Floeting v. Grp. Health Coop. , 192 Wash. 2d 848 ( 2019 )

I liii' opinion was filed for record
IN CLIRKS OFFICE \ ^
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[ DATg JAN 3 1 2019 ,^
CH^JUsnce 1 SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CHRISTOPHER H. FLOETING,
Respondent,
No. 95205-1
V.
En Banc
GROUP HEALTH COOPERATIVE,
Petitioner. Filed JAN 3 1 2019
Gonzalez, J.—The Washington Law Against Discrimination(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. Christopher Floeting alleges that a Group Health Cooperative
employee repeatedly sexually harassed him while he was seeking medical
treatment. Sexual harassment is a form of sex discrimination. Group Health
argues that we should import workplace sexual harassment doctrines into the
public accommodations context, categorically limiting employer liability. We
decline to do so and affirm.
Floeting v. Group Health, No. 95205-1
Background
Floeting had been a member and patient of Group Health, a nonprofit health
care system, for over 35 years. Group Health is a place of public accommodation.
Floeting alleges that beginning in July 2012, he was repeatedly sexually harassed
by a Group Health employee during his regularly scheduled medical appointments.
He filed a complaint with Group Health, and Group Health investigated. Two
weeks later. Group Health terminated the employee.
Floeting sued Group Health for the unwelcome and offensive sexual conduct
he experienced. The trial court dismissed his claim on summary judgment,
presumably pursuant to Group Health's argument that the employment
discrimination standard applies.' The Court of Appeals reversed. Floeting v. Grp.
Health Coop., 200 Wn. App. 758, 403 P.3d 559 (2017). We granted review.
Floeting V. Grp. Health Coop., 190 Wn.2d 1007(2018).
Analysis
Group Health challenges employer liability for the discriminatory actions of
its agents and employees and challenges the legal test used by the Court of
'The trial judge did not explain his reasoning. As it does here, Group Health argued that
Glasgow V. Georgia-Pacific Corp., 103 Wn.2d 401, 406,693 P.2d 708 (1985), should control.
In other words. Group Health asserts that an employer is not liable for the discriminatory conduct
of its employee if it did not know about the conduct.
Floetingv. Group Health,'Ho. 95205-1
Appeals. We decline to import doctrines developed for the employment context
into the public accommodations context. We hold that under the plain language of
WLAD,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
customers away because of their race, religion, or sexual orientation.
Since both of Group Health's challenges present questions oflaw, our
review is de novo. Fraternal Order ofEagles, Tenino Aerie No. 564 v. Grand
Aerie ofFraternal Order ofEagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002)
(citing State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001)). When
reviewing a statute, the court will give effect to the statute's plain language. Dep 't
ofEcology V. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002). In
determining if the statute is plain, we will consider the ordinary meaning of words,
basic rules of grammar, and statutory context. Citizens All.for Prop. Rights Legal
Fund V. San Juan County, 184 Wn.2d 428,435, 359 P.3d 753 (2015).
The legislature has declared "that practices of discrimination . . . threaten[]
not only the rights and proper privileges of[Washington's] inhabitants but
menace[]the institutions and foundation of a free democratic state." RCW
49.60.010. The legislature has also directed us to liberally construe WLAD to
eradicate discrimination, including discrimination in places of public
accommodation. RCW 49.60.010,.020; see also Jin Zhu v. N. Cent. Educ. Serv.
3
Floeting v. Group Health, No. 95205-1
Dist.-ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504(2017)(quoting Marquis v. City
ofSpokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)).
Under RCW 49.60.030(l)(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." See RCW 49.60.040(14). Similarly, WLAD
prohibits "any person or the person's agent 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 (emphasis
added). 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.
Floeting alleges a Group Health employee sexually harassed him. Sexual
harassment is a form of sex discrimination, which we analyze like other forms of
discrimination in places of public accommodation. See Dana E. Blackman,
Refusal To Dispense Emergency Contraception in Washington State: An Act of
Conscience or Unlawful Sex Discrimination?, 14 MiCH. J. GENDER & L. 59, 72
(2007)("absent distinguishing factors, the various protected classes should be
Floeting v. Group Health, No. 95205-1
treated similarly under the law"); cf. Meritor Sav. Bank, FSB v. Vinson, All U.S.
57, 66, 106 S. Ct. 2399, 91 L. Ed. 2d 49(1986).
