment.” No such limitations exist for places of public accommodation. Instead, the Court focused on “whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate” and also on the Legislature’s direction to “liberally construe WLAD to eradicate discrimination, including in places of public accommodation.”
The Court also determined that in the public accommodation context, WLAD does not require a showing that the alleged harassment was severe or pervasive, as is required in the employment context. The test for showing sexual harassment in a place of public accommodation requires 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 of that class, and (4) the plaintiff’s protected status was a substantial factor that caused the discrimination.
Can a single discriminatory act in a place of public accommodation violate WLAD? It’s possible. The Court stated a reasonable person test should be applied in the public accommodation context, meaning that we look to a reasonable person from plaintiff’s protected class and to whether he or she would feel discriminated against under the same circumstances.
The reasonable person test leaves a fair amount of wiggle room. I suspect practitioners will fall back on the “severe or pervasive” test as a way to describe their client’s claims or defenses. In Floeting, the complainant was subjected to sex-based treatment that continued over time and included unwanted touching and questions about the plaintiff’s genitalia and sexual prowess. The Court described the harassment as “repeated, express, and outrageous.” While these terms certainly describe the facts in Floeting, it will be important that practitioners do not use “repeated, express, and outrageous” as the new standard for establishing sexual harassment in the public accommodation context.
How will other plaintiffs fare under this standard? It’s hard to know. What if plaintiff Floeting had been subjected to only one unwanted sex-based comment? One instance of the harasser pressing her body against his? Would a reasonable man have felt discriminated against if a hospital staff person asked him about his sexual preferences once? We will have to see how the cases shake out. The Floeting decision from the Court of Appeals, affirmed by the Supreme Court, has been cited to twice, and in each scenario, the complained of behavior was found not to rise to the level of illegal sexual harassment.
What implications will this new ruling have on businesses? The majority stated that strict liability will motivate proprietors of places of public accommodation to take affirmative steps to prevent harassment through quality training and supervision. The dissent expressed concern that a strict liability standard would lead to “management by lawsuit.” At a minimum, this zero-tolerance stance toward sexual harassment should cause proprietors of places of public accommodation to re-evaluate their efforts to eradicate harassment and discrimination through robust anti-harassment policies, quality training, and supervision.
Molly Powell. Molly is an administrative judge for the U.S. Equal Employment Commission, where she hears the employment discrimination complaints of federal employees in a five-state region. Molly conducts frequent outreach to employers and employee groups and volunteers for QLaw’s Legal Clinic. She serves on the Board of Page Ahead, a nonprofit organization dedicated to closing the children’s literacy gap between kids living in poverty and their more affluent peers in Washington. On her best day, Molly is on Lopez Island with her husband and their three kids, ages 2, 5, and 12.
