No employer is happy when an employee harasses a customer. Now there is even more reason to be unhappy: not only will you likely lose the customer’s business, the customer may sue you for harassment in violation of the Washington Law Against Discrimination (the “WLAD”).
Several courts in the past have found that the WLAD applies to claims of disparate treatment discrimination in places of public accommodation. For example, it will come as no surprise to learn that a restaurant would violate the WLAD if it refused service to a customer based on the person’s race. The Washington Court of Appeals has now extended these holdings to apply to harassment by an employee of a place of public accommodation against a customer/patient.
In Floeting v. Group Health Cooperative, (Washington Court of Appeals Case No. 75057-7-1 Oct. 9, 2017), a patient, Floeting, claimed that a Group Health employee had harassed him multiple times over several months, including making inappropriate comments about her sex life, her sexual talents, and the patient’s physical attributes and prowess, and on a few occasions leaning into him and rubbing up against him in a suggestive manner. He repeatedly asked her to stop her comments and behavior.
After Floeting and another patient complained, Group Health investigated and then terminated the employee a few weeks after Floeting’s complaint. Nearly three years later, Floeting filed an action against Group Health, alleging violation of the public accommodations provisions of the WLAD based on unlawful sexual harassment. The trial court dismissed the claims, holding that there could not be a WLAD harassment claim against a place of public accommodation. But the court of appeals reversed, noting that harassment was a form of discrimination and that courts had regularly found that discrimination in places of public accommodation violated the WLAD.
The court of appeals relied on prior discrimination opinions to detail the four elements of a claim of harassment against a place of public accommodation:
1. Member of a protected class: The plaintiff must establish that he is a member of a protected class, in this case “sex,” which is defined by the WLAD as “gender.” The court explicitly declined to hold whether a harassment claim based on sexual orientation could be asserted against a place of public accommodation, and did not address whether any other protected category could be the basis of a claim. It is possible that this holding will be applied to the other public accommodation protected categories: race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breast-feeding her child, and the presence of any sensory, mental, or physical disability. RCW 49.60.215.
2. Place of public accommodation: The plaintiff must establish that the defendant is a place of public accommodation as defined in the WLAD. In Floeting, the court had no trouble concluding that an entity providing medical services is a public accommodation covered by the WLAD. Other examples of places of public accommodation could potentially be movie theaters, public transportation, hotels, funeral services, restaurants, amusement parks, public libraries or educational institutions, and day care centers. RCW 49.60.040(2). The definition is broad, but there are some important exceptions; if you have any questions about whether your business is a “place of public accommodation,” you should consult an attorney.
3. The defendant discriminated against the plaintiff: The plaintiff must prove both that the harassment constituted discrimination (that is, violated the WLAD) and that the defendant was responsible. The court held that for the conduct to be actionable under the WLAD, it must be both objectively and subjectively discriminatory. The court explicitly declined to apply the “severe or pervasive” analysis used in employment cases, instead finding the objective- standard analysis sufficient: was the conduct of a type, or to a degree, that a reasonable person in the same protected class and under the same circumstances would feel discriminated against?
Assuming that the conduct was both objectively and subjectively discriminatory, the court concluded that both Group Health and the employee were directly responsible for the harassment and that each could be held liable. The court reasoned that an employer should be held directly liable for all acts of its employees without the customer's having to prove that an employee was acting within the scope of employment at the time of harassment (that is, without regard to the doctrine of vicarious liability). The court denied that its holding resulted in strict liability for the employer, but plaintiffs’ counsel may contend that in practical effect it is essentially strict liability.
4. Protected category a substantial factor: Finally, the plaintiff must demonstrate that his protected category (in this case, his gender) was a substantial factor motivating the harassment. Given the alleged conduct, the Floeting court determined that there was enough evidence of this factor and the other factors to return the case to the trial court for trial.
At this time, we do not know whether Group Health will appeal this decision or, if it does, whether the Washington Supreme Court will accept review. Likewise, even if the supreme court accepts review, we do not know how it might rule or modify this decision. Until we know more, companies operating places of public accommodation should be alert to possible claims. If a company receives a complaint of harassment from a customer, we recommend that the company consider following some or all of the practices and protocols in place for responding to claims of harassment from employees.