More than twenty years ago, we set forth the standard for establishing a
prima facie case of discrimination in a place of public accommodation under RCW
49.60.215. See Fell V. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319(1996).^ Fell 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 that class, and (4)the plaintiffs protected status was a substantial
factor that caused the discrimination. Id.; see also Demelash v. Ross Stores, Inc.,
105 Wn. App. 508, 525, 20 P.3d 447(2001)(applying same analytical framework).
In all the time since, the legislature has not seen fit to amend WLAD to impose a
different standard on claims of discrimination in places of public accommodation.
Instead of the traditional public accommodation claims test, Group Health
argues that the framework developed to analyze sex discrimination committed by
an employee against a coworker should apply. In the employment context, a
^ Group Health argues that Fell does not control because the discrimination in that case was not
by a nonsupervisory employee, but the plain language of WLAD does not make this distinction.
5
Floeting v. Group Health, No. 95205-1
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.
Glasgow V. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708(1985)(holding
sexual harassment deprived plaintiff of a workplace free of sex discrimination).
Group Health argues that the Glasgow employment discrimination standard
"applies seamlessly" and therefore it should apply. Pet. for Review at 10. It also
suggests that if we do not apply the agency principles articulated in Glasgow, we
would be creating a "double standard" whereby sexual harassment claims are
treated differently in different contexts. Id. at 14-15. Group Health also argues
that the Court of Appeals incorrectly imposed a standard that rejects consideration
of severity or pervasiveness of the treatment. Id. at 15.
But we treat employment discrimination claims differently from public
accommodation discrimination claims because WLAD treats them differently. An
employee alleging employment discrimination must show that the misconduct
affected the "terms or conditions of[their] employment." RCW 49.60.180(3);
Glasgow, 103 Wn.2d at 405-06. The employment discrimination statute is limited
to unfair practices by an "employer" by operation of the language "It is an unfair
6
Floetingv. Group Health, Fio. 95205-1
practice for any employer[][t]o .. . RCW 49.60.180. In contrast, WLAD
provisions prohibiting discrimination in a public accommodation do not limit
themselves to the "terms or conditions" of a public accommodation. See RCW
i'
49.60.215. Discrimination by "any person or the person's agent or employee" is
an unfair practice in a public accommodation, id/, in this context, the person
subject to WLAD broadly includes, among others, individuals, corporations,
owners, proprietors, managers, and employees. RCW 49.60.040(19). Floeting's
claim is more of a consumer claim than a claim between an employee and
employer, and his claim is not limited by the employment discrimination statute.
WLAD protects the customer's "full enjoyment" of the services and
privileges offered in public accommodations. RCW 49.60.030(l)(b). 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 49.60.040(14). Denial or deprivation of services on the basis
of one's protected class is an affront to personal dignity. See Obergefell v. Hodges,
_U.S. _, 135 S. Ct. 2584, 2604, 2607-08, 192 L. Ed. 2d 609(2015)(denial of
marriage equality works a "grave and continuing harm"). The "fundamental
object" of laws banning discrimination in public accommodations is "to vindicate
'the deprivation of personal dignity that surely accompanies denials of equal access
to public establishments.'" Heart ofAtlanta Motel, Inc. v. United States, 379 U.S.
Floeting v. Group Health, No. 95205-1
241, 250, 85 S. Ct. 348, 13 L. Ed. 2d 258(1964)(quoting S. Rep.No. 88-872, at
16-17 (1964)).3
WLAD makes it unlawful for "any person or the person's agent or employee
to commit an act" of, among other things, discrimination in a place of public
accommodation. RCW 49.60.215. This provision imposes direct liability on
employers for the discriminatory conduct of their agents and employees. We can
say it no better than the Court of Appeals:
It is an unfair practice for "any person or the person's agent or employee" to
commit a forbidden act. RCW 49.60.215(1). This language attributes
responsibility for the agent's or employee's discriminatory act to the
"person"(employer) without mention of the doctrines of vicarious liability
or respondeat superior. In this way, the legislature chose to fight
discrimination in public accommodations by making employers directly
responsible for their agents' and employees' conduct.
Floeting, 200 Wn. App. at 770. Grafting Glasgow's rule imputing liability to 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," 103 Wn.2d at 407, would significantly undermine the
legislature's clear language. It is the province ofthe legislature to establish
^ Amici universities are concerned about the State's obligation to protect free speech and
academic freedom. This is an interesting and important issue, especially when the place of
public accommodation is provided by the government, which is not the case here. No party has
raised the issue, and we decline to speculate about it. We note, however, that sexual harassment,
as defined for purposes of the Washington Law Against Discrimination, is not protected speech.
