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

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.