Floeting v. Grp. Health Coop.
Floeting v. Grp. Health Coop.
Opinion of the Court
*850¶ 1 The Washington Law Against Discrimination (WLAD) makes it unlawful for "any person or *851the 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.
BACKGROUND
¶ 2 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.
¶ 3 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.
ANALYSIS
¶ 4 Group Health challenges employer liability for the discriminatory actions of its agents and employees and *852challenges the legal test used by the Court of 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, *41just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.
¶ 5 Since both of Group Health's challenges present questions of law, our review is de novo. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles,
¶ 6 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.Dist.-ESD 171,
¶ 7 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]
*853to 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.
¶ 8 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 treated similarly under the law"); cf. Meritor Sav. Bank, FSB v. Vinson,
¶ 9 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.,
¶ 10 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 *42the 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. Glasgow v. Ga.-Pac. Corp.,
¶ 11 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.
¶ 12 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,
¶ 13 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. ----,
*856¶ 14 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 *43the "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,
¶ 15 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 *857that 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 (quoting Arguello v. Conoco, Inc.,
¶ 16 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. Of the 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,
*858¶ 17 Group Health also argues that we should adopt Glasgow's "severe" or "pervasive" requirement for sexual harassment claims in places of public 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.
¶ 18 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.
Floeting,
¶ 19 That said, we stress that plaintiffs must show more than " 'mere rhetoric that is subjectively offensive.' " Floeting,
*859(quoting Gleason v. Mesirow Fin., Inc.,
¶ 20 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 "[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." 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.
¶ 21 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.
*860RCW 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,
¶ 22 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 48. 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 *861fault by the employer if the discrimination was perpetuated by an employee. The same is not true of RCW 49.60.215.
¶ 23 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 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.
¶ 24 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 of their employees.
CONCLUSION
¶ 25 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 *862Appeals and remand for further proceedings consistent with this opinion.
WE CONCUR:
Fairhurst, C.J.
Johnson, J.
Owens, J.
Stephens, J.
Gordon McCloud, J.
Yu, J.
The trial judge did not explain his reasoning. As it does here, Group Health argued that Glasgow v. Georgia-Pacific Corp.,
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.
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,
Arguello concerns a claim of public accommodations discrimination under the federal civil rights statute
Other jurisdictions have similarly declined to apply employment discrimination standards where irrelevant and inapplicable. See, e.g., City of Minneapolis v. Richardson,
Dissenting Opinion
¶ 26 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 *46it 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-without justification 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"
Discussion
¶ 27 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.
*863Glasgow v. Ga.-Pac. Corp.,
¶ 28 Indeed, the WLAD is clear 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 practice for any person or the person's agent or employee to commit an act 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 charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public ... accommodation, ... except for conditions and limitations established by law and applicable 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 public accommodation, we have not had occasion to determine what legal standard is appropriate for imposing liability on a proprietor of a place of public accommodation for alleged sexual harassment by a nonsupervisory employee.
¶ 29 In Glasgow, we held that a claim for sexual harassment in the workplace requires the employee to establish four elements:
(1) The harassment was unwelcome. ... (2) The harassment was because of sex. ... (3) The harassment affected the terms or conditions of employment. ... (4) The harassment is imputed to the employer.
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such *864proof. 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.
*47Id. at 407,
¶ 30 According to the majority, the legal framework used by this court in Fell v. Spokane Transit Authority,
(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 indirectly, id .; and (4) that the discrimination occurred "because of" the plaintiff's 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.,
¶ 31 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 of RCW 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.
¶ 32 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. 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 of the discriminatory conduct.
¶ 33 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 *866more than that each person is liable for their own actions," majority at 44, 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,
¶ 34 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 of the pedestrians' impairment." Id. at 351,
¶ 35 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 of the dog's dangerous propensities and the statute explicitly states that. We construe statutes to "avoid 'absurd or strained consequences.' " Wright,
¶ 36 If we adopt the majority's reading of the 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 *868to 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 should have known" standard to determine when employers should be vicariously liable in the workplace context.
¶ 37 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:
*49In 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,
*869where 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).
¶ 38 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.
¶ 39 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.
¶ 40 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,
¶ 41 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.
¶ 42 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 *50employer 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.
¶ 43 Because discrimination in places of public accommodation should be analyzed under the same standards as workplace harassment, I respectfully dissent.
Glasgow v. Ga.-Pac. Corp.,
The statute in its entirety reads:
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 of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
Rem. Rev. Stat. § 3109-1 (Supp. 1941) (emphasis added).
See generally Barrett v. Omaha Nat'l Bank,
Reference
- Full Case Name
- Christopher H. FLOETING, Respondent, v. GROUP HEALTH COOPERATIVE, Petitioner.
- Cited By
- 29 cases
- Status
- Published