Tafoya v. Human Rights Comm 'n. 111 Wn. App. 216,229, 311 P.3d 70(2013).
8
Floeting v. Group Health, No. 95205-1
standards of conduct and attendant rules of liability, and the legislature determined
direct liability is appropriate here. See, e.g., United States v. Park, 421 U.S. 658,
672-73, 95 S. Ct. 1903, 44 L. Ed. 2d 489(1975)(Congress imposed heightened
standard of care on food sellers, even where no awareness of wrongdoing); of.
Anderson v. Pantages Theatre Co., 114 Wash. 24, 29, 194 P. 813 (1921).
Group Health contends that it should not be held liable for "unforeseeable
acts of an employee." Suppl. Br. of Pet'r at 16. But RCW 49.60.215 is not a
negligence statute where foreseeability matters; it imposes direct liability for
discriminatory acts, regardless of the culpability of the actor. Group Health also
contends that we should apply a different standard to the acts of frontline
employees than we do to supervisors. Nothing in the text of WLAD supports that
approach. '"[A] rule that only actions by supervisors are imputed to the employer
would result, in most cases, in a no liability rule.'" Br. of Amici Curiae Legal
Voice & Korematsu Center at 11 {o^oting Arguello v. Conoco, Inc., 207 F.3d 803,
810 (5th Cir. 2000))."^ This would not be consistent with the legislature's express
directions.
^ Arguello concerns a claim of public accommodations discrimination under the federal civil
rights statute 42 U.S.C. § 1981 and § 2000a. Arguello, 207 F.3d at 808-09. Title II of the Civil
Rights Act of 1964 does not refer to the "person" who may be liable or contain a relevant
definition. For this reason, liability under federal law is usually limited to instances where the
common law doctrines of vicarious liability or respondeat superior impose liability. Unlike
federal law, the comprehensive language in WLAD supports a reading of both direct and
vicarious liability. See RCW 49.60.215.
Floetingv. Group Health, 95205-1
Group Health suggests we should apply an agency or vicarious liability lens
to employer liability for employee conduct under RCW 49.60.215. This would
require us to ignore both the plain language of the statute and the larger statutory
scheme. The statute 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. Ofthe fourteen "unfair practices" provisions
under WLAD,employers are directly liable for the acts of employees in only two
instances: (1)the relevant public accommodations provision here and (2)the
provision making discrimination against persons with disabilities who use service
animals unlawful, RCW 49.60.218. These provisions' direct liability language
stands in contrast to the other dozen provisions. See Br. of Amici Curiae Legal
Voice & Korematsu Center at 7-8 (collecting statutes). All provisions target
"unfair practices" but are defined in a context specific manner. There is no
statutory support for the argument that an employer must know about the
discrimination or have an opportunity to take corrective action before liability may
be imposed. See generally Tafoya v. Human Rights Comm 'n, 177 Wn. App. 216,
224, 311 P.3d 70(2013)(applying Glasgow's employment standard to housing
context because the statutes in those contexts were similar).
Group Health also argues that we should adopt Glasgow's "severe" or
"pervasive" requirement for sexual harassment claims in places of public
10
Floeting v. Group Health, No. 95205-1
accommodation. Suppl Br. of Pet'r at 17. We decline to do so. There is no
statutorily required pervasiveness or severity requirement for discriminatory
conduct in the public accommodations context. See ch. 49.60 RCW.^ A single
discriminatory act in a place of public accommodation may violate WLAD. See,
e.g., Kingv. Greyhound Lines, Inc., 61 Or. App. 197, 199-201, 656 P.2d 349(1982)(interpreting a provision similar to the WLAD and holding bus company
liable for an employee's use oftwo racial slurs toward a customer); accord
Evergreen Sch. Dist. No. 114 v. Wash. State Human Rights Comm 'n, 39 Wn. App.
763,774, 695 P.2d 999(1985).
We agree with the Court of Appeals when it noted:
To be actionable, the asserted discriminatory conduct must be objectively
discriminatory. By this we mean that 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(as described in
subsections[RCW 49.60].040(14) and .215(1)). This is an objective
standard.
