In Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019), the Washington State Supreme Court addressed sexual harassment under the Washington Law Against Discrimination (WLAD), RCW 49.60, within the context of public accommodations discrimination.
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SNAPSHOT: This is a case summary of Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information.)
I. SNAPSHOT
case citation
Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019)
DESCRIPTION
“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.’ ” Floeting, 192 Wn.2d at 850-51 (citing RCW 49.60.215).
“Christopher Floeting alleges that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment.” Id. at 851.
“Sexual harassment is a form of sex discrimination.” Id.
“Group Health argues that we should import workplace sexual harassment doctrines into the public accommodations context, categorically limiting employer liability.” Id.
“We decline to do so and affirm.” Id.
CATEGORIES
(1) Sexual Harassment
(2) Public Accommodations
LEGAL TREEs
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CASE SUMMARY SECTION: The following section contains facts and enumerates material evidence that the Court considered in this case.
II. CASE SUMMARY
FACTS (10 Total):
[1] “Floeting had been a member and patient of Group Health, a nonprofit health care system, for over 35 years.” Floeting, 192 Wn.2d at 851.
[2] “Group Health is a place of public accommodation. ” Id.
[3] “Floeting alleges that beginning in July 2012, he was repeatedly sexually harassed by a Group Health employee during his regularly scheduled medical appointments.” Id.
[4] “He filed a complaint with Group Health, and Group Health investigated.” Id.
[5] “Two weeks later, Group Health terminated the employee.” Id.
[6] “Floeting sued Group Health for the unwelcome and offensive sexual conduct he experienced.” Id.
[7] “The trial court dismissed his claim on summary judgment, presumably pursuant to Group Health’s argument that the employment discrimination standard applies.” Id. (footnote omitted).
[8] “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[ ][;] [i]n 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.” Id. at 870 n.1.
[9] “The Court of Appeals reversed.” Id. at 851 (citing Floeting v. Grp. Health Coop., 200 Wn.App. 758, 403 P.3d 559 (2017)).
[10] “We granted review.” Id. (citing Floeting v. Grp. Health Coop., 190 Wn.2d 1007, 409 P.3d 1063 (2018)).
Floeting v. Group Health Cooperative, 192 Wn.2d 848 (Wash. 2019).
GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.
III. GENERAL RULES
The General Rules Section for this case includes the following topics:
1. Standard of Review;
2. Washington Law Against Discrimination
1. STANDARD OF REVIEW
(A) QUESTIONS OF LAW
DE NOVO REVIEW: “Since both of Group Health’s challenges present questions of law, our review is de novo.” Floeting, 192 Wn.2d at 852 (citing Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59 P.3d 655 (2002) (citing State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001))).
(B) PLAIN LANGUAGE RULE
PLAIN LANGUAGE RULE: “When reviewing a statute, the court will give effect to the statute’s plain language.” Id. (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)) (hyperlink added).
CONSIDERATIONS: “In determining if the statute is plain, we will consider the ordinary meaning of words, basic rules of grammar, and statutory context.” Id. (citing Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 435, 359 P.3d 753 (2015)) (hyperlink added).
(C) STANDARDS OF CONDUCT & ATTENDANT RULES OF LIABILITY
“It is the province of the legislature to establish standards of conduct and attendant rules of liability.” Id. at 856 (internal citations omitted).
2. WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
(A) POLICY
PRACTICES OF DISCRIMINATION: “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.'” Id. at 852 (citing RCW 49.60.010). (alterations in original).
PLACES OF PUBLIC ACCOMMODATION: “The legislature has also directed … [the courts] to liberally construe WLAD to eradicate discrimination, including discrimination in places of public accommodation.” Id. (citing RCW 49.60.010, .020; see also Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d 607, 614, 404 P.3d 504 (2017) (“quoting Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996)”)).
“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.” Id. at 855 (internal citations and quotation marks omitted).
