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Strict Liability for Public Accommodation Entities When an Employee Harasses a Customer—Even If the Entity Terminates the Employee

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A little over a year ago, we told you about the decision by the Washington Court of Appeals in Floeting v. Group Health, holding that a place of public accommodation can be held liable for its employee’s sexual harassment of a patient under the Washington Law Against Discrimination (WLAD), even though it terminated the employee after learning of the harassment.

On January 31, 2019, the Washington Supreme Court affirmed this decision, and emphasized that entities constituting places of public accommodation will be held strictly liable if any employee or agent sexually harasses a member of the public. “Strict liability” means that the employer is liable even when it did not act negligently and lacked any intent to do harm, regardless of whether the employer took action once it learned of the harassment or discrimination.

What is a place of public accommodation? The WLAD provides a nonexhaustive list of entities that can be places of public accommodation, including places that charge for admission, service, occupancy, or use of any property or facilities; places of entertainment or recreation; retail outlets; public conveyance or transportation; restaurants; health care providers, schools of special instruction, nursery schools, and day care centers; and more. There are some important exceptions, such as private clubs (except as they may rent out their facilities to the public) and schools and cemeteries operated by religious or sectarian institutions. Any entity that is uncertain whether it is a place of public accommodation under the WLAD should consult with an attorney.

What protected categories apply in public accommodation claims? While the Floeting case was about sexual harassment, its holding applies to claims of harassment or discrimination based on any of the WLAD-protected characteristics. WLAD prohibits discrimination in public accommodation based on the following characteristics: race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, and the use of a trained dog guide or service animal by a person with a disability.

What conduct is unlawful harassment that can lead to liability? Actionable discrimination (including harassment) under the WLAD public accommodation provisions is conduct toward a person that (1) is different than conduct toward people outside the protected category and (2) makes a person feel “not welcome, accepted, desired, or solicited.” The conduct must be both objectively and subjectively discriminatory, and the individual’s membership in a protected category must be a substantial factor in the conduct. Conduct is objectively discriminatory when a reasonable person who is a member of the protected class at issue would feel that it was discrimination.

The Washington Supreme Court identified three defenses to a claim of discrimination/harassment in a place of public accommodation: (1) the alleged discrimination did not happen at all; (2) the conduct was not objectively or subjectively discriminatory; or (3) the person committing the discrimination was not the entity’s employee or agent.

The Court explicitly rejected the argument that the conduct must be severe or pervasive before the entity could be liable. To the contrary, a single discriminatory act in a place of public accommodation may violate the WLAD, even if not severe.

Who can be liable? The WLAD prohibits “any person or the person’s agent or employee” from discriminating in public accommodation. While in Floeting, the named defendant was the health care facility employing the alleged harasser, “person” is defined broadly, and includes individuals, partnerships, associations, organizations, corporations, cooperatives, trustees, owners, proprietors, and managers.

What are the potential damages? The same potential damages under the WLAD that are available in employment claims are available in a public accommodation claim, including actual damages (e.g., economic damages, emotional distress, pain and suffering) and the individual’s attorney fees. Additionally, unlike a claim of employment discrimination, a claim of public accommodation discrimination could also lead to an award of treble damages (up to $25,000) under the Washington Consumer Protection Act.

What should places of public accommodation do? Since an entity will be strictly liable if its employee or agent discriminates in a place of public accommodation, the best course of action is to take preventive steps, similar to what an employer does to prevent harassment or discrimination from occurring in the employment context, including training employees on what may constitute discrimination or harassment. Likewise, although a business might still be held liable even if it takes corrective action after learning that an employee or agent engaged in conduct that might be discriminatory, the corrective action could significantly limit potential damages.

Please contact us if you have any questions regarding this decision and its potential impact on your business.