Floeting, 200 Wn. App. at 113-1A (emphasis added). This is the reasonable person
test applied in the public accommodations context. See generally State v. Trey M.,
186 Wn.2d 884, 888, 383 P.3d 474(2016)(describing the "reasonable person"
standard).
^ Other jurisdictions have similarly declined to apply employment discrimination standards
where irrelevant and inapplicable. See, e.g., City ofMinneapolis v. Richardson, 307 Mirm. 80,
86-87, 239 N.W.2d 197(1976); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257-58 (4th
Cir. 2001).
11
Floetingv. Group Health, Flo. 95205-1
That said, we stress that plaintiffs must show more than '"mere rhetoric that
is subjectively offensive.'" Floeting, 200 Wn. App. at 773 {quoting Evergreen
Sch. Dist., 39 Wn. App. at 772-73); see also Kahn v. Salerno, 90 Wn. App. 110,
118, 951 P.3d 321 (1998)("Laws against discrimination are 'not directed against
unpleasantness per se. (quoting Gleason v. Mesirow Fin., Inc., 118 F.3d 1134,
1145 (7th Cir. 1997))). But taking his allegations as true, as we must at this stage,
Floeting alleged more than subjectively offensive rhetoric from Group Health's
employee. He alleged that he "objectively received substandard treatment."
Clerk's Papers at 390. Repeated, express, and outrageous sexual harassment, as
alleged here, satisfies the objective standard.
The test we adopt imposes strict liability to the extent it does not allow an
employer to escape liability by asserting a lack of fault. According to Black's Law
Dictionary,"strict liability" is "[Ijiability that does not depend on proof of
negligence or intent to do harm but that is based instead on a duty to compensate
the harms proximately caused by the activity or behavior subject to the liability
rule." Black's Law Dictionary 1055 (10th ed. 2014). 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 its employees. Therefore, Group Health is subject to strict liability for
the discriminatory conduct of its employee in a place of public accommodation.
12
Floetingv. Group Health,'^o. 952Q5-\
The statute's current language requires this reading. RCW 49.60.215 states,
"It shall be an unfair practice for any person or the person's agent or employee to
commit an act which directly or indirectly results in . . . discrimination" on the
basis of sex. The statute already holds agents and employees liable for their own
actions by virtue of how it defines "person":
"Person" includes one or more individuals, partnerships, associations,
organizations, corporations, cooperatives, legal representatives,
trustees and receivers, or any group of persons; it includes any owner,
lessee, proprietor, manager, agent, or employee^ whether one or more
natural persons; and further includes any political or civil subdivisions
of the state and any agency or instrumentality of the state or of any
political or civil subdivision thereof.
RCW 49.60.040(19)(emphasis added). We therefore must interpret "any person
or the person's agent or employee" to mean something more than that each person
is liable for their own actions. See State v. Roggenkamp, 153 Wn.2d 614, 624, 106
P.3d 196(2005)('"each word of a statute is to be accorded meaning'"
(quoting State ex rel. Schillberg v. Barnett, 79 Wn.2d 578, 584,488 P.2d 255(1971))); In re Recall ofPearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034(2000)("'[T]he drafters of legislation .. . are presumed to have used no
superfluous words and we must accord meaning, if possible, to every word in a
statute.'"(second alteration in original)(quoting Greenwood v. Dep't ofMotor
Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975))); State v. J.P., 149 Wn.2d
444, 450,69 P.3d 318 (2003)('"Statutes must be interpreted and construed so that
13
Floetingv. Group Health, F\o. 95205-1
all the language used is given effect, with no portion rendered meaningless or
superfluous.'" (internal quotation marks omitted)(quoting Davis v. Dep't of
Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999))). Reading the statute to
make employers liable for the actions of their employees in this context, even
when the employer itself is not at fault, has this effect.
The dissent argues that if we read RCW 49.60.215 to impose strict liability,
then we must also apply strict liability to RCW 49.60.180(3), the employment
discrimination statute, because the latter statute "clearly states employers will be
liable for discrimination occurring in the terms or conditions of employment."
Dissent at 7. This is incorrect. RCW 49.60.215 states that it is an unfair practice
for "any person or the person's agent or employee" to discriminate, while RCW
49.60.180(3)imposes liability only on an employer who discriminates. RCW
49.60.180(3) does not directly impose liability for the actions of the employer's
agents and employees ("It is an unfair practice for any employer. . . [t]o
discriminate against any person in compensation or in other terms or conditions of
employment."). Because RCW 49.60.180(3) prohibits only the employer itself
from discriminating, it requires a showing of fault by the employer if the
discrimination was perpetuated by an employee. The same is not true of RCW
49.60.215.
