Employer Liability for Nonemployee Harassment

Under the Washington Law Against Discrimination (WLAD), can an employer be held liable for nonemployee harassment? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

EMPLOYMENT

In Washington State, “[t]he right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to … [t]he right to obtain and hold employment without discrimination[.]” RCW 49.60.030(1)(a).

HOSTILE WORK ENVIRONMENT (HARASSMENT)

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant hostile-work-environment (harassment) law states as follows:

It is an unfair practice for any employer:

…

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability[.]

RCW 49.60.180(3). “Under RCW 49.60.030(2), a person discriminated against in violation of the WLAD may bring a civil action.” Larose v. King Cnty., 8 Wash.App.2d 90, 104, 437 P.3d 701 (Wash.App. 2019) (hyperlink added).

THE PRIMA FACIE CASE

“To establish a prima facie claim of a hostile work environment the plaintiff must show that:

(1) the harassment was unwelcome,

(2) the harassment was because of … [membership in a protected class],

(3) the harassment affected the terms and conditions of employment, and

(4) the harassment is imputable to the employer.

See id. (citing Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004)) (hyperlinks and paragraph formatting added).

THE FOURTH ELEMENT (IMPUTABLE TO THE EMPLOYER)

When it comes to nonemployee harassment, the issue is whether the harassment can be imputed to the employer. “[H]arassment will be imputed to the employer if an owner, manager, partner or corporate officer personally participates.” Larose, 8 Wash.App.2d at 105 (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985)) (internal quotation marks omitted). “An employer will be responsible for harassment by the plaintiff’s supervisors or coworkers if the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.” Id. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

“A plaintiff can establish knowledge and failure to take adequate corrective action by showing (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. (citing Glasgow, 103 Wash.2d at 407) (internal quotation marks omitted).

In 2019, the Court of Appeals of Washington, Division 2, adopted the federal rule and concluded “that a nonemployee’s harassment of an employee in the workplace will be imputed to an employer if the employer[:]

(a) authorized, knew, or should have known of the harassment and

(b) failed to take reasonably prompt and adequate corrective action.

Id. at 111, (internal citations omitted).

CONCLUSION

Under the Washington Law Against Discrimination, RCW 49.60, “an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace[ ][,]” under certain circumstances.