(B) PLACES OF PUBLIC ACCOMMODATION
FREEDOM FROM DISCRIMINATION–DECLARATION OF CIVIL RIGHTS (RCW 49.60.030(1)(B)): “Under RCW 49.60.030(1)(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.'” Floeting, 192 Wn.2d at 852-53 (referencing RCW 49.60.040(14)) (hyperlink added).
MEANING OF “FULL ENJOYMENT”: Thus, “WLAD protects the customer’s ‘full enjoyment’ of the services and privileges offered in public accommodations.” Id. at 855 (citing RCW 49.60.030(1)(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.'” Id. (citing RCW 49.60.040(14)). “Denial or deprivation of services on the basis of one’s protected class is an affront to personal dignity.” Id. (internal citations omitted).
(1) Strict Liability
THE TEST: “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.” Id. at 859.
BLACK’S LAW DICTIONARY: “According to Black’s Law Dictionary, ‘strict liability’ is ‘[l]iability 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.'” Floeting, 192 Wn.2d at 859 (citing BLACK’S LAW DICTIONARY 1055 (10th ed. 2014)) (alteration in original).
EMPLOYER LIABILITY: Under public accommodation law, an employer “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.” See id. “Therefore, … [an employer] is subject to strict liability for the discriminatory conduct of its employee in a place of public accommodation. See id.
PUBLIC ACCOMMODATIONS (SEX): “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.
Id. at 859.
DEFINITION OF 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.” Id. at 859-60 (citing RCW 49.60.040(19)) (emphasis in original).
INTERPRETATION: “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.” Id. at 860. “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.” Id.
(2) Sexual Harassment
“Sexual harassment is a form of sex discrimination, which we analyze like other forms of discrimination in places of public accommodation.” Id. at 853 (internal citations omitted).
(3) The Prima Facie Case: Public Accommodation
THE FELL STANDARD (RCW 49.60.215): “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.” Floeting, 192 Wn.2d at 853 (referencing Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996)) (footnote omitted). “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 plaintiff’s protected status was a substantial factor that caused the discrimination.
Floeting, 192 Wn.2d at 583-84 (citing Fell, 128 Wn.2d at 637) (internal citations omitted) (paragraph formatting, hyperlink, and emphasis added).
(4) No WLAD Amendments
“In all the time since [Fell v. Spokane Transit Auth.], the legislature has not seen fit to amend WLAD to impose a different standard on claims of discrimination in places of public accommodation.” Id. at 854.
(5) Reasonable Person Test Applied In Public Accommodations Context:
“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 plaintiff’s 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.
Id. at 858 (citing Floeting v. Grp. Health Coop., 200 Wn.App. at 758, 773-74, 403 P.3d 559 (2017)) (alterations and emphasis in original) (hyperlinks added). “This is the reasonable person test applied in the public accommodations context.” Id. (internal citation omitted).
(6) Not A Negligence Statute: Foreseeability Irrelevant
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.” Floeting, 192 Wn.2d at 856.
(7) No Pervasiveness Or Severity Requirement: A Single Act May Violate WLAD
“There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.” Id. at 858 (referencing ch. 49.60 RCW) (footnote omitted). “A single discriminatory act in a place of public accommodation may violate WLAD.” Id. (referencing, e.g., King v. 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 of two 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)).
(8) Must Show More Than Subjectively Offensive Rhetoric
“[W]e stress that plaintiffs must show more than ‘mere rhetoric that is subjectively offensive.'” Id. at 858 (internal citations omitted).
(9) Inquiry Is Whether Actions Resulted In Discrimination Not Whether Intent To Discriminate
The focus of the “liability inquiry [is] on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate.” See id. at 853. This is based upon the following broad standard:
(a) WLAD: “any person or the person’s agent or employee”
The 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.” Id. at 853 (referencing RCW 49.60.215) (emphasis and alteration in original).
Accordingly, “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.” Id. at 856 (citing RCW 49.60.215) (emphasis added).