14
Floeting v. Group Health, No. 95205-1
The dissent is concerned that strict liability would do little to eradicate
discrimination because employers could not escape liability by showing that they
acted diligently to prevent and remedy the discrimination. However, if employers
know that the only way they can prevent lawsuits is by preventing their employees
from discriminating at all, they will tiy even harder to make sure that their
employees are well trained, are well supervised, and do not discriminate. In
addition, it gives employers an incentive to end any alleged discrimination as soon
as possible, limiting their exposure to damages. This will encourage employers to
focus on preventing discrimination, rather than merely punishing employees when
it occurs. Prevention will better further the legislative goal of eradicating
discrimination in places of public accommodation.
Finally, an employer will still have some defenses available. An employer
could still argue to the jury, for example, that the discrimination did not happen at
all, that it did not meet the objective or subjective standards required by the statute
and therefore was not an unfair practice, or that the person who committed the
discrimination was not its agent or employee. What strict liability does preclude
are claims that an employer is not liable because it was not negligent and did not
intend to do harm. RCW 49.60.215 imposes strict liability on employers for the
actions oftheir employees.
15
Floetingv. Group Health, No. 95205-1
Conclusion
Under the plain language of WLAD,employers are liable for their
employees' discriminatory conduct toward a customer in a place of public
accommodation. The Glasgow standard does not apply to claims of discrimination
in places of public accommodation. We affirm the Court of Appeals and remand
for further proceedings consistent with this opinion.
16
Floeting v. Group Health, No. 95205-1
t
WE CONCUR:
HCUa kUASi ,
17
Floeting v. Grp. Health Coop.
No. 95205-1
MADSEN,J.(dissenting)—I disagree with the majority's holding that workplace
harassment doctrines do not apply in places of public accommodation. I see no reason to
treat instances of discrimination differently, nor do I believe the legislature intended to
distinguish them—their intent is to eradicate discrimination wherever it occurs. I write
separately because 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—withoutjustification and based on language that
does not support such a result. Instead of imposing a duty on business owners to take
action when they know, or should know, of discriminating conduct by an employee, the
majority's strict vicarious liability standard makes business owners guarantors of their
employees' behavior. This court rejected the duty to maintain a "pristine working
environment"^ in the context of workplace harassment in favor of a more balanced,
workable approach, holding employers vicariously liable when they know, or should
know, of the discriminatory behavior. We should adopt that same balanced approach
with public accommodation discrimination.
'Glasgow V. Ga.-Pac. Corp., 103 Wn.2d 401, 406,693 P.2d 708(1985)(quoting Cont'l Can Co.
V. State, 297 N.W.2d 241, 249(Minn. 1980)).
No. 95205-1
Madsen, J., dissenting
Discussion
We have held that the Washington Law Against Discrimination(WLAD),ch.
49.60 RCW,provides protections against sexual harassment, as it is a form of sex
discrimination. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 405,693 P.2d 708(1985)
("Sexual harassment as a working condition unfairly handicaps an employee against
whom it is direeted in his or her work performance and as such is a barrier to sexual
equality in the workplace.").
Indeed, the WLAD is elear that "[t]he right to be free from discrimination because
of. . . sex ... is recognized as and declared to be a civil right." RCW 49.60.030(1). It
also establishes that
[i]t shall be an unfair praetiee for any person or the person's agent or
employee to eommit an aet which directly or indirectly results in any
distinction, restriction, or discrimination, or the requiring of any person to
pay a larger sum than the uniform rates eharged other persons, or the
refusing or withholding from any person the admission, patronage, eustom,
presenee, frequenting, dwelling, staying, or lodging in any plaee of public
. . . accommodation,. . . except for conditions and limitations established
by law and applieable to all persons, regardless of.. . sex.
RCW 49.60.215(1). While we have decided cases that involve sexual harassment in the
workplace and discrimination in places of publie accommodation, we have not had
oeeasion to determine what legal standard is appropriate for imposing liability on a
proprietor of a plaee of public accommodation for alleged sexual harassment by a
nonsupervisory employee.
