In January 2019, the Washington Supreme Court affirmed Floeting v. Group Health Cooperative, a 2017 decision finding that the Washington Law Against Discrimination (WLAD) provides protection against sexual harassment or abuse in places of public accommodation.
What is WLAD (Washington Law Against Discrimination)?
Simply put, an employer can be held directly liable when one of its employees or agents sexually harasses a customer, student, or patient. Previously, victims seeking to hold an employer liable would need to prove facts showing they negligently hired, supervised, or trained the employee; the employee’s past conduct made the misconduct foreseeable; the misconduct occurred while the employee was performing work duties; or the employer participated in the misconduct. The WLAD allows victims to bypass these all-too-often insurmountable hurdles.
Floeting v. Group Health Cooperative identified four elements that must be proven:
- The plaintiff is a member of a protected class
- The defendant is a place of public accommodation
- The defendant, directly or indirectly, discriminated against the plaintiff
- The discrimination occurred because of the plaintiff’s status, or the protected status was a substantial factor in causing the discrimination.
Plaintiff is a member of a protected class:
As to the first element, the WLAD serves to protect males and females equally, and a plaintiff can be a member of a protected class regardless of gender. The court in the Floeting case found that the plaintiff simply must establish that the plaintiff is female and the harasser is male or vice versa. The court left for another day the scenario of same-sex harassment or abuse.
Defendant is a place of accommodation:
As to the second element, the WLAD provides a long list of establishments that qualify as “places of public accommodation.” The definition includes places that charge for admission; places that sell goods; merchandise and services; daycare centers; places that provide medical care; places where food and beverages are sold for consumption on the premises; public educational institutions; places that provide entertainment or recreation; and several others. Any of these places would satisfy this second element.
Defendant, directly or indirectly, discriminated against the plaintiff:
The third element is relatively simple: sexual harassment or abuse is discrimination.Floeting v. Group Health Cooperative found that “the WLAD prohibits sex discrimination in places of public accommodation” and “sexual harassment is a form of sex discrimination.” In summary, if you were sexually harassed by an employee of a place of public accommodation, you have likely suffered discrimination.
Discrimination occurred because of the plaintiff’s status:
As to the final element, the discrimination must have occurred either (1) because of the plaintiff’s status as a member of a protected class or (2) such status was a substantial factor in causing the discrimination. In other words, the plaintiff’s gender must have been a substantial factor in the harassment taking place.
Handling Instances of Sexual Harassment or Abuse in Places of Public Accommodation:
This article and the decision in Floeting has focused particularly on sexual harassment. It is important to note, however, that misconduct such as sexual abuse, molestation and rape would also be viable claims subject to the same analysis.
The WLAD has made it easier for employers to be held responsible for their employees’ misconduct, and rightfully so.
If you or a loved one has fallen victim to sexual misconduct in a place of public accommodation, contact the experienced attorneys at Washington Law Center to recover compensation and put employers on notice that their employees’ sexually discriminatory misconduct will not be tolerated. Call us today to learn more.