Employers Liable for Employee's Sexual Harassment of Member of Public, Washington High Court Finds

Author: David B. Weisenfeld, XpertHR Legal Editor

February 7, 2019

The Washington Supreme Court has ruled that an employer is directly liable when one of its employees sexually harasses a member of the public, just as it would be if employees turned away customers based on their race, religion or sexual orientation.

The Washington Law Against Discrimination (WLAD) prohibits "any person or the person's agent or employee [from committing] an act" of discrimination in a place of public accommodation. The state high court found that this provision imposes direct liability on employers for the discriminatory conduct of their agents or employees.

The case involves a man's claims that a Group Health Cooperative employee repeatedly sexually harassed him while he was seeking medical treatment.

Group Health argued that it should not be held responsible for the "unforeseeable acts of an employee." It also contended that a different standard should apply to the acts of frontline employees than those of supervisors.

But the court disagreed, finding a rule that only actions by supervisors are imputed to the employer would result, in most cases, in no liability. It also stated, "Group Health will be liable if its employee caused the harm prohibited by the statute, even if it did not participate in the discrimination and was not negligent in training or supervising its employees." The court concluded that the WLAD's language required such an outcome.

However, a dissenting judge called the result "draconian" and an "illogical outcome." Justice Barbara Madsen noted that subjecting employers to a strict liability standard for the actions of nonsupervisory employees is "a far higher standard than in the workplace setting."

She wrote that the court has applied a "knew or should have known" standard to determine when employers should be vicariously liable in the workplace context and said the same standard should have been used in this case. Justice Madsen added that the decision will do little to stop discrimination in places of public accommodation because even if a diligent employer terminates the accused employee upon learning of the conduct, that is not enough to allow it to avoid strict liability.