DIRECT LIABILITY: “This provision imposes direct liability on employers for the discriminatory conduct of their agents and employees.” Id. at 856. “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, 192 Wn.2d at 856 (citing Floeting v. Grp. Health Coop., 200 Wn.App. 758, 770, 403 P.3d 559 (2017)) (hyperlink added).
(C) EMPLOYMENT CONTEXT
THE PRIMA FACIE CASE: “In the employment context, a 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.
Id. at 854 (citing 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”)) (paragraph formatting and emphasis added).
(D) EMPLOYMENT vs. PUBLIC ACCOMMODATION
(1) Washington State
In Washington State, “we treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently.” Id. at 854.
(2) Employment
“An employee alleging employment discrimination must show that the misconduct affected the ‘terms or conditions of [their] employment.'” Id. at 854 (citing RCW 49.60.180(3); Glasgow, 103 Wn.2d at 405-06, 693 P.2d 708) (alteration in original). “The employment discrimination statute is limited to unfair practices by an ’employer’ by operation of the language “It is an unfair practice for any employer[ ] [t]o …” Id. at 854-55 (citing RCW 49.60.180) (alterations in original).
(3) Public Accommodation
NOT LIMITED BY TERMS OR CONDITIONS OF PUBLIC ACCOMMODATION: “In contrast, WLAD provisions prohibiting discrimination in a public accommodation do not limit themselves to the ‘terms or conditions’ of a public accommodation.” Id. at 855 (referencing RCW 49.60.215).
DISCRIMINATION BY ANY PERSON OR PERSON’S AGENT OR EMPLOYEE: “Discrimination by ‘any person or the person’s agent or employee’ is an unfair practice in a public accommodation … in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees.” Id. (citing RCW 49.60.040(19)( (internal citation omitted).
(E) DIRECT & VICARIOUS LIABILITY
UNLIKE FEDERAL LAW, WLAD SUPPORTS A READING OF BOTH DIRECT AND VICARIOUS LIABILITY: “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[ ][;] [u]nlike federal law, the comprehensive language in WLAD supports a reading of both direct and vicarious liability.” Id. at 870 n.4. (referencing RCW 49.60.215).
ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.
IV. ISSUES
ISSUE #1: Are employers directly liable for the discriminatory actions of their employees toward customers in a place of public accommodation?
(A) YES: UNDER THE PLAIN LANGUAGE OF WLAD, EMPLOYERS ARE DIRECTLY LIABLE FOR THEIR EMPLOYEES’ DISCRIMINATORY CONDUCT TOWARD A CUSTOMER IN A PLACE OF PUBLIC ACCOMMODATION
RULE: See § III(2) (General Rules: Washington Law Against Discrimination), supra.
(1) “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.” Id. at 856.
“RCW 49.60.215[ ] … 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, 192 Wn.2d at 856 (citing Floeting, 200 Wn.App. at 770, 403 P.3d 559) (paragraph formatting added).
a) RCW 49.60.215 is not a negligence statute where foreseeability matters
EMPLOYER ARGUMENT (NO LIABILITY FOR UNFORESEEABLE ACTS OF EMPLOYEE): “Group Health contends that it should not be held liable for ‘unforeseeable acts of an employee.'” Id. (internal citation omitted).
COURT’S ANALYSIS: “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.” Floeting, 192 Wn.2d at 856.
b) “[A] rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.’ “
EMPLOYER ARGUMENT (APPLY DIFFERENT STANDARDS FOR FRONTLINE EMPLOYEES): “Group Health also contends that we should apply a different standard to the acts of frontline employees than we do to supervisors.” Id.
COURT’S ANALYSIS: “Nothing in the text of WLAD supports that approach.” Id. at 856-57. “[A] rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.” Id. at 857 (alteration in original) (internal citations, footnote, and quotation marks omitted). According to the Court:
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.
