Certification from the U.S. Dist. Court for the W. Dist. of Wash. in W.H. v. Olympia Sch. Dist., Corp.

• Decision Date: 18 June 2020
• Docket Number: No. 97630-9,97630-9
• Citation: 465 P.3d 322,195 Wash.2d 779
• Court: Washington Supreme Court
• Parties: Certification from the United States District Court for the Western District of Washington in W.H., as guardian for her minor daughter, P.H.; W.H., individually; J.H., individually; B.M., as guardian for her minor daughter, S.A.; and B.M., individually, Plaintiffs, v. OLYMPIA SCHOOL DISTRICT, a public corporation; Jennifer Priddy, individually; Frederick David Stanley, individually; Barbara Greer, individually; William V. Lahmann, individually; Dominic G. Cvitanich, individually, Defendants.

195 Wash.2d 779

465 P.3d 322

Certification from the United States District Court for the Western District of Washington in W.H., as guardian for her minor daughter, P.H.; W.H., individually; J.H., individually; B.M., as guardian for her minor daughter, S.A.; and B.M., individually, Plaintiffs,

v.OLYMPIA SCHOOL DISTRICT, a public corporation; Jennifer Priddy, individually; Frederick David Stanley, individually; Barbara Greer, individually; William V. Lahmann, individually; Dominic G. Cvitanich, individually, Defendants.

No. 97630-9

Supreme Court of Washington.

Argued March 12, 2020

Filed June 18, 2020

Darrell L. Cochran, Kevin Michael Hastings, Christopher Eric Love, Pfau Cochran Vertetis Amala PLLC, 911 Pacific Ave. Ste. 200, Tacoma, WA, for Plaintiff.

Gerald John Moberg, Attorney at Law, 124 3rd Ave. Sw, Ephrata, WA, Michael Early McFarland Jr., Attorney at Law, 818 W. Riverside Ave. Ste. 250, Spokane, WA, Kenneth Wendell, Shelby R. Frost Lemmel, Masters Law Group PLLC, 241 Madison Ave. N., Bainbridge Island, WA, for Defendant.

Michael Barr King, Rory Drew Cosgrove, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, for Amicus Curiae on behalf of Washington Defense Trial Lawyers.

Tiffany Mae Cartwright, Macdonald Hoague & Bayless, 705 2nd Ave. Ste. 1500, Seattle, WA, Courtney Chappell, Legal Voice, 907 Pine Street, Suite 500, Seattle, WA, for Amicus Curiae on behalf of Legal Voice.

Tyna Ek, Attorney at Law, 3704 Sw Lander St., Seattle, WA, for Amicus Curiae on behalf of Washington Schools Risk Management Pool.

Rebecca Jane Roe, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, Erin Kathleen Olson, Law Office of Erin Olson P.C., 2014 Ne Broadway St., Portland, OR, for Amicus Curiae on behalf of National Center for Victims of Crime.

Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.

WIGGINS, J.P.T.^*

¶1 The United States District Court for the Western District of Washington certified two questions to this court in connection with the meaning of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. First, the district court asked, "May a school district be subject to strict liability for discrimination by its employees in violation of the WLAD?" Order Granting Defs.’ Mot. To Certify Issues to Wash. State Supreme Ct. & To Stay Proceedings, W.H. v. Olympia Sch. Dist. , No. C16-5273 BHS (Certification Order), at 8. Second, it asked, "If a school district may be strictly liable for its employees’ discrimination under the WLAD, does ‘discrimination’ for the purposes of this cause of action encompass intentional sexual misconduct[,] including physical abuse and assault?" Id. at 10.

¶2 We answer yes to both questions. First, we hold that a school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the WLAD. Second, we hold that under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault.

FACTS AND PROCEDURAL HISTORY

¶3 In August 2005, the Olympia School District (District) hired Gary Shafer as a school bus driver. It is undisputed that Shafer, during his employment, abused passengers on school buses, including P.H. and S.A., the minor plaintiffs in this case.

¶4 In 2016, the plaintiffs sued the District in federal court, alongside several codefendants. They claimed both state and federal causes of action. The defendants moved for summary judgment in June 2017, which was granted in part and denied in part. The court denied the defendants’ motion to modify. The United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded to district court. W.H. v. Olympia Sch. Dist. , 738 F. App'x 565, 567 (9th Cir. 2018).

¶5 At the end of January 2019, we decided Floeting v. Group Health Cooperative , a case relevant today. 192 Wash.2d 848, 434 P.3d 39 (2019). In response to our decision in that case, the plaintiffs successfully moved to amend their complaint to include a claim under the WLAD. The amended complaint alleges that the minor plaintiffs’ treatment constituted sex discrimination in a place of public accommodation.

¶6 The defendants then moved to certify three questions regarding the WLAD claim to this court. The court granted the motion over the plaintiffs’ objection, certifying the above two questions to this court. Certification Order at 1, 8, 10.

