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November 3, 2017
Customers Can Sue Public Accommodations for Harassment by Employees

Businesses worry about being sued when one employee sexually harasses another employee. Now, a Washington court has given public accommodation businesses one more reason to worry: they can now be sued under the Washington Law Against Discrimination (“WLAD”) when an employee sexually harasses a customer.

The WLAD prohibits places of public accommodation (restaurants, hospitals, etc.) from unlawfully discriminating against customers.  In Floeting v. Group Health Cooperative, (Washington Court of Appeals Case No. 75057-7-1 Oct. 9, 2017), the court held that this prohibition applies to an employee's sexual harassment of a customer/patient.

Floeting was a patient at Group Health. He claimed a female Group Health employee harassed him numerous times over several months by commenting about her sex life and sexual talents and about Floeting's attributes and prowess. She occasionally rubbed suggestively against him. Floeting repeatedly asked her to stop. He complained to Group Health, which fired the employee.

Floeting then sued Group Health, claiming it violated the WLAD based on the employee’s sexual harassment of him. The trial court dismissed Floeting's claims on the basis that the WLAD did not allow harassment claims against public accommodations.

Division One of the court of appeals reversed, holding that sexual harassment was a form of discrimination in places of public accommodation which violated the WLAD. The court’s opinion set out the four elements of a public accommodation harassment claim:

Protected Class: The plaintiff must be in a protected class. The court found Floeting’s male gender put him in a protected class. Although the court did not indicate if a claim could be based on other protected classes, it left the door open to applying this case to similarly protected categories such as race, national origin, sexual orientation, veteran or military status, and the presence of a disability..

Public Accommodation: The defendant must be a place of public accommodation. The court held that an entity like Group Health that provides medical services is a public accommodation. Other public accommodations could be theaters, trains and buses, hotels, restaurants, parks, libraries, schools and child care facilities.

Discrimination: The public accommodation must be legally responsible for the harassment/discrimination that violated the WLAD. The test is whether the conduct would cause a reasonable person in the same class under the same circumstances to feel the public accommodation discriminated against him/her.

Protected Class a Substantial Factor: The plaintiff’s protected category (here, gender) was a substantial factor motivating the harassment.

The court in Floeting determined that the employee’s harassment met all four elements. Accordingly, Group Health was directly responsible, and could be held liable, for the employee’s harassment of Floeting. The court held that a public accommodation employer can be liable for its employee’s harassment whether or not the employee was acting within the scope of employment. Also, liability is not based on the public accommodation’s prior knowledge of the employee’s bad acts.  

As a practical matter, the court seems to hold public accommodation employers strictly liable for their employees’ harassment, irrespective of any prior knowledge or other fault by the employer. The Floeting court denied that it imposed strict liability, however, and it is unclear how other courts will use the Floeting opinion.

Based on the Floeting case (which is good law only from the King County line north to Canada), there appear to be only a few things a public accommodation employer can do to protect itself from a sexual harassment suit by a customer, other than firing the offending employee:

  1. Amend employee handbooks and sexual harassment training to prohibitunwanted sexual behavior towards customers as well as towards co-workers.
  2. Update insurance coverage to include a robust policy of liability insurance covering similar customer claims.
  3. If confronted with a claim of employee harassment of a customer, consult legal counsel immediately.

Disclaimer

This advisory is a publication of Eisenhower Carlson PLLC. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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