Washington: Employers Have Strict Liability for Employees’ Discriminatory Conduct Toward Non-Employees

APPLIES TO

All Public Accommodation Employers with WA Employees

EFFECTIVE

January 31, 2019

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(888) 378-2456

In Floeting v. Group Health Collective, the Washington Supreme Court stated that employers are strictly liable for discriminatory conduct employees engage in toward non-employees in places of public accommodation, even if the employer did not know about the behavior. Places of public accommodation are defined as all facilities used by the public, such as banks, hotels, restaurants, medical provider’s offices, education facilities, etc.

The Washington Law Against Discrimination (WLAD) requires places of public accommodation to be free from discrimination. In Floeting, a medical clinic patient was harassed by an employee. The clinic immediately investigated the claim and terminated the employee.  Nonetheless, the patient sued the clinic for sexual harassment under WLAD.

The Court noted that because public protections from harassment are different than employee protections, foreseeability is irrelevant, and the harassing behavior does not need to be severe or pervasive. Rather, “the asserted discriminatory conduct must be objectively discriminatory … 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.” Employers must take extra care to ensure employees behave appropriately with the public, or otherwise face significant exposure.

Action Items

  1. Have discrimination and harassment policies updated for compliance.
  2. Have all employees trained on discrimination and harassment prevention.
  3. Implement complaint and investigation procedures for swift management of claims.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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