¶7 The federal court declined to certify the third proposed question, which asked, "Where Floeting seeks to prevent gender-based discrimination in places of public accommodation, does it apply here, where sexual abuse (as opposed to harassment) is not based on gender, but on Shafer's criminal depravity toward children of both genders?" Defs.’ Mot. To Certify Issues to Wash. State Supreme Ct. & To Stay Proceedings, at 11. The district court decided that the third question was not "ripe for a legal determination" because "whether Plaintiffs can show gender was a substantial factor in the discrimination the minor Plaintiffs experienced remains a factual question at this point in the proceedings." Certification Order at 11.

STANDARD OF REVIEW

¶8 We review certified questions de novo. Broughton Lumber Co. v. BNSF Ry. Co. , 174 Wash.2d 619, 624, 278 P.3d 173 (2012) (citing Bradburn v. N. Cent. Reg'l Library Dist. , 168 Wash.2d 789, 799, 231 P.3d 166 (2010) ). We consider legal issues in certified questions not in the abstract but based on the record provided by the federal court. Id. We review questions of statutory interpretation de novo. Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9, 43 P.3d 4 (2002). We construe the WLAD "liberally for the accomplishment of the purposes thereof." RCW 49.60.020.

ANALYSIS

¶9 The provision of the WLAD at issue here, RCW 49.60.215, was first enacted in 1957. But the WLAD was not the first law prohibiting discrimination in our state. Our legislature has long taken seriously the problem of discrimination in places of public accommodation. In March of 1890—mere months after Washington became a state—the legislature passed a law criminalizing discrimination on the basis of race or national origin in places of public accommodation. LAWS OF 1889-1890, ch. 16, §§ 1-2, at 524. This was later codified into the Remington & Ballinger's Code in 1909; it is now RCW 9.91.010. The first private right of action emerged in 1921, with our decision in Anderson v. Pantages Theatre Co. , 114 Wash. 24, 28, 194 P. 813 (1921). There, we read a private cause of action into the criminal statute. Id.

¶10 Modern legislation against discrimination began in 1949. In that year, the legislature passed the Law Against Discrimination in Employment, which protected individuals against employment discrimination on the basis of race, creed, color, or national origin. LAWS OF 1949, ch. 183, pmbl., § 1. This created the right for individuals to bring complaints before the Washington State Board Against Discrimination in Employment, also established by the act. Id. §§ 4, 8.

¶11 In 1957, the legislature enacted the WLAD. LAWS OF 1957, ch. 37. Once more protecting against discrimination on the basis of "race, creed, color, or national origin," the WLAD prohibited discrimination in places of public accommodation. Id. §§ 1, 3. This section—now RCW 49.60.215 —makes it "an unfair practice for any person or [the person's] agent or employee to commit" a discriminatory act "in any place of public ... accommodation." Id. § 14.

¶12 In 1973, the legislature added age, marital status, and sex to the general categories protected. LAWS OF 1973, ch. 141, § 1. These amendments also expressly created a private right of action for violations of the WLAD, codified in RCW 49.60.030(2). Id. § 3. In 1985, the legislature added "sex" to RCW 49.60.215. LAWS OF 1985, ch. 203, § 1.

¶13 This court has of course been far from silent as the WLAD developed. Two cases are of particular note today. In Fell v. Spokane Transit Authority , 128 Wash.2d 618, 637, 911 P.2d 1319 (1996), we held that to make a prima facie public accommodations claim under RCW 49.60.215, the plaintiff must show that

(1) the plaintiff is a member of a protected class, (2) the defendant's establishment is a place of public accommodation, (3) the defendant discriminated against the plaintiff when it did not treat the plaintiff in a manner comparable to the treatment it provides to persons outside that class, and (4) the plaintiff's protected status was a substantial factor that caused the discrimination.

Floeting , 192 Wash.2d at 853, 434 P.3d 39 (citing Fell , 128 Wash.2d at 637, 911 P.2d 1319 ).

¶14 Most recently, we decided Floeting , 192 Wash.2d 848, 434 P.3d 39. In Floeting, we held that employers are strictly liable for the actions of their employees under RCW 49.60.215. Id. at 861, 434 P.3d 39. In resolving this question, we analyzed the plain language of the WLAD, recognizing that the "WLAD makes it unlawful for ‘any person or the person's agent or employee to commit an act’ of, among other things, discrimination in a place of public accommodation." Id. at 856, 434 P.3d 39 (quoting RCW 49.60.215). Therefore, we held that "[t]his provision imposes direct liability on employers for the discriminatory conduct of their agents and employees." Id. We added that " RCW 49.60.215 is not a negligence statute where foreseeability matters," but that the WLAD instead "imposes direct liability for discriminatory acts, regardless of the culpability of the actor." Id. We clarified that this means that the WLAD "imposes strict liability to the extent it does not allow an employer to escape liability by asserting a lack of fault." Id. at 859, 434 P.3d 39. We thus concluded, " RCW 49.60.215 imposes strict liability on employers for the actions of their employees." I...