The Washington Law Against Discrimination (WLAD) prohibits “places of public accommodation” from discriminating against their customers on the basis of several protected characteristics, including, without limitation, sex, race, national origin, and sexual orientation. Sexual harassment is one prohibited form of such sex-based discrimination.  Generally speaking, a place of public accommodation is any business that is open to the public.

On January 31, 2019, the Washington Supreme Court announced a new sexual harassment standard for places of public accommodation. In so ruling, the Court held that, under the WLAD, employers are “directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Floeting v. Group Health, Inc., No. 95205-1.

The plaintiff in Floeting was a hospital patient who alleged he was sexually harassed by a hospital employee. The Washington Supreme Court held that because the WLAD forbids discrimination in places of public accommodation such as a hospital, the hospital was liable for its employee’s discrimination against the patient.  In so doing, the Court announced a “strict liability” standard under which employers who are places of public accommodation are liable whenever their employees cause such a prohibited harm “even if [the employer] did not participate in the discrimination and was not negligent in training or supervising its employees.”

To date, generally, employers have been held liable for a non-supervisory employees’ sexual harassment only when the employer knew or should have known of the sexual harassment and failed to take corrective action to stop the harassment.  Floeting’s majority opinion, signed by seven of the nine Washington Supreme Court’s justices, concluded that claims of sexual harassment in the public-accommodation context deserved different treatment than in the employment context because of differences in the wording of the relevant parts of the WLAD. The majority opinion did not engage with the practical problem the dissent pointed out: that “[i]t 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 fleeing patron.”

The Floeting majority sidestepped this problem. The justices asserted that their decision “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.” This admission from the Floeting majority appears to offer a glimpse of the Court’s cynicism toward businesses’ efforts to prevent workplace discrimination; in the majority’s view, businesses go to great lengths to scapegoat employees to avoid liability when they ought to be policing employees’ conduct to prevent sexual harassment in the first place.

In the wake of Floeting, places of public accommodation need, now more than ever, to take steps to prevent and redress harassment and discrimination against customers.  This should include, at a minimum, having sound anti-discrimination policies with effective procedures for reporting harassment and discrimination, and training of all employees about their behavioral obligations to each other and members of the public who visit their place of employment.