In Glasgow, we held that a elaim for sexual harassment in the workplace requires
the employee to establish four elements:
No. 95205-1
Madsen, J., dissenting
(1) The harassment was unwelcome. . . . (2) The harassment was because of
sex. . . . (3) The harassment affected the terms or conditions ofemployment.
. . . (4) The harassment is imputed to the employer.
103 Wn.2d at 406-07(emphasis added)(formatting omitted). To detemiine whether the
harassment can be imputed to the employer, we stated:
Where an owner, manager, partner or corporate officer personally
participates in the harassment, this element is met by such proof. To hold
an employer responsible for the discriminatory work environment created
by a plaintiffs supervisor(s) or co-worker(s), the employee must show that
the employer(a) authorized, knew, or should have known of the harassment
and (b)failed to take reasonably prompt and adequate corrective action.
This may be shown by proving (a) that complaints were made to the
employer through higher managerial or supervisory personnel or by
proving such a pervasiveness of sexual harassment at the workplace as to
create an inference of the employer's knowledge or constructive knowledge
of it and (b)that the employer's remedial action was not of such nature as
to have been reasonably calculated to end the harassment.
Id. at 407. In other words, unless the employer knew of, should have known of, or
participated in the alleged sexual harassment, it will not be liable for a nonsupervisory
employee's actions. In my view, we should apply the Glasgow standard relied on by the
trial court, which includes consideration of whether the harassment should be imputed to
the employer.
According to the majority, the legal framework used by this court in Fell v.
Spokane Transit Authority, 128 Wn.2d 618, 911 P.2d 1319(1996), applies to this case.
Under that framework, the plaintiff must establish four elements "[t]o make out a prima
facie case under the WLAD for discrimination in the public accommodations context,"
(1)that the plaintiff is a member of a protected class, RCW 49.60.030(1);
(2)that the defendant is a place of public accommodation, RCW 49.60.215;
(3)that the defendant discriminated against the plaintiff, whether directly or
No. 95205-1
Madsen, J., dissenting
indirectly, id.; and (4)that the discrimination occurred "because of the
plaintiffs status or, in other words, that the protected status was a
substantial factor causing the discrimination, RCW 49.60.030.
State V. Arlene's Flowers, Inc., 187 Wn.2d 804, 821-22, 389 P.3d 543 (2017)(citing fe//,
128 Wn.2d at 637 ("setting forth elements of prima facie case for disability
discrimination under RCW 49.60.215")). Applying this standard, the majority holds that
a business proprietor is directly liable, imposing a strict, vicarious liability standard for
employees, regardless of the employer's knowledge of the harassing conduct or the
opportunity to address the behavior or to discipline the perpetrator.
The majority rejects the Glasgow test here because it says that the legislature
intended to impose direct liability on all employers for harassing conduct by any
employee in any entity defined as a public accommodation. The majority says this result
is mandated by the language ofRCW 49.60.215(1), which says, "It shall be an unfair
practice for any person or the person's agent or employee to commit an act which directly
or indirectly results in any . . . discrimination." But this language does not justify such
draconian results.
First, the plain language of RCW 49.60.215(1) does not clearly impute an agent's
acts to an employer, nor does a liberal reading of the statute reach this conclusion.
Instead, the plain language of the statute merely states it is an unfair practice for a person
to commit the discriminatory act—^whether it is "the person" or the "agent" or
"employee" of the person. RCW 49.60.215(1). Plainly, the persons who commit the act,
or the agents, or the employees themselves will be directly liable for their own conduct.
No. 95205-1
Madsen, J., dissenting
Thus, it seems clear the legislature chose to expand who could be held accountable for
their own actions in the public accommodations context by including the language "any
person or the person's agent or employee" in an attempt to further its purpose of
eradicating discrimination. RCW 49.60.215(1),.010. But broadening who may be
directly liable for their own conduct, or even the conduct of others as the majority asserts,
tells us nothing about whether the legislature intended to impose strict liability on
employers who had no reason to know ofthe discriminatory conduct.
Although the majority argues the use of"any person or the person's agent or
employee"justifies the imposition of strict vicarious liability because it must "mean
something more than that each person is liable for their own actions," majority at 13, it
fails to explain or justify departing from our principles of statutory interpretation for
determining when a statute imposes strict liability. "Washington courts will not construe
a statute to impose strict liability absent a clear indication that the Legislature intended to
do so." Wright v. Engum, 124 Wn.2d 343, 349, 878 P.2d 1198(1994)(citing Hyatt v.