Floeting, 192 Wn.2d at 870 n.4 (paragraph formatting and hyperlink added).
c) The Court cannot ignore both the plain language of the statute and the larger statutory scheme
EMPLOYER ARGUMENT (AGENCY/VICARIOUS LIABILITY): “Group Health suggests we should apply an agency or vicarious liability lens to employer liability for employee conduct under RCW 49.60.215.” Floeting, 192 Wn.2d at 857 (hyperlink added).
COURT’S ANALYSIS: “This would require us to ignore both the plain language of the statute and the larger statutory scheme.” Id.
THE STATUTE & 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.” Id. at 857 (citing RCW 49.60.215).”Of the fourteen ‘unfair practices’ provisions under WLAD, employers are directly liable for the acts of employees in only two instances[ ]”; one of those instances is “the relevant public accommodations provision ….” Id. This provisions’ “direct liability language stands in contrast to the other dozen provisions.” Id. (internal citation omitted).
NO STATUTORY SUPPORT FOR EMPLOYER KNOWLEDGE BEFORE LIABILITY: “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.” Id.
d) “There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.”
EMPLOYER’S ARGUMENT (ADOPT GLASGOW’S SEVERE OR PERVASIVE REQUIREMENT): “Group Health also argues that we should adopt Glasgow’s ‘severe’ or ‘pervasive’ requirement for sexual harassment claims in places of public accommodation.” Id. at 858 (internal citations omitted).
COURT’S ANALYSIS: “We decline to do so. There is no statutorily required pervasiveness or severity requirement for discriminatory conduct in the public accommodations context.” Id. (referencing ch. 49.60 RCW) (footnote omitted). “A single discriminatory act in a place of public accommodation may violate WLAD.” Id. (internal citation omitted). Applying the Reasonable Person Test (see Section III(2)(b)(5), supra), the Court determined:
[T]aking 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.
Id. at 859.
(B) AFFIRMED & REMANDED
“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.” Id. at 582. In other words, “[u]nder the plain language of WLAD, employers are liable for their employees’ discriminatory conduct toward a customer in a place of public accommodation …. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion.” Id. at 861-62.
ISSUE #2: Should the Court import doctrines developed for the employment context into the public accommodations context?
(A) NO: “WE DECLINE TO IMPORT DOCTRINES DEVELOPED FOR THE EMPLOYMENT CONTEXT INTO THE PUBLIC ACCOMMODATIONS CONTEXT.”
RULE: See § III(2)(B) (General Rules: Washington Law Against Discrimination (WLAD)), supra.
(1) “[W]e treat employment discrimination claims differently from public accommodation discrimination claims because WLAD treats them differently.” Id. at 854.
a) The employment discrimination statute is limited to unfair practices by an “employer” unlike the public accommodations statute
EMPLOYER ARGUMENT: “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.” Floeting, 192 Wn.2d at 854. Accordingly, “Group Health argues that the Glasgow employment discrimination standard ‘applies seamlessly’ and therefore it should apply.” Floeting, 192 Wn.2d at 854 (internal citation omitted). Moreover:
[Group Health] … 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.
Floeting, 192 Wn.2d at 854 (internal citation omitted) (hyperlink added).
COURT’S ANALYSIS: “An employee alleging employment discrimination must show that the misconduct affected the ‘terms or conditions of [their] employment.'” Id. at 854 (citing RCW 49.60.180(3); Glasgow, 103 Wn.2d at 405-06, 693 P.2d 708). “The employment discrimination statute is limited to unfair practices by an ’employer’ by operation of the language “It is an unfair practice for any employer[ ] [t]o …” Id. at 854-55 (citing 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.” Id. at 855 (referencing RCW 49.60.215). “Discrimination by ‘any person or the person’s agent or employee’ is an unfair practice in a public accommodation, … [RCW 49.60.215]; in this context, the person subject to WLAD broadly includes, among others, individuals, corporations, owners, proprietors, managers, and employees.” Floeting, 192 Wn.2d at 855 (citing RCW 49.60.040(19)) (hyperlink added).
