Employers in the #MeToo era are on high alert to prevent and correct sexual harassment in the workplace. A new ruling in from the Supreme Court adds an additional layer to employers’ concerns: employers may be strictly liable when their employee sexually harasses a customer or member of the public.
In January, the Washington Supreme Court issued its decision in Floeting v. Group Health Cooperative, holding that employers in places of public accommodation are directly and strictly liable when their employees sexually harass members of the public.
In Washington, the Washington Law Against Discrimination (“WLAD”) secures the right for all persons to full enjoyment of places of public accommodation free from discrimination based on a person’s membership in a protected class. RCW 49.60.030. Places of public accommodation generally include any place that is open and available to the public, including, but not limited to, hospitals, schools, stores and restaurants.
The state Legislature has directed Washington courts to liberally construe WLAD to eradicate discrimination, including sexual harassment, in places of public accommodation. RCW 49.60.010. Sexual harassment is a form of unlawful discrimination based upon sex. Over the past several years, Washington courts have emphasized the broad application of WLAD to businesses and places of public accommodation in opinions like Ingersoll v. Arlene’s Flowers.
In Arlene’s Flowers, the Supreme Court upheld lower court rulings that the flower shop violated WLAD when it refused to provide services to a same-sex couple. The Floeting case applies the standards discussed in Arlene’s Flowers to claims of sexual harassment by members of the public.
Christopher Floeting was a patient at Group Health Cooperative (“Group Health”). Floeting alleges that he was repeatedly sexually harassed by a Group Health employee while seeking medical treatment at Group Health. He filed a complaint with Group Health and Group Health investigated the complaint. After completing its investigation, Group Health terminated the employee accused of the sexual harassment. Floeting then sued Group Health for the unwelcome and offensive sexual conduct under WLAD.
Group Health argued that the court should import workplace sexual harassment standards to the public accommodations context, limiting the liability of Group Health to instances in which Group Health either authorized, knew, or should have known about the sexual harassment and failed to do anything about it.
The Court disagreed, holding that employers are directly liable for the sexual harassment of members of the public by their employees, applying the same standard for liability that the courts apply when businesses turn customers away because of the customer’s race, religion or sexual orientation.
The Court also applied a strict liability standard, finding that a single instance of discriminatory conduct in a place of public accommodation could violate WLAD and result in liability for Group Health even if Group Health was not negligent in training or supervising employees or Group Health did not participate in the discrimination.
Employers should take note of this ruling and review employment policies and trainings to include prohibitions on sexual harassment and discrimination towards customers as well as employees. Providing education and training to employees about their responsibilities under WLAD to members of the public could go a long way towards avoiding potential claims.
This article is not intended to be comprehensive or to provide legal advice. If you have questions regarding the applicability of WLAD to your business or other compliance issues, please seek the guidance of your legal counsel.
Erin McCool is a Member in the Wenatchee office of Ogden, Murphy, Wallace, PLLC, practicing in the areas of litigation, employment and labor law, and land use and water. She provides advice and consultation to local businesses, employers, and municipalities regarding state and federal employment laws.