Sellen Constr. Co., 40 Wn. App. 893, 897, 700 P.2d 1164 (1985)). In Wright, we rejected
the plaintiffs argument to impose strict liability relating to our state's "White Cane
Law," RCW 70.84.040. The plaintiff argued that the language stating a driver who fails
to take "all necessary precautions to avoid injury" "shall be liable in damages for any
injury caused such pedestrian" indicates the legislature intended to impose strict liability.
Wright, 124 Wn.2d at 348.^ The statute, he argued, is similar to the "dog biting" statute.
The statute in its entirety reads:
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Madsen, J., dissenting
which has been construed to create statutory strict liability.^ See Beeler v. Hickman, 50
Wn. App. 746, 751-52, 750 P.2d 1282(1988). The Beeler court noted that the statute,
RCW 16.08.040, addresses the knowledge requirement stating that an owner is liable
"regardless" ofthe "owner's knowledge ofsuch viciousness." Rem. Rev. Stat. §
3109-1 (Supp. 1941). "[B]y dispensing with the knowledge requirement, the statute was
in derogation ofcommon law." Wright, 124 Wn.2d at 349.
We emphatically rejected creating strict liability in this instance because while the
"Legislature intended to enhance protection for blind pedestrians, we disagree that this
enhanced protection was intended regardless of whether a motorist was aware ofthe
pedestrians' impairment." Id. at 351. When the statute is read as a whole, it is clear the
"Legislature has provided enhanced protection for blind pedestrians only where there is
The driver of a vehicle approaching a totally or partially blind pedestrian who is
carrying a cane predominantly white in color (with or without a red tip), a totally
or partially blind or hearing impaired pedestrian using a guide dog, or an
otherwise physically disabled person using a service dog shall take all necessary
precautions to avoid injury to such pedestrian. Any driver who fails to take such
precaution shall be liable in damages for any injury caused such pedestrian. It
shall be unlawful for the operator of any vehicle to drive into or upon any
crosswalk while there is on such crosswalk, such pedestrian, crossing or
attempting to cross the roadway, if such pedestrian indicates his intention to cross
or of continuing on, with a timely warning by holding up or waving a white cane,
using a guide dog, or using a service dog. The failure of any such pedestrian so to
signal shall not deprive him of the right of way accorded him by other laws.
Former RCW 70.84.040(1985).
^ The "dog biting" statute in relevant part reads:
The owner of any dog which shall bite any person while such person is in or on a
public place or lawfully in or on a private place including the property ofthe
owner of such dog, shall be liable for such damages as may be suffered by the
person bitten, regardless oftheformer viciousness of such dog or the owner's
knowledge ofsuch viciousness.
Rem.Rev. Stat. § 3109-1 (Supp. 1941)(emphasis added).
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Madsen, J., dissenting
some conduct... or indication ... by the pedestrian that he or she is sight or hearing
impaired." Id. at 352. Thus, we held that RCW 70.84.040 creates liability only where a
driver had notice of the victim's impairment.
It must be clear that the legislature intended to impose strict vicarious liability
before we construe the statute to give that effect. The legislature knows when it wishes
to create strict liability and is clear when doing so. The "dog biting" statute is an
example of this, where it does not matter whether the owner is aware ofthe dog's
dangerous propensities and the statute explicitly states that. We construe statutes to
"avoid 'absurd or strained consequences.'" Wright, 124 Wn.2d at 351 (quoting In re
Eaton, 110 Wn.2d 892, 901,757 P.2d 961 (1988)). In stark contrast, RCW 49.60.215 is
silent as to when an employer may be held liable for the acts of an employee or agent.
If we adopt the majority's reading ofthe statute, it would be more reasonable to
impose strict vicarious liability on employers under RCW 49.60.180(3)(workplace
discrimination) than in the context of public accommodations because the statute clearly
states employers will be liable for discrimination occurring in the terms or conditions of
employment. That statute, like RCW 49.60.215, is silent as to when an employer is
vicariously liable for the acts of an employee. Thus, based on the majority's rationale, it
necessarily follows that the employer under RCW 49.60.215 should be strictly liable for
discrimination occurring in the "terms and conditions of employment." Yet, we did not
interpret the workplace harassment statute so broadly. Instead, we applied a "knew or
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should have known" standard to determine when employers should be vicariously liable
in the workplace context.