In this case, “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.” Id.
b) “RCW 49.60.215 [(public accommodations)] … imposes direct liability on employers for the discriminatory conduct of their agents and employees.” Id. at 856.
EMPLOYER ARGUMENT: See Issue #2(A)(1)(a), supra.
COURT’S ANALYSIS: “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, 192 Wn.2d at 856 (citing Floeting, 200 Wn.App. at 770, 403 P.3d 559) (paragraph formatting and hyperlink added).
(B) AFFIRMED & REMANDED
“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.” Floeting, 192 Wn.2d at 861-62.
DISSENT (Madsen, J.)
(A) DISCRIMINATRION IN PLACES OF PUBLIC ACCOMMODATION SHOULD BE ANALYZED UNDER THE SAME STANDARDS AS WORKPLACE HARASSMENT
DISSENT RULE: STRICT LIABILITY: “Washington courts will not construe a statute to impose strict liability absent a clear indication that the Legislature intended to do so.” Id. at 866 (citing 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))). Moreover:
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.
Id. at 867.
DISSENT RULE: VICARIOUS LIABILITY: “[W]e found actions under Title VII of the Civil Rights Act of 1964 persuasive in implementing a knowledge element to vicarious liability under the workplace harassment statute.” Id. at 868 (referencing Glasgow, 103 Wn.2d at 406 n.2, 693 P.2d 708)) (footnote omitted). Accordingly:
[W]e 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 is aware or should be aware of the 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).
Floeting, 192 Wn.2d at 868-69 (hyperlink and emphasis in last sentence added).
(1) It is unclear whether the legislature intended to impose strict vicarious liability as to RCW 49.60.215
DISSENT ARGUMENT: “[B]roadening 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 of the discriminatory conduct.” Id. at 865. “RCW 49.60.215 is silent as to when an employer may be held liable for the acts of an employee or agent.” Floeting, 192 Wn.2d at 867.
MAJORITY: “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, 693 P.2d 708, would significantly undermine the legislature’s clear language. It is the province of the legislature to establish standards of conduct and attendant rules of liability, and the legislature determined direct liability is appropriate here.” Floeting, 192 Wn.2d at 856 (internal citations omitted) (hyperlink and emphasis added).
(2) “[W]here the statute is silent, vicarious liability should be imposed only where the business owner knew or should have known of the discrimination.” Id. at 869.
DISSENT ARGUMENT: “Again, we are faced with a statute that is silent as to when an employer should be 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.” Floeting, 192 Wn.2d at 869 (hyperlink added).
MAJORITY: The statute is not silent. “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.” Floeting, 192 Wn.2d at 860. Accordingly:
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.
Floeting, 192 Wn.2d at 860-61 (alterations in original) (paragraph formatting and emphasis added).
Moreover, “[g]rafting 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, 693 P.2d 708, would significantly undermine the legislature’s clear language. It is the province of the legislature to establish standards of conduct and attendant rules of liability, and the legislature determined direct liability is appropriate here.” Floeting, 192 Wn.2d at 856 (internal citation omitted) (hyperlink added).
(3) “[T]he majority’s holding does little to eradicate discrimination in places of public accommodation.” Id. at 870.
DISSENT ARGUMENT: “Unless the employer knows or has reason to know of a low-level employee’s conduct, the employer cannot address the conduct.” Id. at 879. Moreover:
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.
Floeting, 192 Wn.2d at 870.
MAJORITY: “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. But:
[I]f employers know that the only way they can prevent lawsuits is by preventing their employees from discriminating at all, they will try 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.
Id. at 861 (paragraph formatting added).
(B) DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION SHOULD BE ANALYZED UNDER THE SAME STANDARDS AS WORKPLACE HARASSMENT
“Because discrimination in places of public accommodation should be analyzed under the same standards as workplace harassment, I respectfully dissent.” Id. at 870.
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