Under Washington State laws, what is the tort of negligent supervision? Here’s my point of view.
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NEGLIGENT SUPERVISION IN WASHINGTON STATE
“Negligent supervision creates a limited duty to control an employee for the protection of a third person, even when the employee is acting outside the scope of employment.” S.H.C. v. Lu, 113 Wn. App. 511, 517, 54 P.3d 174 (Div. 1 2002) (citing Rodriguez v. Perez, 99 Wn. App. 439, 451, 994 P.2d 874, review denied, 141 Wash.2d 1020, 10 P.3d 1073 (2000) (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997))) (internal quotation marks omitted) (hyperlink added).
“Employer liability for negligent hiring, retention, and supervision arises from this duty.” Id. (emphasis and hyperlinks added). “If an employee conducts negligent acts outside the scope of employment, the employer may be liable for negligent supervision.” Id. (citing Rodriguez, 99 Wn. App. at 451, 994 P.2d 874) (hyperlink added)).
However: “An employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others.” Id. (citing Niece, 131 Wn.2d at 48-49, 929 P.2d 420) (hyperlink added).
THE PRIMA FACIE CASE
To establish a prima facie case of negligent supervision, a plaintiff must show:
(1) an employee acted outside the scope of his or her employment;
(2) the employee presented a risk of harm to other employees;
(3) the employer knew, or should have known of the risk in the exercise of reasonable case that the employee posed a risk to others; and
(4) the employer’s failure to supervise was the proximate cause of injuries to other employees.
Briggs v. Nova Services, 135 Wn. App. 955, 966-67, 147 P.3d 616 (2006) (internal citations omitted) (paragraph formatting added).
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Under the Washington Law Against Discrimination (WLAD), how may a plaintiff establish the fourth element–imputing harassment to employer–when pursuing a claim of hostile work environment? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
It is also an unfair practice for an employer to retaliate (i.e., discharge, expel, or otherwise discriminate) against person because the person complained about any practices forbidden by the WLAD, or because the person has filed a charge, testified, or assisted in any proceeding under WLAD.
In Washington State, the terms “hostile work environment” and “harassment” are synonymous within the context of employment discrimination law. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlinks added); see alsoGlasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985) (explaining what is required to establish a hostile work environment case) . This article will address the fourth element: that harassment can be imputed to the employer.
ELEMENT 4: IMPUTING HARASSMENT TO EMPLOYERS
In Glasgow v. Georgia-Pacific Corp., the Washington State Supreme Court explained how to impute harassment to employers, as follows:
[A. Owners, Managers, Partners or Corporate Officers:]
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.
[B. Supervisors or Co-Workers:]
To hold an employer responsible for the discriminatory work environment created by a plaintiff’s 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 my 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 … harassment [based on a protected class] at the work place 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 reasonable calculated to end the harassment. . . .
[C. Avoiding Liability:]
[A]n employer may ordinarily avoid liability by taking prompt and adequate corrective action when it learns that an employee is being . . . harassed [based on a protected class].
Id. at 407-08 (emphasis and paragraph formatting added) (last alteration in original).
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does an employee establish a claim of sexual harassment in the workplace? Here’s my point of view.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): SEXUAL HARASSMENT IN THE WORKPLACE
“To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]”
Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406-07 (Wash. 1985) (footnote omitted) (hyperlinks and paragraph formatting added). I will discuss each element in turn.
ELEMENT #1 — THE HARASSMENT WAS UNWELCOME
Under the first element, the employee must prove that the harassment was unwelcome. Thus, “[i]n order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.
ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX
The second element of a claim of sexual harassment in the workplace requires the employee show that the harassment was because of sex/gender. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.
ELEMENT #3 — THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT
Pursuant to the third element, the employee must prove that the sexual harassment affected the terms or conditions of employment. “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.
TOTALITY OF THE CIRCUMSTANCES TEST: Washington State courts typically look at the totality of the circumstances to evaluate this element. “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07.
ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER
The final element requires the employee to show the harassment is imputable to the employer; this will depend on the classification of the harassing individual.
(a) Where Owner, Manager, Partner, or Corporate Officer Harasses
“Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
(b) Where Supervisors or Co-Workers Harass
“To hold an employer responsible for the discriminatory work environment created by a plaintiff’s 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.
Id. (emphasis and paragraph formatting added). “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 work place 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. (paragraph formatting and emphasis added).
HOW THE EMPLOYER MAY AVOID LIABILITY
Under WLAD, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).
WLAD REMEDIES
Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)
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HOSTILE WORK ENVIRONMENT (WA STATE)
Under the Washington Law Against Discrimination, RCW 49.60, “an employer may ordinarily avoid liability for … harassment[, based upon an employee‘s membership in a protected class,] by taking prompt and adequate corrective action when it learns that an employee is being [unlawfully] … harassed.” See Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlinks added).
THE PRIMA FACIE CASE (WA STATE)
In Washington, the term “hostile work environment” is synonymous with harassment. “To establish a prima facie hostile work environment claim, a plaintiff must show the following four elements:
Loeffelholz v. University of Washington, 175 Wn.2d 264, 275 (Wash. 2012) (internal citations and quotation marks omitted) (alteration in original) (emphasis and hyperlink added).
-ELEMENT (1): Harassment was unwelcome
“In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (2): The harassment was because of membership in a protected class
“The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been … [outside the protected class]?” See id. “This statutory criterion requires that the [protected class] … of the plaintiff-employee be the motivating factor for the unlawful discrimination.” See id.
-ELEMENT (3): The harassment affected the terms or conditions of employment
“Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id.; cf. Gregory A. Williams, Esq., Stray-Remarks Doctrine and Employment Discrimination (WA State), Williams Law Group Blog, July 30, 2021 (Washington Courts do not apply the Stray-Remarks Doctrine to employment discrimination cases). In addition, “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Glasgow, 103 Wn.2d at 406.
-ELEMENT (4): The harassment is imputable to the employer
WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
WHERE SUPERVISORS OR CO-WORKERS HARASS: “To hold an employer responsible for the discriminatory work environment created by a plaintiff’s 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.
Id. (emphasis and paragraph formatting added). “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 work place 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.”
If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.