In Glasgow, we held that an employer should at least be aware of the misconduct
in order to hold it vicariously liable for the acts of an employee. In creating the Glasgow
test, we found the Minnesota Supreme Court's rationale persuasive:
In our view, the [Minnesota Human Rights] Act does not impose a
duty on the employer to maintain a pristine working environment. Rather,
it imposes a duty on the employer to take prompt and appropriate action
when it knows or should know of co-employees' conduct in the workplace
amounting to sexual harassment.
Cont'l Can Co. v. State, 297 N.W.2d 241, 249(Minn. 1980). Further, we found
actions under Title VII ofthe Civil Rights Act of 1964 persuasive in implementing
a knowledge element to vicarious liability under the workplace harassment statute.
See Glasgow, 103 Wn.2d at 406 n.2.'' Thus, we held that an employer is
vicariously liable under the WLAD where the act is silent. However, based on the
fact that an employer is in the best position to rectify the misconduct only when it
^ See generally Barrett v. Omaha Nat'I Bank, 726 F.2d 424,427(8th Cir. 1984)("Sexual
harassment by a co-employee is not a violation of Title VII unless the employer knew or should
have known ofthe harassment and failed to take immediate and appropriate corrective action.");
Katz V. Dole, 709 F.2d 251, 255 (4th Cir. 1983)("[T]he most difficult legal question . ..
concem[s] the responsibility ofthe employer for that harassment. . .. [T]he plaintiff will have
the additional responsibility of... holding the employer liable under some theory of respondeat
superior. We believe ... the plaintiff must demonstrate that the employer had actual or
constructive knowledge of the existence of a sexually hostile working environment and took no
prompt and adequate remedial action."); Henson v. City ofDundee,682 F.2d 897, 905 (11th Cir.
1982)("the plaintiff. . . must show that the employer knew or should have known of the
harassment in question and failed to take prompt remedial action"); Bundy v. Jackson, 205 U.S.
App. B.C. 444, 641 F.2d 934, 943 n.8 (1981)("The employer, in full knowledge of the alleged
offense and having received a formal complaint, was in the best position to correct the offenses,
yet impeded the complaint—and even abetted the offenses.").
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Madsen, J., dissenting
is aware or should be aware ofthe misconduct, we believed a "knew or should
have known" standard was appropriate to fairly hold employers accountable for
the acts of their employees under RCW 49.60.180(3).
Again, we are faced with a statute that is silent as to when an employer should he
held liable for the discriminatory acts of an employee or agent in RCW 49.60.215 (public
accommodation). For the same reasons we articulated in Glasgow, where the statute is
silent, vicarious liability should be imposed only where the business owner knew or
should have known of the discrimination.
To impose strict vicarious liability in the public accommodations context but not
in the workplace setting affords greater protection against discrimination for business
customers than for employees who rely on continued employment and, therefore, have
fewer options than a business customer. It makes no sense that a business proprietor
enjoys more protection for instances of workplace discrimination where they are more
likely to know of discrimination directed at other employees within the workplace than
instances where a nonsupervisory employee discriminates against a fleeting patron. An
employer should at least be in the best position to rectify the misconduct before we
impose strict vicarious liability for the conduct of its employees.
Fell does not dictate a different result. In that case the alleged discriminatory
action was the official act of those in control of the public accommodation, not a
nonsupervisory employee as we have here. Fell, 128 Wn.2d 618 (discruninatory act was
the decision to eliminate service—made by board of directors). This case never
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considered imposing strict vicarious liability because the issue was not presented. The
majority's reliance on Fell on the issue of imputed liability is misplaced.
Perhaps more importantly, the majority's holding does little to eradicate
discrimination in places of public accommodation. An employer can timely take action,
even terminating the accused employee when it becomes aware of the allegations. Yet
even such action will not allow the diligent employer to avoid strict liability. This is an
unreasonable and illogical outcome that will have grave implications for how employers
conduct themselves in the public accommodations context.
While the majority says that its goal is to eradicate discrimination in places of
public accommodation, applying strict liability does not achieve that purpose. Unless the
employer knows or has reason to know of a low-level employee's conduct, the employer
cannot address the conduct. Imposing strict liability will more likely result in
management by lawsuit. I cannot imagine that was the legislature's intent when enacting
RCW 49.60.215.
Because discrimination in places of public accommodation should be analyzed
under the same standards as workplace harassment, I respectfully dissent.
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) .
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